Little Blue Natural Resources Dist. v. Lower Platte North Natural Resources Dist.

• Decision Date: 24 June 1980
• Docket Number: No. 42853,42853
• Citation: 206 Neb. 535,294 N.W.2d 598
• Parties: , 14 ERC 1726, 10 Envtl. L. Rep. 20,796 LITTLE BLUE NATURAL RESOURCES DISTRICT, Appellant, v. LOWER PLATTE NORTH NATURAL RESOURCES DISTRICT et al., Appellees.
• Court: Nebraska Supreme Court

Page 598

294 N.W.2d 598

206 Neb. 535, 14 ERC 1726, 10 Envtl. L. Rep. 20,796

LITTLE BLUE NATURAL RESOURCES DISTRICT, Appellant, v. LOWER PLATTE NORTH NATURAL RESOURCES DISTRICT et al., Appellees.

No. 42853.

Supreme Court of Nebraska.

June 24, 1980.

Syllabus by the Court

1. Transbasin Diversion: Irrigation. The unappropriated waters of every natural stream within the State of Nebraska may be diverted from one basin to another, except when such diversion is contrary to the public interest, in which case it shall be denied.

2. Statutes. Where the language of a statute is plain and unambiguous, no interpretation is needed and the court is without authority to change the language.

3. Statutes. In interpreting the meaning of a statutory provision the whole provision should be read in order to arrive at a conclusion as to its proper meaning.

4. Statutes. Courts should give statutory language its plain and ordinary meaning.

5. Statutes. A statute is not to be read as if open to construction as a matter of course. Where the words of a statute are plain, direct, and unambiguous, no interpretation is needed to ascertain the meaning.

6. Statutes. In the construction of a statute, no sentence, clause, or word should be rejected as meaningless or superfluous.

7. Statutes: Repeal of Statutes. Repeals by implication are not favored. A statute will not be considered repealed by implication unless the repugnancy between the new provision and the former statute is plain and unavoidable.

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

George E. Svoboda and Sidner, Svoboda, Schilke, Wiseman & Thomsen, Fremont, for appellees Lower Platte North, Loup River P. P. D., Lower Loup-Platte Water Assn., North Bend, Sanitary Improvement Dist. No. 3, Save the Platte Committee, Dennis Kucera, William D. Ingwersen, Frances M. Creech, William D. Hewit, John G. Tomek, et al.

James I. Shamberg of Cronin, Shamberg & Wolf, Grand Island, for appellees Central Platte N. R. D., Wood River, Marcia Oldfather, Leslie & Charlotte A. Robinson, Spring Creek Citizens Committee, County of Merrick, County of Dawson, Kearney, Harold Green, Jr., James B. Beltzer, John A. Wagoner, Joseph D. Martin & Herbert F. Mayer, Jr.

William F. Austin, City Atty., and William G. Blake, Asst. City Atty., Lincoln, for appellee City of Lincoln.

James H. Truell, City Atty., Grand Island, for appellee City of Grand island.

Duane A. Burns and Mayer, Burns & Mayer, Grand Island, for appellee Central Nebraska Conservation Assn.

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

Patrick A. Parenteau, Washington, D. C., for appellees National Wildlife Federation, Neb. Wildlife Federation, & Save the Platte Committee.

David C. Nuttleman of Holtorf, Hansen, Kovarik & Nuttleman, Gering, for appellee North Platte N. R. D.

Jess C. Nielsen and Richard A. Birch of Jess C. Nielsen Law Offices, North Platte, for appellees Twin Platte N. R. D. et al.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

The present appeal calls upon this court to decide whether transbasin diversion is prohibited by either the Constitution or the Laws of the State of Nebraska. While the resolution of that issue is of great importance, the issue necessary to determine that matter is extremely narrow. We believe that a reading of the pertinent sections of both the Nebraska Constitution and the applicable statutes leads us to the inescapable conclusion that transbasin diversion is not prohibited in Nebraska. We must, therefore, reverse and remand this matter to the director of the Department of Water Resources for further proceedings in accordance with this opinion.

The Little Blue Natural Resources District appeals from the order of the director of the Department of Water Resources dismissing its applications for authority to divert and store water from the Platte River for irrigation purposes.

The applications, which were filed on November 28, 1977, were dismissed without prejudice by the director on January 5, 1978. Pursuant to the rules of the department, the applicant then filed petitions for rehearing. Objections were filed by numerous parties including riparian owners, natural resources districts, and municipalities. After a lengthy hearing, the director denied the applications. From that order the applicant has appealed to this court.

The applicant is a natural resources district established under Neb.Rev.Stat. § 2-3203 (Reissue 1977). Its territory includes parts of Adams, Webster, Clay, Nuckolls, Fillmore, Thayer, and Jefferson Counties. Much of the farmland within the district is suitable to irrigation but is farmed as dryland because of the lack of a ground water aquifer. An irrigation project was conceived and developed by the district to provide supplemental water to this area.

The project as proposed by the district contains three service areas. The North Service Area would be located generally in southeastern Kearney County, southwestern Adams County, and northwestern Webster County. The Central Service Area would be located generally in northern Webster County south of Campbell, Bladen, and Blue Hill. The East Service Area would be located generally in northeastern Webster County, northwestern Nuckolls County, and southwestern Clay County. The project includes a reservoir to be constructed on the Little Blue River northwest of Campbell, Nebraska, in Franklin County.

Water to supply the project would be diverted from the Platte River and transported through canals to the reservoir near Campbell. The applications which were filed by the district were for authority to divert 450 cubic feet of water per second of time from the river and to store 125,000 acre-feet of water in the reservoir near Campbell.

The Central Nebraska Public Power and Irrigation District, generally known as Tri-County, operates a supply canal south of the Platte River which transports water from a diversion dam on the Platte River east of North Platte, Nebraska, to a point near Overton, Nebraska, where the supply canal joins the Phelps County canal, a major irrigation canal operated by Tri-County. A wasteway located at this junction is used to return water to the river when it is not to be used for irrigation purposes. A gate located at the junction is used to send water in the supply canal into the Phelps County canal or into the wasteway.

The Little Blue project contemplates taking water at this structure, which would otherwise be returned through the wasteway to the river, and carrying it to the Campbell reservoir for storage for use during the following season. The plan contemplates the use of the Phelps County canal to a point near Axtell, Nebraska, where a new supply canal would be constructed which would connect with the Little Blue River southwest of Minden, Nebraska.

Since the Tri-County district would be using water for irrigation during the months of April through August, the Little Blue project would use the flow in the supply canal from September until January and would take only water which would otherwise be returned to the Platte River through the wasteway.

Although the parties raised some controversy as to the point of diversion, we think it is clear that the point of diversion is the location of the wasteway in the Platte River and it is of no importance that the Little Blue project proposes to take the water at the structure where the supply canal joins the Phelps County canal. It would indeed be wasteful to compel the construction of a new diversion dam to recapture the water after it has been discharged into the river. The plan which the Little Blue project has devised is the legal equivalent of such a method and the point of diversion is the location of the wasteway where it joins the Platte River.

The director found there was unappropriated water in the Platte River sufficient to meet the demands of the proposed project, but that approval of the applications would result in water for irrigation purposes being taken from the Platte River and applied to land outside the basin of the Platte River, contrary to the rules announced by this court in Osterman v. Central Nebraska Public Power and Irrigation District, 131 Neb. 356, 268 N.W. 334 (1936). The director concluded that the Osterman case was controlling and, for that reason, the department was without authority to approve the applications. The applicant has appealed from the order denying the applications.

The finding of the director that there was unappropriated water in the Platte River sufficient to meet the demands of the proposed project is sustained by the record. The evidence shows that, after Lake McConaughy became filled in 1941, an average of more than 500,000 acre-feet of water has been discharged into the river through the Johnson wasteway near Overton, Nebraska, each year. In 1956, the year of the lowest discharge, 298,800 acre-feet of water was returned to the river through the wasteway. The average yearly river flow as measured at the Overton gauge downstream from the Johnson wasteway, but not including the discharge from the wasteway, has amounted to over 500,000 acre-feet. This evidence sustains a finding that there is sufficient unappropriated water to satisfy the applicant's appropriation of 125,000 acre-feet per year. If, in any particular year and for any reason, there was not sufficient water to satisfy the applicant's appropriation, the needs of the prior appropriators would be satisfied first, in accordance with the laws and regulations governing the appropriation of water, and the applicant would be restricted as to the amount of water available for its use.

The narrow issue we need consider is whether, as urged by the appellees, our previous decision in Osterman is correct and transbasin diversion is prohibited in this state; or whether, as urged by the appellant,...