46-613.01. Ground water; transfer to another state; permit; Chief Water Officer; issuance; conditions.
713 words·~3 min read·
/ne/chapter-46/46-613-01A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
The Legislature recognizes and declares that the maintenance of an adequate source of ground water within this state is essential to the social stability of the state and the health, safety, and welfare of its citizens and that reasonable restrictions on the transportation of ground water from this state are a proper exercise of the police powers of the state. The need for such restrictions, which protect the health, safety, and general welfare of the citizens of this state, is hereby declared a matter of legislative determination.
Any person, firm, city, village, municipal corporation, or other entity intending to withdraw ground water from any water well located in the State of Nebraska and transport it for use in another state shall apply to the Chief Water Officer for a permit to do so. In determining whether to grant or deny such permit, the Chief Water Officer shall consider:
(1)The nature of the proposed use and whether it is a beneficial use of ground water;
(2)The availability to the applicant of alternative sources of surface or ground water;
(3)Any negative effect of the proposed withdrawal on ground water supplies needed to meet present or reasonable future demands for water in the area of the proposed withdrawal, to comply with any interstate compact or decree, or to fulfill the provisions of any other formal state contract or agreement;
(4)Any negative effect of the proposed withdrawal on surface water supplies needed to meet present or reasonable future demands within the state, to comply with any interstate compact or decree, or to fulfill the provisions of any other formal state contract or agreement;
(5)Any adverse environmental effect of the proposed withdrawal or transportation of ground water;
(6)The cumulative effect of the proposed withdrawal and transfer relative to the matters listed in subdivisions
(3)through
(7)of this section when considered in conjunction with all other transfers subject to this section; and
(7)Any other factors consistent with the purposes of this section that the Chief Water Officer deems relevant to protect the health, safety, and welfare of the state and its citizens.
Issuance of a permit shall be conditioned on the applicant's compliance with the rules and regulations of the natural resources district from which the water is to be withdrawn. The applicant shall be required to provide access to his or her property at reasonable times for purposes of inspection by officials of the district or the Chief Water Officer or the Chief Water Officer's representatives.
The Chief Water Officer may include such reasonable conditions on the proposed use as he or she deems necessary to carry out the purposes of this section.
This section does not unlawfully delegate legislative power to the director of the Department of Water Resources. This section is not unconstitutionally vague. This section does not discriminate against interstate commerce. Ponderosa Ridge LLC v. Banner County, 250 Neb. 944, 554 N.W.2d 151 (1996).
Severance of the portion of this section, to wit, "if the state in which the water is to be used grants reciprocal rights to withdraw and transport ground water from that state for use in the State of Nebraska", did not constitute an inducement to the passage of the statute, does not make the act inoperative, and will not frustrate the intent of the Legislature. The remainder of the statute, after the unconstitutional portion is stricken, remains a viable statute. State ex rel. Douglas v. Sporhase, 213 Neb. 484, 329 N.W.2d 855 (1983).
Requirement of obtaining permit to transfer ground water out of state does not violate commerce clause, U.S. Const. Art. I, § 8, since Nebraska ground water is not an article of commerce. Reciprocity provision does not violate due process guarantees since it is but a condition upon which the statute takes effect. This section does not violate equal protection since it operates equally upon all members of the class affected and class bears a reasonable relationship to a legitimate state interest.
This section does not deprive affected persons of liberty or property since they have no property right in the water itself and are not at liberty to transfer ground water off overlying land without public consent. State ex rel. Douglas v. Sporhase, 208 Neb. 703, 305 N.W.2d 614 (1981).