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Show 340 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS There are two sections in the water rights statute relating to the return of unused water to the stream, which bear directly upon the question of diverting water out of the watershed in which it originates. One section, originally a part of the 1889 law, provides that appropriated water shall not be turned into any stream other than that from which diverted unless such stream exceeds in width 100 feet, in which event not more than 75 percent of the regular flow shall be taken.53 Another, enacted in 1919, directs that unused water from an irrigation ditch be returned with as little waste as possible to the stream from which taken, or to the Missouri River.54 The Nebraska Supreme Court construed these two sections together as necessarily limiting location of canals "to within the watershed of the stream that furnishes the source of supply." It was held that under the established policy of the State, water for irrigation and power purposes taken from the Platte River or its tributaries may not be lawfully diverted over and beyond the southern watershed of the stream and applied to lands situated outside of the river basin.55 The Nebraska Department of Water Resources sub- sequently approved an application to appropriate water from the Snake River, a tributary of Niobrara River, and to transport it out of the Snake watershed and into that of the Niobrara for irrigation purposes. In affirming this order, the supreme court distinguished the facts in the earlier case, where there was an admitted attempt to transport water to lands wholly outside the Platte River valley basin, and here, where to all intents and purposes the Snake and Niobrara comprised one watershed and basin. All unused waters would be returned to the Niobrara, where they would have naturally flowed, and thence to the Missouri River, never out of the overall watershed. Under the circumstances of this case, the statutes were not in conflict.56 An 1895 statute included a provision the extant version of which requires an application for a permit to appropriate water, if for irrigation purposes, to include "a description of the land to be irrigated thereby and the amount thereof***."57 In 1904, the Nebraska Supreme Court declared that by enacting this statute the State adopted a policy "by which the right to use the water shall not be granted separate from the land to which it is to be applied, "Nebr. Rev. Stat. §46-206 (1974). "Id. §46-265, discussed in Ainsworth In. Dist. v. Bejot, 170 Nebr. 257, 102 N.W. (2d) 416,428-429(1960). ssOsterman v. Central Nebr. Pub. Power & In. Dist., 131 Nebr. 356, 369-370, 268 N.W. 334 (1936). 56Ainsworth In. Dist. v. Befot, 170 Nebr. 257, 102 N.W. (2d) 416 (1960). In addition, the evidence showed that in various stretches the Snake River exceeded 100 feet in width and that less than 50 percent of the flow would be taken. The earlier Osterman case was also distinguished in a 1966 case involving ground water, discussed in note 137 infra. "Nebr. Laws 1895, ch. 69, Rev. Stat. §46-233 (1974). |
