46-2,115. Application for instream appropriation; approval; when.

An application for an instream appropriation which is pending on or filed after January 1, 1997, shall be approved by the director if he or she finds that:

(1) In order to allow for future beneficial uses, there is unappropriated water available to provide the approved instream flow rate at least twenty percent of the time during the period requested;

(2) The appropriation is necessary to maintain the existing recreational uses or needs of existing fish and wildlife species;

(3) The appropriation will not interfere with any senior surface water appropriation;

(4) The rate and timing of the flow is the minimum necessary to maintain the existing recreational uses or needs of existing fish and wildlife species; and

(5) The application is in the public interest.

The application may be granted for a rate of flow that is less than that requested by the applicant or for a shorter period of time than requested by the applicant.

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Annotations

To find that there is sufficient unappropriated water available under subsection (1) of this section, the director is not required to consider future ground water depletion. To find that there is sufficient unappropriated water available under subsection (1) of this section, the director must account for water which may be diverted by pending senior applications and approved-but-unconstructed senior applications. To find that there is sufficient unappropriated water available under subsection (1) of this section, the director must find that there is enough water that is not subject to beneficial use elsewhere. The director is permitted to base this finding on historical flow data. For a water supply to be "available" within the meaning of subsection (1) of this section, the water supply must be fairly dependable and continuous. In the context of an instream flow application to maintain existing wildlife habitats, "fairly dependable and continuous" means the flow regime which the species can bear. A party can show noninterference, under subsection (3) of this section, by showing that the sought-after appropriation will be (1) an undiverted application (2) of the waters of a natural stream within or bordering upon the state (3) for recreation or fish and wildlife purposes. In order to provide a clear basis for an order granting or denying an instream flow application, the Director of Water Resources is required to discuss each of the elements listed in this section. However, the director is not required to include, as part of his public interest analysis, a discussion of forgone uses. Central Platte NRD v. State of Wyoming, 245 Neb. 439, 513 N.W.2d 847 (1994).

Subsection (2) of this section does not require a showing of an imminent threat to the use for which protection is sought, but requires a finding of a sufficient causal link between maintaining the flow and maintaining the use for which the flow is requested. In re Application A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990).

When an instream flow application requests different flow rates at different locations along a single stream segment, the denial of the application as one location is to be viewed as a reduction in the requested rate of flow as authorized by this section. Any reduction in the length of the stream segment occasioned by such denial is but incidental to the flow reduction, and the director may define the stream segment under section 46-2,118(1) in such a way as to reflect the appropriations as granted. In re Application A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990).