Nebraska State Constitution Article XV-6

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XV-6. Right to divert unappropriated waters.

The right to divert unappropriated waters of every natural stream for beneficial use shall never be denied except when such denial is demanded by the public interest. Priority of appropriation shall give the better right as between those using the water for the same purpose, but when the waters of any natural stream are not sufficient for the use of all those desiring to use the same, those using the water for domestic purposes shall have preference over those claiming it for any other purpose, and those using the water for agricultural purposes shall have the preference over those using the same for manufacturing purposes. Provided, no inferior right to the use of the waters of this state shall be acquired by a superior right without just compensation therefor to the inferior user.

Source

    Neb. Const. art. XIV, sec. 6 (1920);
    Adopted 1920, Constitutional Convention, 1919-1920, No. 35;
    Transferred by Constitutional Convention, 1919-1920, art. XV, sec. 6.

Annotations

    1. Appropriation for domestic purposes

    2. Appropriation for irrigation

    3. Compensation

    4. State's powers

    5. Miscellaneous

    1. Appropriation for domestic purposes

    Preference is given to appropriators using water for domestic and agricultural purposes. Cozad Ditch Co. v. Central Neb. Public Power & Irr. Co., 132 Neb. 547, 272 N.W. 560 (1937).

    2. Appropriation for irrigation

    The right to appropriate water for irrigation purposes is limited to water of natural streams. Rogers v. Petsch, 174 Neb. 313, 117 N.W.2d 771 (1962).

    Rights of irrigation in Nebraska exist only as created and defined in constitutional provisions and statutes, and right of appropriation for irrigation is limited to natural streams. Drainage Dist. No. 1 of Lincoln v. Suburban Irr. Dist., 139 Neb. 460, 298 N.W. 131 (1941).

    3. Compensation

    Claim made and rejected that appropriation of surface and ground waters without compensation violated this section. Dischner v. Loup River P. P. Dist., 147 Neb. 949, 25 N.W.2d 813 (1947).

    While those using waters for irrigation purposes are entitled to preference over those using it for power purposes, waters previously appropriated for power purposes may be taken and appropriated by a junior appropriator in point of time for irrigation only upon due and fair compensation. Loup River Public Power Dist. v. North Loup River Public Power & Irr. Dist., 142 Neb. 141, 5 N.W.2d 240 (1942).

    4. State's powers

    This provision does not require that the director engage in a particular sequential consideration of the issues presented by an application. This provision is not self-executing. Central Platte NRD v. City of Fremont, 250 Neb. 252, 549 N.W.2d 112 (1996).

    This provision is not self-executing, and it is, therefore, within the Legislature's province to pass statutes to delineate the public interest. In re Applications A-16027 et al., 242 Neb. 315, 495 N.W.2d 23 (1993).

    Sections 46-2,107 through 46-2,119, permitting instream flow appropriations, do not offend this provision or Neb. Const. art. XV, section 4 or 5. In re Application A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990).

    The state has the right, under both the police powers and the Nebraska Constitution, to regulate the use of natural rivers and streams so that waste is eliminated. In re Water Appropriation Nos. 442A, 461, 462 & 485, 210 Neb. 161, 313 N.W.2d 271 (1981).

    Allowance or denial of application for appropriation of water was within jurisdiction of Department of Water Resources. Ainsworth Irr. Dist. v. Bejot, 170 Neb. 257, 102 N.W.2d 416 (1960).

    5. Miscellaneous

    The use of the term "divert" in this provision is not intended to prohibit nondiversionary appropriations, but to stress that the appropriative right is independent of riparian ownership. There is nothing in the Constitution which indicates that this provision is the exclusive means of acquiring a water right. The adoption of this provision did not do away with riparian rights. In re Application A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990).

    Unappropriated water is that water which is available for appropriation because it is not subject to an existing appropriative right. In re Application A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990).

    Riparian rights were not abolished by this section. Wassenburger v. Coffee, 180 Neb. 149, 141 N.W.2d 738 (1966).

    Water rights become vested as of date of appropriation and junior appropriators may use available water within limits of their appropriation as long as rights of senior appropriators are not injured or damaged. State ex rel. Cary v. Cochran, 138 Neb. 163, 292 N.W. 239 (1940).