Hitchcock and Red Willow Irr. Dist., In re, 86

Decision Date31 July 1987
Docket NumberNo. 86,86
Citation226 Neb. 146,410 N.W.2d 101
PartiesIn re Application A 15738 of the HITCHCOCK AND RED WILLOW IRRIGATION DISTRICT et al. HITCHCOCK AND RED WILLOW IRRIGATION DISTRICT et al., Appellants, v. LOWER PLATTE NORTH NATURAL RESOURCES DISTRICT et al., Appellees. 008.
CourtNebraska Supreme Court

Syllabus by the Court

1. Administrative Law: Waters: Appeal and Error: Case Overruled. The proper standard of review for the Supreme Court to follow in cases involving appeals from the Department of Water Resources under the provisions of Neb.Rev.Stat. § 46 210 (Reissue 1984) is to search only for errors appearing in the record; i.e., does the judgment conform to law, is it supported by competent and relevant evidence, and was the action neither arbitrary, capricious, nor unreasonable? To the extent that In re Applications A 15995 and A 16006, 223 Neb. 430, 390 N.W.2d 506 (1986), holds to the contrary, it is overruled.

2. Constitutional Law: Waters. The right to divert unappropriated waters of every natural stream for beneficial use shall never be denied except when such denial is demanded by the public interest.

3. Constitutional Law: Waters. The use of the water of every natural stream within the State of Nebraska is dedicated to the people of the state for beneficial purposes. Thus, the first characteristic of the appropriative right is that the holder possesses merely a usufructuary right.

4. Waters. The appropriator of the waters of a stream acquires a right to the use of such water for beneficial purposes, but does not acquire ownership of such water.

5. Waters. The second characteristic of the appropriative right of water in a natural stream is that the application of water to a beneficial use operates as a condition subsequent which in fact fixes the extent of the right originally acquired.

6. Waters: Words and Phrases. Unappropriated water is that water which is available for appropriation because it is not subject to an existing appropriation right.

7. Waters. Although there may be some unappropriated water available at a proposed diversion point, the existence of a dependable water supply is essential to the success of any irrigation project and where, on the average, but an insignificant supply of water in relation to the maximum demand of the proposed appropriator is available, there is not a source of unappropriated water at the proposed diversion site.

8. Waters. For a quantity of unappropriated water to be available at a proposed diversion point, it must be available in a supply which is fairly continuous and dependable.

9. Statutes: Words and Phrases: Waters. Because the word "may" in a statute will be given its ordinary, permissive, and discretionary meaning unless it can be shown that the intent of the drafters would be defeated by the application of such a meaning, the Department of Water Resources may decline to approve an appropriation of water which is significantly less than the application requests under Neb.Rev.Stat. § 46 235 (Reissue 1984).

10. Waters. In order to be able to assess the impact on the public interest of a proposed project for the diversion of water, the project's design must be definite enough to reflect its impacts and implications to generally apprise the public of the efficacy of the proposed use of the planned facility and of its potential impact.

11. Waters. Where the evidence supports the proposition that the benefits to the state would be greatly enhanced by using the available unappropriated water in the river of its origin, rather than to divert it to another river basin, a denial of such transbasin diversion is demanded by the public interest.

Robert B. Crosby and Steven G. Seglin of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellants.

Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee State of Neb.

George E. Svoboda of Sidner, Svoboda, Schilke, Wiseman, Thomsen, Holtorf & Boggy, Fremont, for appellees Lower Platte North Natural Resources Dist. et al.

Lyle B. Gill, Fremont City Atty., for appellee City of Fremont.

Richard G. Kopf of Cook, Kopf & Doyle, P.C., Lexington, for appellee Central Platte Natural Resources Dist.

Jess C. Nielsen of Nielsen & Birch, North Platte, for appellee Twin Platte Natural Resources Dist.

Christopher H. Meyer, Boulder, Colo., for appellee Nat. Wildlife Federation.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, and GRANT, JJ., and McCOWN, J., Retired.

HASTINGS, Justice.

Three irrigation districts in southwest Nebraska appeal from an order entered by the director of the Nebraska Department of Water Resources (department) denying their application for authority to divert water from the South Platte River for storage in Enders Reservoir near Imperial, Nebraska. We affirm.

The Hitchcock and Red Willow (H & RW), Frenchman Valley, and Frenchman-Cambridge Irrigation Districts filed an application with the department on December 19, 1980, for a permit authorizing the impoundment of approximately 45,000 acre-feet of water in Enders Reservoir. The source of water was listed as the South Platte River at a location near Big Springs, Nebraska. The appellants proposed a transbasin diversion of water from the South Platte River basin to the Republican River basin, as the water would be transported about 45 miles south by pipeline or canal to the Frenchman River, which flows into Enders Reservoir and eventually into the Republican River. Such a diversion was proposed to supplement the diminished flows in the Frenchman River and resulting lower water levels in Enders Reservoir brought about in part by increased groundwater development in the area. The appellants listed 1990 as the approximate date that water would first be impounded.

The magnitude of the record in this case points out the difficult and almost impossible task that our own rules have imposed upon this court. The application for diversion was filed with the Nebraska Department of Water Resources on December 19, 1980, which resulted in over 30 days of hearings culminating with an order entered by the director on November 4, 1985. The direct testimony constitutes approximately 5,600 pages of the bill of exceptions, consisting of some questions nearly a page in length and many answers covering several pages. In addition, there are exhibits in this case exceeding 3,000 pages of testimony from In re Applications A 15145 through A 15148, now also pending in this court as case No. 86 692. Finally, there are approximately 400 technical exhibits, ranging from single-page statistical printouts and maps to books and scientific treatises exceeding 400 pages in length.

The foregoing statement is only relevant to point up to us the possible need of altering our appellate practice to require the filing of a manageable statement of the case in lieu of a complete record of this magnitude.

The record does disclose that Enders Reservoir is owned by the Bureau of Reclamation, U.S. Department of the Interior. Water is delivered from the reservoir to the H & RW and Frenchman Valley Irrigation Districts through canals originating at a diversion dam about 50 river miles downstream from Enders Reservoir. The canals serve about 11,500 acres in the H & RW Irrigation District in Hitchcock and Red Willow Counties and about 9,600 acres in the Frenchman Valley Irrigation District in Hitchcock County, and the two districts together planned to use 35,000 acre-feet of the proposed diversion. The Frenchman-Cambridge Irrigation District, the majority of which is located downstream from the other two districts on the Republican River, joined as an applicant for the remaining 10,000 acre-feet.

Objections to the application were filed by numerous parties, including conservation groups, natural resource districts, and municipalities. The director conducted a lengthy hearing on the application. At the request of the parties, the proceedings were governed by the rules of evidence applicable in district court.

Pursuant to the Nongame and Endangered Species Conservation Act, Neb.Rev.Stat. §§ 37 430 et seq. (Reissue 1984), the applicants and the director initiated consultation with the Game and Parks Commission. The commission prepared a written biological opinion which concluded that the proposed diversion would jeopardize the continued existence of the whooping crane, bald eagle, and least tern. The director first admitted the biological opinion into evidence only to show consultation with the Game and Parks Commission, but he subsequently admitted it for the truth of the matter asserted therein. The director also denied requests by the applicants and one of the objectors for authorization to take depositions of the authors of the biological opinion and to subpoena them as witnesses.

The director issued an order dated November 4, 1985, denying the application and concluding the following: (1) that there was not a source of unappropriated water at applicants' proposed diversion point sufficient to meet their demand; (2) that when considering the provisions of Neb.Rev.Stat. § 46 289 (Reissue 1984), which sets forth factors to consider when evaluating an interbasin transfer of water, applicants failed to meet the public interest test, most seriously falling short in addressing impacts to fish and wildlife; and (3) that applicants did not overcome the burden placed upon them by § 37 435(3) of the Nongame and Endangered Species Conservation Act to show that their proposal would not adversely impact endangered species.

The applicants raise no issues based on differences of testimony regarding facts, but raise the following assignments of error: (1) that the director incorrectly considered the likelihood of success of the proposed irrigation project when determining whether there was unappropriated water; (2) that the director applied an incorrect balancing test when considering the factors listed in § 46 289; (3) that § 46 289 is...

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