## Facts

- The Central Platte Natural Resources District (CPNRD) filed six applications with the Nebraska Department of Water Resources (NDWR) seeking permits to appropriate Platte River water for instream flows in Nebraska to maintain habitat and food sources for threatened and endangered bird species.
- The State of Wyoming owned land along the Platte River in Nebraska for similar habitat purposes and objected to CPNRD’s applications, asserting the requests exceeded the amount of water legally available.
- A central dispute was how NDWR should determine whether “unappropriated water” existed for new instream-flow appropriations in a river system already subject to multiple surface-water rights.
- CPNRD presented evidence using approximately 30 years of recorded historic streamflow data to estimate available flows for instream appropriation.
- Wyoming presented evidence urging a “full-rights” approach that would treat existing appropriations as if they were exercised to their maximum paper entitlement and would also reduce flows based on projected future groundwater depletions.
- At the time NDWR ruled, two potentially senior applications were pending. NDWR concluded those pending matters would not deplete the flows relevant to the requested instream appropriations.
- After administrative hearings, the NDWR Director issued an order that granted some of CPND’s applications (including partial grants on at least one application), and denied or dismissed others.
- Wyoming appealed. The Nebraska Court of Appeals largely affirmed the Director’s order.
- The Nebraska Supreme Court granted further review. The record also reflected later developments affecting the pending senior matters: one pending application was later denied, and testimony indicated that senior rights held by CPNRD would be waived to satisfy the instream flows.

## Issues

1. Whether NDWR could use the historic-flow method to determine “unappropriated water” for instream-flow applications, rather than subtracting hypothetical maximum diversions under all existing appropriations.
2. Whether, in determining unappropriated water using historic flows, NDWR was required to account for senior demands not reflected in historic flow records, including (a) pending senior applications and (b) approved-but-unconstructed senior appropriations.
3. How Nebraska’s beneficial-use limitation on appropriative rights affects the meaning of water “subject to an existing appropriation right” when evaluating instream-flow applications.
4. What legal effect the Game and Parks Commission’s threatened-and-endangered-species “nonjeopardy opinion” has in NDWR’s permitting decision.

## Decision

- The Nebraska Supreme Court held that using the historic-flow method is legally permissible in instream-flow proceedings as a way to measure the beneficial-use limit of existing appropriations and to identify water that is not “subject to” existing rights.
- The court rejected the claim that NDWR must automatically apply a full-rights model that assumes all paper rights are exercised at their maximum legal extent regardless of actual beneficial use.
- The court held, however, that NDWR must account for certain senior claims whose effects may not appear in historic flow records—specifically pending senior applications and approved-but-unconstructed senior appropriations.
- The court addressed the statutory nonjeopardy opinion requirement, explaining that the opinion is significant evidence NDWR must consider; it is not an automatic veto, but NDWR and the applicant may not disregard the Commission’s conclusion when supported by the evidence.
- Disposition: the court affirmed in part and reversed in part, and remanded to NDWR for further proceedings consistent with the opinion.

## Legal Principles

- For instream-flow applications, “unappropriated water” is water available for appropriation because it is not subject to an existing appropriation right.
- An appropriative right is limited by beneficial use; the right extends only as far as beneficial use allows, not necessarily to the full paper entitlement.
- The historic-flow method may be used to measure the beneficial-use limit of existing appropriations and thus to estimate the quantity of unappropriated water available for instream flows.
- Even when historic flows are used, the Director must account for senior demands that may not be reflected in the historic record, including pending senior applications and approved-but-unconstructed senior appropriations.
- On review of NDWR decisions, appellate courts defer to the agency’s supported factual findings (competent, relevant evidence; not arbitrary or capricious), but statutory interpretation remains a question of law for the court.
- A Game and Parks Commission nonjeopardy opinion does not give that Commission absolute control over NDWR’s decision, but NDWR must consider and cannot disregard the opinion when the evidentiary record supports it.

## Conclusion

Central Platte Natural Resources District v. Wyoming held that Nebraska may evaluate unappropriated water for Platte River instream-flow permits using historic streamflow records to reflect the beneficial-use limits of existing appropriations, rather than assuming every paper right will be fully exercised. At the same time, the court required NDWR to consider senior claims that historic records may not capture—pending senior applications and approved-but-unconstructed senior appropriations—and it clarified that threatened-and-endangered-species nonjeopardy opinions must be meaningfully considered. The case was affirmed in part, reversed in part, and remanded for additional administrative proceedings.


Central Platte Natural Resources District v. Wyoming, 513 N.W.2d 847 (1994)