46-739 Management area; controls authorized; procedure. - Nebraska Statutes

46-739. Management area;controls authorized; procedure.(1) A districtin which a management area has been designated shall by order adopt one ormore of the following controls for the management area:(a) It may allocate the amount of ground water that may bewithdrawn by ground water users;(b) It may adopt a system of rotation for use of ground water;(c) It may adopt well-spacing requirements more restrictivethan those found in sections 46-609 and 46-651;(d) It may require the installation of devices for measuringground water withdrawals from water wells;(e) It may adopt a system which requires reduction of irrigatedacres pursuant to subsection (2) of section 46-740;(f) It may limit or prevent the expansion of irrigated acresor otherwise limit or prevent increases in the consumptive use of ground waterwithdrawals from water wells used for irrigation or other beneficial purposes;(g) It may require the use of best management practices;(h) It may require the analysis of water or deep soils forfertilizer and chemical content;(i) It may impose mandatory educational requirements designedto protect water quality or to stabilize or reduce the incidence of groundwater depletion, conflicts between ground water users and surface water appropriators,disputes over interstate compacts or decrees, or difficulties fulfilling theprovisions of other formal state contracts or agreements;(j) It may require water quality monitoring and reportingof results to the district for all water wells within all or part of the managementarea;(k) It may require district approval of (i) transfers ofground water off the land where the water is withdrawn, (ii)transfers of rights to use ground water that result from district allocationsimposed pursuant to subdivision (1)(a) of this section or from other restrictionson use that are imposed by the district in accordance with this section, (iii) transfers of certified water usesor certified irrigated acres between landowners or other persons, or (iv)transfers of certified water uses or certified irrigated acres between parcelsor tracts under the control of a common landowner or other person.Such approval may be required whether the transfer is within the managementarea, from inside to outside the management area, or from outside to insidethe management area, except that transfers for which permits have been obtainedfrom the Department of Natural Resources prior to July 16, 2004, or pursuantto the Municipal and Rural Domestic Ground Water Transfers Permit Act shallnot be subject to district approval pursuant to this subdivision. If the districtadopts rules and regulations pursuant to this subdivision, such regulationsshall require that the district deny or condition the approval of any suchtransfer when and to the extent such action is necessary to (A) ensure theconsistency of the transfer with the purpose or purposes for which the managementarea was designated, (B) prevent adverse effects on other ground water usersor on surface water appropriators, (C) prevent adverse effects on the state'sability to comply with an interstate compact or decree or to fulfill the provisionsof any other formal state contract or agreement, and (D) otherwise protectthe public interest and prevent detriment to the public welfare. Approval of any transfer of certifiedwater uses or certified irrigated acres under subdivision (1)(k)(iii) or (iv)of this section shall further be subject to the district having complied withthe requirements of section 46-739.01;(l) It may require, when conditions so permit, that new orreplacement water wells to be used for domestic or other purposes shall beconstructed to such a depth that they are less likely to be affected by seasonalwater level declines caused by other water wells in the same area;(m) It may close all or a portion of the management areato the issuance of additional permits or may condition the issuance of additionalpermits on compliance with other rules and regulations adopted and promulgatedby the district to achieve the purpose or purposes for which the managementarea was designated; and(n) It may adopt and promulgate such other reasonable rulesand regulations as are necessary to carry out the purpose for which a managementarea was designated.(2) In adopting, amending, or repealing any control authorizedby subsection (1) of this section or sections 46-740 and 46-741, the district'sconsiderations shall include, but not be limited to, whether it reasonablyappears that such action will mitigate or eliminate the condition which ledto designation of the management area or will improve the administration ofthe area.(3) Upon request by the district or when any of the controlsbeing proposed are for the purpose of integrated management of hydrologicallyconnected ground water and surface water, the Director of Natural Resourcesshall review and comment on the adoption, amendment, or repeal of any authorizedcontrol in a management area. The director may hold a public hearing to considertestimony regarding the control prior to commenting on the adoption, amendment,or repeal of the control. The director shall consult with the district andfix a time, place, and date for such hearing. In reviewing and commentingon an authorized control in a management area, the director's considerationsshall include, but not be limited to, those enumerated in subsection (2) ofthis section.(4) If because of varying ground water uses, varying surfacewater uses, different irrigation distribution systems, or varying climatic,hydrologic, geologic, or soil conditions existing within a management areathe uniform application throughout such area of one or more controls wouldfail to carry out the intent of the Nebraska Ground Water Management and ProtectionAct in a reasonably effective and equitable manner, the controls adopted bythe district pursuant to this section may contain different provisions fordifferent categories of ground water use or portions of the management areawhich differ from each other because of varying climatic, hydrologic, geologic,or soil conditions. Any differences in such provisions shall recognize andbe directed toward such varying ground water uses or varying conditions. Exceptas otherwise provided in this section, if the district adopts different controlsfor different categories of ground water use, those controls shall be consistentwith section 46-613 and shall, for each such category, be uniform for allportions of the area which have substantially similar climatic, hydrologic,geologic, and soil conditions.(5) The district may establish different water allocationsfor different irrigation distribution systems.(6)(a) The district may establish different provisions fordifferent hydrologic relationships between ground water and surface water.(b) For management areas a purpose of which is the integratedmanagement of hydrologically connected ground water and surface water, thedistrict may establish different provisions for water wells either permittedor constructed before the designation of a management area for integratedmanagement of hydrologically connected ground water and surface water andfor water wells either permitted or constructed on or after the designationdate or any other later date or dates established by the district. Permitsfor construction of new wells not completed by the date of the determinationof fully appropriated shall be subject to any conditions imposed by the applicablenatural resources district.(c) For a management area in a river basin or part of a riverbasin that is or was the subject of litigation over an interstate water compactor decree in which the State of Nebraska is a named defendant, the districtmay establish different provisions for restriction of water wells constructedafter January 1, 2001, if such litigation was commenced before or on May 22,2001. If such litigation is commenced after May 22, 2001, the district mayestablish different provisions for restriction of water wells constructedafter the date on which such litigation is commenced in federal court. Anappeal from a decision of the district under this subdivision shall be inaccordance with the hearing procedures established in the Nebraska GroundWater Management and Protection Act.(d) Except as otherwise authorized by law, the district shallmake a replacement water well as defined in section 46-602, or as furtherdefined in district rules and regulations, subject to the same provisionsas the water well it replaces.(7) If the district has included controls delineated in subdivision(1)(m) of this section in its management plan, but has not implemented suchcontrols within two years after the initial public hearing on the controls,the district shall hold a public hearing, as provided in section 46-712, regardingthe controls before implementing them.(8) In addition to the controls listed in subsection (1)of this section, a district in which a management area has been designatedmay also adopt and implement one or more of the following measures if it determinesthat any such measures would help the district and water users achieve thegoals and objectives of the management area: (a) It may sponsor nonmandatoryeducational programs; and (b) it may establish and implement financial orother incentive programs. As a condition for participation in an incentiveprogram, the district may require water users or landowners to enter intoand perform such agreements or covenants concerning the use of land or wateras are necessary to produce the benefits for which the incentive program isestablished and shall furthercondition participation upon satisfaction of the requirements of section 46-739.01. SourceLaws 1975, LB 577, § 11; Laws 1978, LB 217, § 2; Laws 1979, LB 26, § 4; Laws 1980, LB 643, § 13; Laws 1981, LB 146, § 9; Laws 1982, LB 375, § 19; Laws 1983, LB 23, § 7; Laws 1983, LB 506, § 1; Laws 1984, LB 1071, § 8; Laws 1986, LB 894, § 25; Laws 1993, LB 131, § 30; R.S.1943, (1993), § 46-666; Laws 1996, LB 108, § 31; Laws 1997, LB 877, § 6; Laws 2000, LB 900, § 196; Laws 2001, LB 135, § 2; Laws 2001, LB 667, § 9; R.S.Supp.,2002, § 46-656.25; Laws 2004, LB 962, § 79; Laws 2006, LB 1226, § 27; Laws 2009, LB477, § 6. Cross ReferencesMunicipal and Rural Domestic Ground Water Transfers Permit Act, see section 46-650.