Nebraska Administrative Code › Topic - NATURAL RESOURCES, DEPARTMENT OF › Title 457 - DEPARTMENT OF NATURAL RESOURCES RULES FOR SURFACE WATER › Chapter 24 - DETERMINATION OF FULLY APPROPRIATED BASINS, SUB-BASINS OR REACHES › Section 457-24-001 - FULLY APPROPRIATED

Current through June 17, 2024
Pursuant to
Neb
.
Rev
.
Stat
. §
									46-713(3)
				   (Reissue 2004, as amended), a river basin,
				  subbasin, or reach shall be deemed fully appropriated if the Department of
				  Natural Resources determines that then-current uses of hydrologically connected
				  surface water and ground water in the river basin, subbasin, or reach cause or
				  will in the reasonably foreseeable future cause (a) the surface water supply to
				  be insufficient to sustain over the long term the beneficial or useful purposes
				  for which existing natural flow or storage appropriations were granted and the
				  beneficial or useful purposes for which, at the time of approval, any existing
				  instream appropriation was granted, (b) the streamflow to be insufficient to
				  sustain over the long term the beneficial uses from wells constructed in
				  aquifers dependent on recharge from the river or stream involved, or (c)
				  reduction in the flow of a river or stream sufficient to cause noncompliance by
				  Nebraska with an interstate compact or decree, other formal state contract or
				  agreement, or applicable state or federal laws.
001.01A Except as provided in
				001.01C below,
				for purposes of Section
				46-713(3)(a),
				the surface water supply for a river basin, subbasin, or reach shall be deemed
				insufficient, if after considering the impact of the lag effect from existing
				groundwater pumping in the hydrologically connected area that will deplete the
				water supply within the next 25 years, it is projected that during the period
				of May 1 through September 30, inclusive, the most junior irrigation right will
				be unable to divert sufficient surface water to meet on average eighty-five
				percent of the annual crop irrigation requirement, or, during the period of
				July 1 through August 31, inclusive, will be unable to divert sufficient
				surface water to meet at least sixty-five percent of the annual crop irrigation
				requirement.
For purposes of this rule, the "annual crop irrigation
				  requirement" will be determined by the annual irrigation requirement for corn.
				  This requirement is based on the average evapotranspiration of corn that is
				  fully watered to achieve the maximum yield and the average amount of
				  precipitation that is effective in meeting the crop water requirements for the
				  area.
The inability to divert will be based on stream flow data and
				  diversion records, if such records are available for the most junior surface
				  water appropriator. If these records are not available, the inability to divert
				  will be based on the average number of days within each time period (May 1 to
				  September 30 and July 1 to August 31) that the most junior surface water
				  appropriation for irrigation would have been closed by the Department and
				  therefore could not have diverted during the previous 20 year period. In making
				  this calculation, if sufficient stream flow data and diversion data are not
				  available, it will be assumed that if the appropriator was not closed, the
				  appropriator could have diverted at the full permitted diversion rate. In
				  addition the historical record will be adjusted to include the impacts of all
				  currently existing surface water appropriations and the projected future
				  impacts from currently existing ground water wells. The projected future
				  impacts from ground water wells to be included shall be the impacts from ground
				  water wells located in the hydrologically connected area that will impact the
				  water supply over the next 25 year period.
001.01B In the event that the junior water
				rights are not irrigation rights, the Department will utilize a standard of
				interference appropriate for the use, taking into account the purpose for which
				the appropriation was granted.
001.01C If, at the time of the priority date
				of the most junior appropriation, the surface water appropriation could not
				have diverted surface water a sufficient number of days on average for the
				previous 20 years to satisfy the requirements of
				001.01A, the
				surface water supply for a river basin, subbasin, or reach in which that
				surface water appropriation is located shall be deemed insufficient only if the
				average number of days surface water could have been diverted over the previous
				20 years is less than the average number of days surface water could have been
				diverted for the 20 years previous to the time of the priority date of the
				appropriation.
When making this comparison, the calculations will follow the
				  same procedures as described in
				  001.01A. When
				  calculating the number of days an appropriator could have diverted at the time
				  of the priority date of the appropriation, the impacts of all appropriations
				  existing on the priority date of the appropriation and the impacts of wells
				  existing on the priority date of the appropriation shall be applied in the same
				  manner as in
				  001.01A. As in
				  001.01A above, in
				  making this calculation, if sufficient stream flow data and diversion data are
				  not available, it will be assumed that if the appropriator was not closed, the
				  appropriator could have diverted at the full permitted diversion rate.
Use of the method described in this rule is not intended to
				  express or imply any mandate or requirement that the method used herein must be
				  included in the goals and objectives of any integrated management plan adopted
				  for a river basin, subbasin or reach determined to be fully appropriated under
				  this rule. Further, nothing in this section is intended to express or imply a
				  priority of use between surface water uses and ground water uses.
001.02 The geographic area within which the
				Department preliminarily considers surface water and ground water to be
				hydrologically connected for the purpose prescribed in Section
				46-713(3)
				 is the area within which pumping of a well
				for 50 years will deplete the river or a base flow tributary thereof by at
				least 10 percent of the amount pumped in that time.