In Re Application A-16642
236 Neb. 671, 463 N.W.2d 591 (1990)
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Rule of Law:
The Nebraska Constitution's appropriation doctrine does not require a physical diversion of water for a valid beneficial use, and state statutes authorizing instream flow appropriations for fish, recreation, and wildlife are constitutional as they fall within the "public interest" exception to the right to divert unappropriated waters.
Facts:
- The Nebraska Game and Parks Commission (Commission) filed an application (A-16642) for an instream flow appropriation in Long Pine Creek.
- Long Pine Creek is a 33-mile-long cold-water stream, a tributary of the Niobrara River, known as Nebraska's longest self-sustaining trout stream.
- The Commission requested specific instream flow rates at three study sites (upper, middle, and lower) along a segment of Long Pine Creek to maintain a naturally reproducing rainbow and brown trout fishery.
- Various parties, including The 25 Corporation, Inc., City of Ainsworth, Ainsworth Irrigation District, and Donald E. Zwiebel (complaining objectors), opposed the application.
- During administrative hearings, the City of Long Pine stipulated with the Commission that the water it captures for municipal supply is groundwater and not subject to the instream appropriation, subsequently withdrawing its objection.
- Discharge records for Long Pine Creek, including the Riverview and Long Pine gauges, show sustained flow rates even after senior appropriations, and increased discharge since the development of the Ainsworth Irrigation District in the 1960s due to seepage.
- The Ainsworth Irrigation District's contract with the U.S. Bureau of Reclamation reserved all waste, seepage, and return flow to the United States.
Procedural Posture:
- The Nebraska Game and Parks Commission filed Application A-16642 with the Director of Water Resources for an instream flow appropriation for Long Pine Creek.
- The 25 Corporation, Inc., City of Ainsworth, Ainsworth Irrigation District, Niobrara River Basin Development Association, Donald E. Zwiebel, Niobrara Basin Environmental Improvement Commission, City of Long Pine, and Brown County Board of Commissioners filed objections to the application.
- During lengthy administrative hearings, the City of Long Pine reached a stipulation with the Commission regarding its municipal water supply and subsequently withdrew its objection.
- The Director of Water Resources partially granted the application, denying an appropriation at the upper study site but granting 50 cubic feet per second (cfs) at the middle site and 60 cfs at the lower site.
- The 25 Corporation, Inc. (appellant), along with City of Ainsworth, Ainsworth Irrigation District, Niobrara River Basin Development Association, Donald E. Zwiebel, and Niobrara Basin Environmental Improvement Commission (appellees and cross-appellants) directly appealed the Director's order to the Supreme Court of Nebraska.
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Issue:
1. Is the statutory scheme authorizing instream flow appropriations in Nebraska, which does not require a physical diversion of water, constitutional under Neb. Const. art. XV, §§ 4, 5, and 6? 2. Did the Director of Water Resources misinterpret and misapply the statutory requirements for granting an instream appropriation, including the availability of unappropriated water, the necessity of the appropriation, the minimum necessary flow, and the public interest, or exceed his authority in modifying the stream segment boundaries?
Opinions:
Majority - Caporale, J.
Yes, the statutory scheme authorizing instream appropriations is constitutional, and the Director did not misinterpret or misapply the statutory requirements. The Court first addressed the constitutional challenge that instream flow appropriations, which do not involve physical diversion, are not "appropriations" under Neb. Const. art. XV, §§ 4, 5, and 6. The Court found nothing in these provisions expressly prohibits instream use. While the Constitution mentions the "right to divert," the Court reasoned this was to emphasize that appropriative rights were independent of riparian ownership, not to make physical diversion a constitutional prerequisite. The modern permit system already provides the necessary notice and quantification that physical diversion historically served. Referencing similar constitutional interpretations in Idaho and Colorado, the Court held that the "terms and provisions... 'are constantly expanded and enlarged by construction to meet the advancing affairs of men.'" Furthermore, the Constitution's "public interest" exception in § 6 allows the denial of appropriations when demanded by the public interest, and the Legislature has clearly found that instream uses for fish, recreation, and wildlife serve this public interest. Instream appropriations are also subject to cancellation and modification, showing they are not permanently fixed or an unconstitutional withdrawal of water. Regarding the Director's application of the statutes, the Court found: (1) The Director correctly determined sufficient unappropriated water was available by subtracting senior appropriations from historical flows. Seepage from the Irrigation District reaching the stream becomes public water available for appropriation, and the issue of potential future recapture was not ripe. (2) The Director correctly interpreted "necessary" in § 46-2,115(2) as requiring a sufficient causal link between maintaining the flow and maintaining the use, not a showing of "imminent threat." An imminent threat requirement would defeat the statute's purpose by allowing irreparable harm before protection. (3) The Director correctly interpreted "minimum necessary" in § 46-2,115(4) to mean the lowest flow rate that would assure no degradation in the quality of the existing fishery habitat, not merely "survival" habitat. This aligns with the application's stated purpose to "maintain the present fishery." (4) The Director's finding that the appropriation was in the public interest was supported by evidence. The statute does not require quantifying all social and environmental values into economic terms, and the Director considered the economic, social, and environmental values of the instream use versus foreseeable alternative out-of-stream uses. (5) The Director had the authority to reduce the length of the stream segment when denying the appropriation for a portion of it. This reduction was incidental to the flow reduction authorized by statute, and the selection of the Highway 20 bridge as the new upstream boundary was rational, based on hydrological characteristics. (6) The Director's approval of the stipulation between the Commission and Long Pine, treating Long Pine's municipal water supply as groundwater, was reasonable given that the water is collected underground before reaching the surface and the facility is registered as a well.
Analysis:
This case significantly broadens the interpretation of "appropriation" in Nebraska water law, moving beyond the traditional physical diversion requirement to include instream uses. It establishes that environmental and recreational uses of water can be recognized as beneficial appropriations under the doctrine of prior appropriation, a crucial development for water management in the arid West. The decision clarifies that the "public interest" clause in the Nebraska Constitution provides a basis for legislative action to protect instream flows. It sets a precedent that state agencies have the authority to manage and protect natural resources without necessarily demonstrating an "imminent threat" but rather a "causal link" to maintaining a desired environmental quality, impacting future environmental protection efforts.
