Nebraska Revised Statutes

Neb. Rev. Stat. § 46-235 (2026)

Application for water; approval; date of priority; conditional or partial approval; hearing; Chief Water Officer; powers and duties

✓ current as of July 2026

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(1) For applications other than those to appropriate public waters for induced ground water recharge, if there is unappropriated water in the source of supply named in the application, if such application and appropriation when perfected are not otherwise detrimental to the public welfare, and if denial of the application is not demanded by the public interest, the Chief Water Officer shall approve the application and shall make a record and return the application to the applicant, who shall on receipt thereof be authorized to proceed with the work and to take such measures as may be necessary to perfect such application into an appropriation. The priority of such application and appropriation when perfected shall date from the filing of the application with the Chief Water Officer, and the date of filing shall be regarded as the priority number thereof. The Chief Water Officer may, upon examination of such application, approve it for a shorter period of time for perfecting the proposed appropriation or for a smaller amount of water or of land than applied for. The Chief Water Officer may also impose such other reasonable conditions as the Chief Water Officer deems appropriate to protect the public interest. An applicant aggrieved by the action of the Chief Water Officer shall, upon proper showing, be granted a hearing before the Chief Water Officer, which hearing shall be conducted in accordance with the rules of procedure adopted by the Chief Water Officer, and a full and complete record shall be kept of all such proceedings. When a complete record of the case has been made up, the Chief Water Officer shall render an opinion of facts and of law based upon the evidence before the Chief Water Officer.

(2)(a) An application for an induced ground water recharge appropriation for public water supplier wells constructed and placed in service before September 9, 1993, shall be approved by the Chief Water Officer if he or she finds that:

(i) The appropriation is necessary to maintain the well or wells for the use or uses for which the appropriation has been requested;

(ii) The rate and timing of the flow is the amount reasonably necessary to maintain the well or wells for the uses for which the appropriation has been requested; and

(iii) The application is in the public interest and is not detrimental to the public welfare. There shall be a rebuttable presumption that wells which are the subject of an application pursuant to subdivision (2)(a) of this section are in the public interest and are not detrimental to the public welfare.

(b) The Chief Water Officer may approve the application for a well or wells constructed before September 9, 1993, but may specifically deny the applicant the right to request regulation of junior appropriators if the Chief Water Officer, at the time of approval, finds that the well or wells, at the time of their construction, were not located, designed, or constructed so as to take reasonable advantage of aquifer conditions in the area to minimize the frequency and amount of the demand for flows for induced ground water recharge. Thereafter a public water supplier holding an approved application which has been denied the right to request regulation of junior appropriators may petition the Chief Water Officer for a hearing to present evidence showing the Chief Water Officer that the well or wells have been modified, relocated, or reconstructed to take reasonable advantage of the aquifer conditions in the area. If the Chief Water Officer determines that the well or wells have been so modified, relocated, or reconstructed, the Chief Water Officer shall cause to be modified the approval of the application to allow for the regulation of junior appropriators, subject to the restrictions or conditions applicable to public water suppliers.

(c) An application for an induced ground water recharge appropriation for public water supplier wells constructed and placed in service before September 9, 1993, shall not be subject to the requirements of sections 46-288 and 46-289.

(3) An application for an induced ground water recharge appropriation for public water supplier wells constructed or to be constructed on or after September 9, 1993, shall be approved by the Chief Water Officer if he or she makes the findings required by subdivision (2)(a) of this section and further finds that:

(a) There is unappropriated water available for the appropriation; and

(b) The well or wells involved have been or will be located and constructed to take reasonable advantage of aquifer conditions in the area to minimize the frequency and amount of the demand for flows for induced ground water recharge.

(4)(a) The Chief Water Officer may approve the application filed under subsection (2) or (3) of this section for a smaller amount of water than requested by the applicant. The Chief Water Officer may also impose reasonable conditions on the manner and timing of the appropriation which the Chief Water Officer deems necessary to protect the public interest. The Chief Water Officer may grant an appropriation for specific months of the year if so demanded by the public interest. If the Chief Water Officer approves the application, he or she shall issue a written order, which written order shall include the findings required by this section, the amount of the appropriation, and any conditions or limitations imposed under this section.

(b) In determining whether an application for an appropriation for induced ground water recharge is in the public interest, the Chief Water Officer's considerations shall include, but not be limited to, the possible adverse effects on existing surface water or ground water users and the economic, social, and environmental value of such uses, including, but not limited to, irrigation, recreation, fish and wildlife, public water supply, induced ground water recharge for public water supply systems, and water quality maintenance.

(c) The stream segment and the determination of a reasonable and necessary amount of water required for induced ground water recharge purposes throughout the reach shall be defined specifically by the Chief Water Officer in the order issued under this section.

Notes of Decisions

Cited in 15 cases, 1956–2013 · leading case: City of Lincoln v. Cent. Platte Nat. Resources Dist., 638 N.W.2d 839 (Neb. 2002).

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City of Lincoln v. Cent. Platte Nat. Resources Dist., 638 N.W.2d 839 (Neb. 2002). · cites it 2× “The Department is expressly permitted to take such action ( Neb. Rev. Stat. § 46-235 (4)). In this matter the City has pending a request to amend its application to reduce the quantity of flow specified in its application.”

Hitchcock & Red Willow Irrigation Dist. v. Lower Platte North Nat. Resources Dist., 410 N.W.2d 101 (Neb. 1987). · cites it 6× “” Neb. Rev. Stat. § 46-235 (Reissue 1984) provides in part that “[i]f there is unappropriated water in the source of supply named in the application, if such application.”

Metro. Utils. Dist. v. Twin Platte Nat. Resources Dist., 550 N.W.2d 907 (Neb. 1996). · cites it 2× “*450 Neb. Rev. Stat. § 46-235 (4)(b) (Reissue 1993) provides that the director must take into consideration certain factors in determining whether an application for an appropriation for induced ground water recharge is in the public interest; it does not state that the public…”

Upper Big Blue Nat. Resources Dist. v. City of Fremont, 495 N.W.2d 23 (Neb. 1993). · cites it 3× “Whether Upper Big Blue’s applications and appropriations, when perfected, are not otherwise detrimental to the public welfare ( Neb. Rev. Stat. § 46-235 (Reissue 1988)).”

Little Blue Nat. Resources Dist. v. Lower Platte North Nat. Resources Dist., 317 N.W.2d 726 (Neb. 1982). · cites it 3× “Stat. §§ 46-204 , 46-206, 46-234, and 46-235 (Supp.”

Basin Elec. Power Coop. v. Little Blue Nat. Resources Dist., 363 N.W.2d 500 (Neb. 1985). · cites it 3× “2d at 734 : We believe that, upon remand, further hearings should be held by the director and relevant evidence should be adduced relating particularly to those factors set forth in § 46-235 as now amended, as well as the project’s effect upon the endangered species.”

Cent. Platte Nat. Resources Dist. v. City of Fremont, 549 N.W.2d 112 (Neb. 1996). · cites it 7× “The district first argues that the Nebraska Constitution and Neb. Rev. Stat. § 46-235 (Reissue 1993) “plainly require, as a first step in the analysis of an application, the determination of whether there is unappropriated waters.”

Custer Pub. Power Dist. v. Loup River Pub. Power Dist., 75 N.W.2d 619 (Neb. 1956). · cites it 2× “We find nothing in the act that can be construed to imply a power in the department to condition its approval subject to limitations and conditions running prospectively for the life of the district.”

In re Application A-18503, 286 Neb. 611 (Neb. 2013). “20 But under § 46-235, the Department must minimally determine that there is unappropriated water in a stream before approv- ing a new application to appropriate water.”

Catherland Reclamation Dist. v. Lower Platte North Nat. Resources Dist., 433 N.W.2d 161 (Neb. 1988). “§ 46-235. After an application is approved, § 46-237 requires that the applicant file a map or plat with the department detailing the proposed irrigation project.”

North Loup River Pub. Power & Irrigation Dist. v. Loup River Pub. Power Dist., 74 N.W.2d 863 (Neb. 1956). · cites it 2× “It will be noted that under the foregoing section of the statute the department, upon examination of the application, may endorse its approval “for a less period of time for perfecting the proposed appropriation, or for a less amount of water, or for a less amount of land than…”

Ainsworth Irrigation Dist. v. Bejot, 102 N.W.2d 416 (Neb. 1960). · cites it 2× “The order approving plaintiff’s application and certifying approval thereof by the department, as provided in section 46-235,- R. R. S. 1943, was made subject to certain limitations and conditions.”

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— Neb. Rev. Stat. § 46-235(1) — 2 cases

Cent. Platte Nat. Resources Dist. v. City of Fremont, 549 N.W.2d 112 (Neb. 1996). “The district first argues that the Nebraska Constitution and Neb. Rev. Stat. § 46-235 (Reissue 1993) “plainly require, as a first step in the analysis of an application, the determination of whether there is unappropriated waters.”

Cent. Platte Nat. Res. Dist. v. Fremont, 549 N.W.2d 112 (Neb. 1996).

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