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

No. 42853 (294 N.W.2d 598, 206 Neb. 535, 14 ERC 1726) (Neb. June 24, 1980)

ELR Digest

The court rules that the unappropriated waters of every natural stream within the State of Nebraska may be diverted from one water basin to another, unless such diversion is contrary to the public interest. Appellant had applied to the Department of Water Resources for authority to divert water from the Platte River to the Little Blue River for an irrigation project. The Director of the Department of Water Resources, although correctly finding that there was sufficient unappropriated water for the project, denied the application because it would be contrary to Osterman v. Central Neb. Public Power & Irrigation Dist., 268 N.W. 334 (Neb. 1936), which prohibited the use of an irrigation ditch that would prevent unused waters from being returned to the original river basin. Specifically overruling Osterman, the court notes that the earlier decision totally ignored the Nebraska Constitution and statutes. First, the court emphasizes that the constitution does not limit the use of water to within a particular watershed basin. To the contrary, Article XV, § 5 mandates that the use of every stream, regardless of location, is dedicated to all the people of the state, and Article XV, § 6 prohibits denying the right to divert unappropriated waters except when demanded by the public interest. Second, §§ 46-206 and 46-265 of the Nebraska Revised Statutes permit the diversion of 75 percent of the unappropriated waters from streams exceeding 100 feet in width, so long as no waste is permitted and the unused portion is returned to its stream of origin or to the Missouri River. Finally, the court reverses the director's decision and remands to the director to determine if the unappropriated waters of the Platte River can be transferred without damage to the public interest.

The full text of this opinion is available from ELR (3 pp. $1.00, ELR Order No. C-1219).

Counsel for Appellant
Robert B. Crosby, Steven G. Seglin
Crosby, Guenzel, Davis, Kessner & Kuester
400 Lincoln Benefit Bldg., 134 S. 13th St., Lincoln NE 68508
(402) 475-5131

Counsel for Appellees Lower Platte North Natural Resources District et al.
George E. Svoboda
Sidner, Svoboda, Schilke, Wiseman & Thomsen
First Nat'l Bank Bldg., Fremont NE 68025
(402) 721-7111

Counsel for Appellee Central Nebraska Conservation Ass'n
Duane A. Burns
Mayer, Burns & Mayer
305 First Nat'l Bank Bldg., Grand Island NE 68801
(308) 384-1120

Counsel for Appellees Nat'l Wildlife Fed'n et al.
Patrick A. Parenteau
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Krivosha, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]