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AGO Opinion 81122

Amendment of Municipal Water Permit
Opinion 81122

SUBJECT:
Amendment of Municipal Water Permit

REQUESTED BY:

J. Michael Jess, Director,
Department of Water Resources

OPINION BY:

Paul L. Douglas, Attorney General,
G. Roderic Anderson, Assistant Attorney General

QUESTION:
May a municipality amend its permit to withdraw, transport and use ground water from wells by increasing the maximum amount permitted pursuant to Neb. Rev. Stat. §46-642 (Reissue 1978)?

CONCLUSION:
No, a new application must be made and the director must comply with all requirements of Neb. Rev. Stat. §546-638, et seq. (Supp. 1980).

Municipal water supply permits are authorized pursuant to Neb. Rev.Stat. §546-638 et seq. (Supp.1980). The sections provide for written application to the Director of the Department of Water Resources specifying the amount of water for which a permit is desired, and map showing location of proposed wells. (Neb. Rev.Stat. §46-639 (Reissue 1978).) A fee of $50 for the first five million gallons per day and an additional $20 for each additional increment of five million gallons per day requested is levied pursuant to the section. A hearing must be held on each application after notice as required by Neb.Rev. Stat. §46-640 (Reissue 1978). Adverse parties may file objections and be heard pursuant to Neb. Rev. Stat. §46-641 (Reissue 1978). The director may grant the application after the hearing if he finds that: (1) a withdrawal or transportation is reasonable; (2) it is not contrary to the conservation and beneficial use of the ground water; (3) it is not otherwise detrimental to the public welfare. (Neb.Rev. Stat. §46-642 (Reissue 1978).) The permit may be granted "in the amount applied for or in a lesser amount .... " pursuant to Neb.Rev. Stat. §46-642 (Reissue 1978). A permit so granted shall carry the priority dated the date the application was filed. The director is authorized to modify or revoke the permit only if the holder has not used water for beneficial use for three years pursuant to Neb. Rev. Stat. §46-644 (Reissue 1978).

The director's discretion in the amount of water to be authorized under the permit is limited by the amount of the request in the application. Any grant must first have received a public hearing with notice, testimony, opportunity for adverse testimony, and specific finding of the reasonableness, benefit and lack of detrimental effect. No mention is made of modification except for failure of beneficial use.

It is our conclusion that no permit for municipal water supply may be amended or modified so as to be increased in the amount of water to be withdrawn, transported or used. To permit this would circumvent the specific statutory provisions for fees, hearings, testimony and findings. Modification by increase is specifically not included in the statute although modification by decrease in the amount of water to be withdrawn is provided. Retention of the priority date for the increased withdrawals would be inconsistent with the established priority system.

The only means provided by statute in which a municipality may obtain authority to withdraw, transport and use, an amount of water in addition to that provided by prior permits, is to apply in writing for a new permit in accordance with Neb. Rev. Stat. §46-639 and submit to the requirements of the subsequent sections.

Very truly yours,

PAUL L. DOUGLAS
Attorney General

G. Roderic Anderson
Assistant Attorney General