Nebraska Revised Statutes

Neb. Rev. Stat. § 46-229.02 (2026)

Appropriations; preliminary determination of nonuse; notice; order of cancellation; procedure

✓ current as of July 2026

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(1) If, based upon the results of a field investigation or upon information, however obtained, the Chief Water Officer makes preliminary determinations (a) that an appropriation has not been used, in whole or in part, for a beneficial or useful purpose or having been so used at one time has ceased to be used, in whole or in part, for such purpose for more than five consecutive years and (b) that the Chief Water Officer knows of no reason that constitutes sufficient cause, as provided in section 46-229.04, for such nonuse or that such nonuse has continued beyond the additional time permitted because of the existence of any applicable sufficient cause, the Chief Water Officer shall serve notice of such preliminary determinations upon the owner or owners of such appropriation and upon any other person who is an owner of the land under such appropriation. Such notice shall contain the information required by section 46-229.03, shall be provided in the manner required by such section, and shall be posted on the department's website. Each owner of the appropriation and any owner of the land under such appropriation shall have thirty days after the mailing or last publication, as applicable, of such notice to notify the Chief Water Officer, on a form provided by the department, that such owner contests the Chief Water Officer's preliminary determination of nonuse or the department's preliminary determination of the absence of sufficient cause for such nonuse. Such notification shall indicate the reason or reasons the owner is contesting the Chief Water Officer's preliminary determination and include any information the owner believes is relevant to the issues of nonuse or sufficient cause for such nonuse.

(2) If no owner of the appropriation or of the land under the appropriation provides notification to the Chief Water Officer in accordance with subsection (1) of this section, the Chief Water Officer may issue an order canceling the appropriation in whole or in part. The extent of such cancellation shall not exceed the extent described in the Chief Water Officer's notice to the owner or owners in accordance with subsection (1) of this section. A copy of the order canceling the appropriation, or part thereof, shall be posted on the department's website and shall be provided to the owner or owners of the appropriation and to any other owner of the land under the appropriation in the same manner that notices are to be given in accordance with subsection (2), (3), or (4) of section 46-229.03, as applicable. No cancellation under this subsection shall prohibit an irrigation district, a reclamation district, a public power and irrigation district, or a mutual irrigation company or canal company from asserting the rights provided by subsections (5) and (6) of section 46-229.04.

(3) If an owner of the appropriation provides notification to the Chief Water Officer in accordance with subsection (1) of this section, the Chief Water Officer shall review the owner's stated reasons for contesting the Chief Water Officer's preliminary determination and any other information provided with the owner's notice. If the Chief Water Officer determines that the owner has provided sufficient information for the Chief Water Officer to conclude that the appropriation should not be canceled, in whole or in part, the Chief Water Officer shall inform the owners of the appropriation, and any other owners of the land under the appropriation, of such determination.

(4) If the Chief Water Officer determines that an owner has provided sufficient information to support the conclusion that the appropriation should be canceled only in part and if (a) the owner or owners filing the notice of contest agree in writing to such cancellation in part and (b) such owner or owners are the only known owners of the appropriation and of the land under the appropriation, the Chief Water Officer may issue an order canceling the appropriation to the extent agreed to by the owner or owners and shall provide a copy of such order to such owner or owners.

(5) If the Chief Water Officer determines that subsections (2), (3), and (4) of this section do not apply, the Chief Water Officer shall schedule and conduct a hearing on the cancellation of the appropriation in whole or in part. Notice of the hearing shall be provided to the owner or owners who filed notices with the Chief Water Officer pursuant to subsection (1) of this section, to any other owner of the appropriation known to the Chief Water Officer, and to any other owner of the land under the appropriation. The notice shall be posted on the department's website and shall be served or published, as applicable, in the manner provided in subsection (2), (3), or (4) of section 46-229.03, as applicable.

(6) Following a hearing conducted in accordance with subsection (5) of this section and subsection (1) of section 46-229.04, the Chief Water Officer shall render a decision by order. A copy of the order shall be provided to the owner or owners of the appropriation and to any other person who is an owner of the land under the appropriation. The copy of the order shall be posted on the department's website and shall be served or published, as applicable, in the same manner that notices are to be given in accordance with subsection (2), (3), or (4) of section 46-229.03, as applicable, except that if publication is required, it shall be sufficient for the Chief Water Officer to publish notice that an order has been issued. Any such published notice shall identify the land or lands involved and shall provide the address and telephone number that may be used to obtain a copy of the order.

(7) A water appropriation that has not been perfected pursuant to the terms of the permit may be canceled by the Chief Water Officer without complying with sections 46-229.01 to 46-229.04 if the owner of such appropriation fails to comply with any of the conditions of approval in the permit, except that this subsection does not apply to appropriations to which subsection (2) of section 46-237 applies.

Notes of Decisions

Cited in 14 cases, 1951–2015 · leading case: Dep't of Nat. Resources v. Bose, 674 N.W.2d 788 (Neb. 2004).

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Dep't of Nat. Resources v. Bose, 674 N.W.2d 788 (Neb. 2004). · cites it 2× “§ 84-913 (Reissue 1999); (2) the Department’s notice of hearing did not contain “a department telephone number which any person may call for information regarding sufficient cause for nonuse,” as provided by § 46-229.02; (3) the Department’s finding that the land subject to…”

In Re Water Appropriation, 280 N.W.2d 75 (Neb. 1979). · cites it 6× “This is an appeal from an order of the Department of Water Resources, made under the provisions of section 46-229.02 et seq., R. R. S. 1943, canceling and annulling a water appropriation identified as docket No.”

Hitchcock & Red Willow Irrigation Dist. v. Lower Platte North Nat. Resources Dist., 410 N.W.2d 101 (Neb. 1987). · cites it 2× “Neb. Rev. Stat. §§ 46-229.02 to 46-229.04 (Reissue 1984); In re Water Appropriation Nos.”

Spear T Ranch, Inc. v. Nebraska Dep't of Nat. Resources, 699 N.W.2d 379 (Neb. 2005). · cites it 2× “The law existing at the time, Neb. Rev. Stat. § 46-229.02 (Supp. 1949), expressly authorized the Department of Roads and Irrigation to cancel a water right that had not been used for some beneficial purpose for more than 3 years.”

Wilkins v. State Dep't of Water Resources, 313 N.W.2d 271 (Neb. 1981). · cites it 2× “The landowners have appealed the action of the Department to this court and maintain that the Department erred in failing to recognize that the water appropriations involved herein were vested prior to April 4, 1895, and therefore the statutory forfeiture proceedings provided…”

Northport Irrigation Dist. v. Jess, 337 N.W.2d 733 (Neb. 1983). · cites it 2× “Neb. Rev. Stat. § 46-229 (Reissue 1978). Nonuse for over 3 years terminates the right by statutory cancellation proceedings.”

North Loup River Pub. Power & Irrigation Dist. v. Loup River Pub. Power Dist., 74 N.W.2d 863 (Neb. 1956). · cites it 4× “It is urged by the power district that the irrigation district is limited to a period of 3 years in applying appropriated waters to a beneficial use on the lands described in the application which received departmental approval.”

Blue Creek Irrigation Dist. v. Jess, 440 N.W.2d 466 (Neb. 1989). · cites it 2× “for more than three consecutive years, the department shall appoint a place and time of hearing, shall serve notice upon the owners of such water appropriation or such ditch, canal, or other diverting works to show cause by such time and at such place why the water appropriation…”

In re Appropriation A-7603, 291 Neb. 678 (Neb. 2015). · cites it 7× “Based upon a verified field investigation report, a Notice of Preliminary Determination was issued on July 26, 2013, in accordance with Neb. Rev. Stat. §§ 46-229.02 and 46-229.03 [(Reissue 2010)] stating that it appeared that all of the water appropriation for irrigation of…”

In Re Birdwood Irr. Dist., Water Div. No. 1-A, 46 N.W.2d 884 (Neb. 1951). “Such a construction of the powers of the department would defeat a major purpose of the department and render the nonuser and abandonment provisions of the irrigation law nugatory.”

Beerline Canal Co. v. Dep't of Water Resources, 482 N.W.2d 11 (Neb. 1992). · cites it 2× “See Neb. Rev. Stat. § 46-229.02 (Reissue 1988).”

State v. Nielsen, 79 N.W.2d 721 (Neb. 1956). · cites it 2× “” Section 46-229.02, R. R. S. 1943, provides: “If it shall appear that any water appropriation has not been used for some beneficial or useful purpose, or having been so used at one time has ceased to be used for such purpose for more than three years, the department shall…”

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— Neb. Rev. Stat. § 46-229.02(5) — 1 case

In re Appropriation A-7603, 291 Neb. 678 (Neb. 2015). “Based upon a verified field investigation report, a Notice of Preliminary Determination was issued on July 26, 2013, in accordance with Neb. Rev. Stat. §§ 46-229.02 and 46-229.03 [(Reissue 2010)] stating that it appeared that all of the water appropriation for irrigation of…”

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