If

- -.

Thirty-Fifth Biennial Report

of the

DEPARTMENT OF WATER RESOURCES

TO

HONORABLE FRANK B. MORRISON

Governor of The State of Nebraska

LINCOLN, NEBRASKA

1963-1964

-

.1

DEPARTMENT OF WATER RESOURCES

8tatl' of Nl'hraska LINCOLN 68509

November 30, 1964

The Honorable Frank B. Morrison Governor of Nebraska Lincoln, Nebraska

Dear Governor Morrison:

I have the honor to transmit to you herewith the Thirty-Fifth Biennial Report of the Department of Water Resources

This report summarizes the activities of this de-partment for the two-year period which ended on September 30, 1964. It contains a review of the water supply and some of the more important admin-istrative problems encountered during the biennium. It also contains a complete list of water appro-priations, a list of the public power and irriga-tion districts, and a list of reclamation districts as they were of record on September 30, 1964.

Respectfully submitted,

;;::::1 p::;~-CES DanS. Jones, Jr., Director

Irrigation, Water Power and Drain•ge Registration of Wells

Thirty-Fifth Biennial Report

of the

DEPARTMENT OF WATER RESOURCES

TO

HONORABLE FRANK B. MORRISON

Governor of The State of Nebraska

LINCOLN, NEBRASKA

1963-1964

EXECUTIVES AND EMPLOYEES

OF THE

DEPARTMENT OF WATER RESOURCES

Dan S. Jones, Jr., Director of Water Resources ---------------- Lincoln Marion E. Ball, Assistant Director -------------------------- Lincoln F. H. Klietsch, Division Engineer ------------------------ Bridgeport Edwin S. Kimmel, Hydraulic Engineer -------------------- Bridgeport Mary L. Kobza, Special Assistant ---------------------------- Lincoln Robert F. Bishop, Division Engineer-Division No. 2 -------------- Ord Leo F. Zabel, Assistant Division Engineer-Division No. 1 ____ Cambridge Stan M. Christensen, Senior Hydrographer-Office ---------- Bridgeport David B. Ender, Senior Hydrographer ------------------ North Platte John· H. Hintz, Associate Hydrographer -------------------- Hershey David J. Neely, Associate Hydrographer ------------------ Bridgeport John G. Lathrop, Junior Hydrographer ---------------------- Chadron Norman N. McConnell, Junior Hydrographer ------------ Bridgeport Lloyd E. Powell, Jr., Junior Hydrographer ------------------ Bridgeport James E. Vassos, Junior Hydrographer ---------------------- Bridgeport Marvin E. \Vitherwax, Junior Hydrographer ---------------------- Ord Janis Stakens, Draftsman ------------------------------------ Lincoln William L. Booker, Engineer Aide 2 -------------------------- Lincoln Mollie Bauer, Bookkeeper ------------------------------------ Lincoln Mary C. Kildaw, Steno Clerk III ------------------------------ Lincoln Sharon Lou Egbers, Steno Clerk II -------------------------- Lincoln Phyllis Diane Wragge, Steno Clerk I ------------------------ Lincoln Dorothy Brening, Typist Clerk II ------------------------ Bridgeport June Nelson, Typist Clerk II ------------------------------ Lincoln Roma Jean Martin, Typist Clerk -------------------------- Bridgeport Anna E. Griffin, Caretaker ----------------- _____________ Bridgeport

WATER COMMISSIONERS

Henry F. Brandt, Republican River Basin ------------------ Cambridge Gordon Leslie Downing, North Platte River Basin ------------ Bayard Phillip Flohr, Lodgepole Creek Basin ------------------------ Kimball Robert W. Hoover, North Platte River Basin ------------------ Ogallala Terrance L. Michalski, Loup River Basin ------------------------ Elyria Dean Neff, Loup River Basin -------------------------------- Ord Herschel A. Norris, North Platte River Basin ------------------ Brady Henry Pollmann, Jr., Republican River Basin ---------------- Culbertson Dorrance H. Schmidt, North Platte River Basin ------------ Bridgeport James A. Stevens, Loup River Basin ------------------------------ Ord

OTHERS EMPLOYED DURING BIENNIUM

Chris D. Christensen, Associate Hydrographer ______________ Bridgeport Marvin D. Stevens, Junior Hydrographer ------------------ Bridgeport Jack Gilmore, Engineer Aide ------------------------··------- Lincoln John Cicmanec, \Vater Commissioner ---------------------------- Ord Sandra Wedding, Steno Clerk II ---------------------------- Lincoln Thelma Hansen, Typist Clerk ------------------------------ Bridgeport

NEBRASKA POWER REVIEW BOARD

Members vVi'liam H. Norton, Chairman ------------------------------ Osceola Ed R. Crowley, Vice Chairman ---------------------------- Kearney Shddon A. Bernstein ---------------------------------------- Omaha Larry E. Donegan ------------------------------------------ Lincoln Th•>mas K. Eason ------------------------------------ North Bend Others Members During Biennium Clair A. Callan------------------------------------------------ Odell Sidney Hellman _____________________ --------------------- Kearney W

FOREWORD

The primary responsibilities of the Department of 'Water Resources are to administer the State water laws and to record the flows of the several streams of the State. The department also has certain responsibilities with respect to the creation and operation of public power districts and public power and irrigation districts. The organizing of irrigation districts and reclamation districts require the approval of the Department

The director of the department is an ex-officio member of the State Soil and \Vater Conservation Commission and the Nebraska \Vater Pollu-tion Control CounciL He also serves as Nebraska's alternate on the Missouri Basin Inter-Agency Committee, and he is compact commissioner for Ne-braska on the Big Blue River Compact Commission which is negotiating a compact between the State of Kansas and Nebraska.

WATER SUPPLY

Both the 1963 and 1964 water years were unusually dry, with 1964 being the drier, especially in the Panhandle area. During July and August of both years, when the need for irrigation was the greatest, the natural flow supplies were exceedingly short The total precipitation at the Scotts-bluff weather station during July, August and September was only 0.97 inch, or 25 per cent of normal for those three months. The mean annual calendar year precipitation at this station is 14.38 inches. Only 7.70 inches was re-corded in 1964, the lowest ever recorded at this station since it was estab-lished in 1891.

The run-off of the North Platte River above Pathfinder Dam was 688,-300 acre-feet during the 1963 water year, and it was 832,520 acre-feet during 1964, or 55 per cent and 65 per cent, respectively, of the 50-year average for the years 1904 to 1953. Annual flows were similarly deficient throughout the North Platte Basin; however, above normal rainfall in the Pathfinder-Guernsey section during April, May and June, 1964, produced inflows which increased storage under the Glendo storage permit to an all-time high of 159,700 acre-feet, about 6,000 acre-feet less than the maximum allowable under the North Platte supreme court decree. Sufficient storage water was available to supplement the deficient natural flow so that there was ade-quate water to produce good crops on lands supplied by reservoirs of the North Platte and Glendo projects.

A table showing the amounts of storage in the several reservoirs appears on page 7 of this report.

The discharge of the North Platte River below the Tri-State Dam was 124,800 acre-feet in 1963 and 131,650 acre-feet in 1964. The mean annual discharge for the period 1939 to 1953 was 280,300 acre-feet. The flow of the North Platte River at Lewellen, just above Lake C. W. McConaughy, was 802,400 acre-feet in 1963, and 717,000 acre-feet in 1964. The mean annual How at Lewellen for the period 1951-1960 was 856,100 acre-feet

As an indication of the shortage of water in the North Platte River during July and August of both years of this biennium, the total discharge

6 REPORT OF THE

at Lewellen for those months in 1963 was 26,610 acre-feet and in 1964 it was only 18,900 acre-feet, 19 per cent and 14 per cent of normal, respectively. Since the major portion of the water supply at Lewellen is contributed by drains running into the river, it is apparent that increases in unregulated diversions from these drains are greatly reducing the natural flow which has historically been available for senior appropriators.

The discharge of the South Platte River at North Platte was 120,700 acre-feet in 1963, and it was 104,200 acre-feet in 1964. The mean annual How for the period 1951-1960 was 159,000 acre-feet. The flow at North Platte is materially affected by diversions at Paxton into the canal of the Platte Valley Public Power and Irrigation District. Base flows at North Platte are largely intlow from drains and other return flows. The large deficiency at North Platte can probably be partly due to the great increase in unregulated pump diversions from the drains in recent years.

The discharge of the Platte River at Overton reflects the amount of water that is available for new uses downstream in Nebraska after all uses . have been made under existing projects. The 1963 and 1964 discharges at Overton were 720,800 acre-feet and 600,000 acre-feet respectively. The mean annual discharge for the 1951-1960 period was 700,300 acre-feet.

The moisture deficiency in the Niobrara River Basin is reflected in the subnormal flows recorded at the gaging station on the river above the Box Butte Reservoir. The 1963 and 1964 discharges were 20,990 acre-feet and 18,340 acre-feet respectively. The mean annual flow, based on the 1951-1960 period, is 22,700 acre-feet.

Precipitation in the Niobrara and White River Basins, and in the Hat Creek Basin, was similar to the subnormal amount recorded at Scottsbluff in 1964. Irrigation supplies were unusually deficient and serious conflicts flared up in the White River and Hat Creek Basins between those having irrigation rights and. ranchers desiring stream flow for ~tock water.

At the close of the biennial water year a suit brought in the District Court of Sioux County by certain riparian owners against upstream ap-propriators to require the maintenance of flows for livestock water was before the court for a decision, an unusual situation resulting from the prolonged drought in the area.

In the Republican River Basin, flows were sufficient in 1963 and 1964 to provide an adequate supply of water to all lands in project type develop-ments. However, junior appropriators without supplemental supplies were short of water during the critical periods of both years. The discharge of the Republican River at Orleans, inflow to the Harlan County Reservoir, was 209,300 acre-feet and 151,800 acre-feet in 1963 and 1964, respectively. The mean annual flow at this station for the 1951-1960 period is 248,300 acre-feet.

Water supplies in the Loup River Basin were more normal than else-where in the state. Discharges of the Loup River at the headgate of the Columbus Power Canal were 1,369,800 acre-feet in 1963 and 1,559,600 acre-feet in 1964. The mean annual flow for the 1951-1960 period was 1,574,900 acre-feet. The first diversions for storage in the new Sherman Reservoir were initiated in November, 1962, when water was diverted from the Middle Loup River into the Farwell Canal.

COMPARISON OF STORAGE IN RESERVOIRS

Name of Reservoir

Capacity top of lrrig. Pool Acre-feet

Pathfinder -------- a 1,016,000 1 Glendo ---------- b 165,370

Lake C. W.

Maximum Storage 1963 1964

Ac.Ft. %Avg. Ac.Ft.

868,010 101 687,420 139,740 234 159,670

%Avg.

80 268

Carry Over Storage Sept. 30, 1963 Sept. 30, 1964

Ac.Ft. %Avg. Ac.Ft. %Avg.

166,260 51 92,320 28 112,110 154 137,440 187

McConaughy ____ c 2,000,000 1,838,500 134 1,711,000 125 1,413,600 138 1,206,200 110 Oliver ------------ c 5,600 4,750 100 3,690 78 1,960 140 1,100 79 Bennett ---------- d 1,400 1,124 104 700 64 248 96 0 0 Whitney ---------- c 10,000 10,110 110 9,360 101 2,530 56 1,510 34 Crescent "Lake ____ d 7,000 2,0H) 38 1,900 36 830 31 290 11 Box Butte -------- e 31,075 24,310 93 22,110 84 7,450 78 2,900 30

2 Enders ---------- f 44,480 44,170 99 45,080 101 17,800 67 16,641 57 2 Harry Strunk Lake f 39,230 46,090 104 42,440 96 27,940 99 23,860 85 2 Swanson Lake ____ g 120,160 129,300 128 123,820 122 77,090 101 77,250 102 2 Harlan County ____ h 350,120 359,600 10€ 329,210 99 266,900 110 209,760 87 2 Hugh Butler Lake __ j 37,780 26,380 97 32,100 118 26,070 108 24,346 101

Sherman ________ k 69,200 65,404 97 69,200 103 35,275 77 56,173 123 1 Capacity to top of irrigation pool consists of 65,370 a.f. of dead and power head water and 100,000 storage for irrigation. 2 When maximum storage exceeds capacity of irrigation pool, it indicates some water is being held in flood control pool.

a 1940-1959 record used for averages b 1958-1964 record used for averages c 1941-1954 record used for averages d 1948-1954 record used for averages e 1947-1964 record used for averages f 1951-1964 record used for averages g 1954-1964 record used for averages h 1953-1964 record used for averages j 1962-1964 record used for averages k 1963-1964 record used for averages

8 REPORT OF THE

ADMINISTRATION OF WATER RIGHTS

The Department of Water Resources, to carry out its responsibility of administering the water laws, in addition to its staff at the main office in Lincoln, maintains a field force distributed throughout the state at various locations as required to accomplish orderly administration. The Department owns and occupies its own office building in Bridgeport, which is the headquarters for the Division Engineer of Water Division No. l. Here the waters of the North Platte, South Platte and Platte Rivers, and tributaries upstream from Columbus, the Niobrara and White Rivers and Hat Creek and their tributaries, are administered. The Division Engine-er supervises six engineering employees at Bridgeport, two at North Platte and one at Crawford, together with the clerical help that is required.

A Division Engineer for Water Division No. 2 is stationed at On! with an engineering aide to assist him. He is responsible for water admini-tration in the Loup River Basin. An Assistant Division Engineer for Water Division No. 1-B is stationed at Cambridge to administer water rights in the Republican River Basin.

In addition to the full-time field staff mentioned above, there are from ten to fifteen water commissioners employed during the May-Septem-ber period each year to carry out orders of the Division Engineers in regulating diversions from streams in accordance with water appropria-tions of record.

In the North Platte River Basin and the other basins under the Divi-sion Engineer, Division No. 1, both the 196.3 and 1964 seasons were excep-tionally dry, especially during July and August, when the closing of many appropriations was necessary. The following is a summary of the closings in 1964 which was comparable to those of the 1963 season.

On July 8, canals on the North Platte River and tributaries above Lewellen were closed down to February 12, 1894, and on the South Platte River down to December 28, 1894, and all canals on the Niobrara River west of Mirage Flats diversion were closed down to January 25, 1937.

On July 9 canals on Lodgepole Creek from Sidney east for ten miles were closed down to April 29, 1887.

On July 10 all canals on the North Platte and Platte Rivers from Lewellen east to Cozad were closed down to December 28, 1894, and all canals on Pumpkinseed Creek west of the Court House Rock Canal diver-sion were closed down to October 6, 1890.

On July 20 additional canals on the North Platte from Lewellen west were closed down to July 1, 1893.

On July 28 some canals junior to February 12, 1894 from Lewellen west were opened, except for those on Pumpkinseed Creek which were closed for the Court House Rock Canal.

On August 5 all appropriations down to July 1, 1893, were closed.

On August 14 canals senior to Fbruary 12, 1894, were opened.

On August 22 all closed canals on the South Platte River and on the North Platte River east of Lewellen and on the Platte River were opened.

DEPARTMENT OF WATER RESOURCES 9

On August 27 all closed canals west of Lewellen were opened except those on Pumpkinseed Creek closed for the Court House Rock Canal.

On September 14 all dosed canals on the Niobrara River were opened.

On September 21 all closed canals on Pumpkinseed Creek were opened.

On November 13 all closed canals on Bordeaux Creek were opened.

On November 24 all closed canals on Lodgepole Creek between Sidney and Sunol were finally opened.

Considerable friction developed in the Platte Valley around North Platte when the department, in HJ64, initiated the enforcement of Legisla-tive Bill 96 of the 1963 Legislature which requires that the use of water from drains be administered on a priority basis. Because of the junior status of drain water users, it was necessary to deny water to them about July 10, 1964. Upon their pleas of ignorance of the law and because of large investments they had made for the crop year, active enforcement was discontinued within a short time.

During 1963 the water in the Loup River Basin was administered on the basis of the 1932 appropriation for the Loup River Public Power District being 506 cubic feet per second. The appropriation was reduced in Decem-ber, 1962, from 3,500 cubic feet per second in an action, Hickman, et al. v. Loup River Public Power District, before the Department of Water Resources. The reduction in the amount of the appropriation greatly reduced the amount of power interference by junior irrigation appropriators, thus simplifying the administration. Relatively dry conditions prevailed in the basin in 1963, and irrigation diversions were almost double those made in 1962.

The storing of water was initiated in the newly completed Sherman Reservoir in the fall of 1962. There were 102,000 acre-feet of water diverted into the Farwell Canal for storage in the reservoir and 7,800 acre-feet of it were released for irrigation in 1963.

The pattern for the administration of water in the Loup Basin in 1964 returned to its pre-1963 status as the result of the State Supreme Court having reversed the department in the Hickman case, restoring the power appropriation to 3,500 second-feet. Moisture conditions in the basin in 1964 were much more favorable than in the western part of the state. Irrigation requirements were generally about normal. Irrigated acreage in the Farwell project increased to more than 10,000 acres. The matter of power interference by the North Loup River and Middle Loup Public Power and Irrigation Districts was handled under annual agreements with the power district and negotiations were underway for permanent settle-ments.

The water supply in the Hepublican River Basin was deficient in both 1963 and 1964. However, storage supplies in the five Federal reservoirs provided adequate water for the irrigated lands which they were con-structed to serve. The department experienced much difficulty in 1963 in regulating junior pump diversions from Medicine Creek and the Frenchman River. These junior appropriators had for several years been able to supplement natural flow with storage water from the Enders and Harry Strunk reservoirs while the storage supplies were surplus to the require-

10 HEPOHT OF THE

ments ot project lands in the Frenchman-Cambridge Division. This supple-mental water service was made available under annual contracts with the U. S. Bureau of Reclamation which provided that they would not be renewed when it was determined that all of the storage water was required for project purposes.

Many of the juniors insisted on taking natural flow out of priority, and it was only after filing complaints with the County Attorneys and their eventual action that the situation was brought under control. There was no storage water available for these juniors in 1964, but little difficulty was experienced in controlling them.

HYDROGRAPHY

The cooperative stream gaging program in which the Department of \-Vater Resources and the Surtace Water Branch of the U. S. Geological Survey have participated on a fifty-fifty basis for many years was con-tinued with each participant expending approximately $67,200 in 1963 and $75,000 in 1964. As of October 1, 1964, there were 90 gaging stations maintained on the principal streams of the state under this program.

In addition to the gaging stations which are operated under the above cooperative program, sixty-three other stations were operated by the U. S. Geological Survey in cooperation with other agencies of the Department of the Interior, the Corps of Engineers, Mid-State Reclamation District and the Department of Agriculture. Nebraska Department of Water Re-sources personnel make stream measurements and assist with computations of daily discharge records on many of the gaging stations whose construc-tion was financed by other agencies.

The eleven hydrographers and other personnel of this department, in addition to making the necessary measurements to support the State's share of the cooperative stream gaging program, are responsible for measuring the numerous canal and pump diversions from the natural streams and servicing the 118 recording gages on canals when they are in operation.

A hydrographic report, containing records of canal and pump diver-sions and some miscellaneous stream discharge records not otherwise published for water years 1955 to 1960 was received from the printer !at

LEGISLATION

The 1963 Legislature enacted several bills which directly or indirectly affect the Department of Water Resources and its activities. Most of these bills were the result of studies made by Legislative Council committees following the 1959 and 1961 sessions.

Probably the most far-reaching and important from an administrative standpoint is Legislative Bill 96 which made the waters of drainage ditches and man-made streams subject to appropriation in the same manner as

DEPARTMENT OF WATER RESOURCES 11

the waters of natural streams. For several years in the recent past the num-ber of persons diverting water from drains and the amounts diverted have greatly increased, reaching the point where the water historically available for senior appropriators downstream has been seriously reduced. LB 96 contains special provisions to permit the establishing of a priority date based on the date of first beneficial use of water from drains prior to the effective date of the act, and to recognize the right of appropirators to reuse water on the land for which it was appropriated. As noted in another section of this report, stiff resistance was encountered when administration of the bill was initiated in 1964. At the time of going to press with this report a hill to repeal LB 96 was being seriously considered by the 1965 Legislature.

Another bill which may have far-reaching effects is Legislative Bill 769 which is cited as the City, Village and Municipal Corporation Ground Water Permit Act. The bill authorized the Department of \Vater Resources to grant and administer permits to municipalities and municipal corpora-tions who wish to avail themselves of the provisions of the act, to locate, develop, transport and use ground water, and to utilize ground water re-servoirs for the storage of surplus water. It is significant that the act provides for setting a priority on ground water for each permit that is granted. Several of the larger cities have availed themselves of the provisions of the act.

Other water legislation enacted by the 1963 Session, ( 1) defined domestic use of ground water as "the use of such water for household, fire prevention and sanitary purposes", ( 2) defined ground water as "that water which occurs or moves, seeps, filters, or perculates through the ground under the surface of the land", ( 3) requires that a permit must be obtained from the Department for the pumping of water for irrigation from pits located within 50 feet of a bank of any natural stream.

The 1963 Legislature passed Legislative Bill 220 which created the Nebraska Power Review Board within the Department of Water Resources and made the director the secretary of the board. It repealed a 1961 statute which required that permits be obtained from the Department for the constmction of new electric transmission lines, and gave this duty to the new board. It also gave the board the power to require retail power sup-pliers to enter into service area agreements. The board has advisory powers in wholesale power rate disputes.

A separate staff was set up early in the biennium to handle the work of the Power Review Board. The First Annual Report of the Nebraska Power Review Board, which contains a complete report of the activities of the board for the year ending June 30, 1964, has been submitted and published.

INTERST.ATE STREAM COMPACTS

The Big Blue River Compact Commission, which was organized in July, 1961, pursuant to Congressional authorization held four meetings during the past two years. The assignment of the commission is to negotiate a compact to equitably apportion the waters of Big Blue River between the State of Nebraska and Kansas. An engineering committee, consisting of an engineer designated by each of the State Commissioners and by the Federal

12 REPORT OF THE

representative has been assembling data on which to base a formula for apportioning the waters.

During the biennium the U. S. Geological Survey, the Conservation and Survey Division of the University, and the Department of Water Re-sources have developed an electric model of the basin under a cooperative program. Reliable information as to the effect of ground water withdrawals on surface an ground water supplies are being obtained. With the data now at hand the commission should be able to consummate a compact in time to submit it to the legislatures of the states and to the Congress in 1967.

The Lower Niobrara River and Ponca Creek Compact which was ratiied by the South Dakota and Nebraska Legislatures in 1961, and the Upper Niobrara River Compact between Wyoming and Nebraska, which wa§ ratified by the two legislatures in 1963, have not been acted upon by the Congress. Bills for Congressional approval of these compacts were intro-duced in the 1963 and 1964 sessions, but they received no action. New bills will be introduced in the 1965 session.

The Republican River Compact Administration, .composed of the water officials of Colorado, Kansas and Nebraska, has met regularly during the biepnium. The administration computes the annual virgin flow at the coJllpact gaging stations, and the annual consumptive use within the basin in each of the three states. These data are published in the annual reports of the administration.

NEW DEVELOPMENT

The Red Willow Dam and the main canal and distribution system to supply water for 4,200 acres along the Red Willow Creek and the north side of the Republican River was completed, and water service was available for all of the lands in 1964.

In the Loup River Basin, good progress was made on the Farwell Unit by the U.S. Bureau of Reclamation. All of the main canals and laterals wefe completed except for the South Canal and laterals which were 80 per cent complete. Water service to a total of 37,900 acres will be available in the spring of 1965. The Middle Loup Public P~wer and Irrigation District colflpleted the construction of a siphon across the Middle Loup River from the Farwell Canal diversion works to Middle Loup District's headgate on the south side of the river. This will improve service to the District, and it will eliminate the maintenance of the present diversion dam which will be removed.

No action has been taken on the reauthorization of North Loup Divi-sion for which a fesaibility report was submitted by the U. S. Bureau of Reclamation in 1961. A proposed dam and reservoir on the Loup River near Fullerton for which a reconnaisance type study was completed in June, 1962, was found by the Secretary of the Interior to be infeasible.' The report of the Regional Director of the Cedar Rapids Division on the Cedar River, to irrigate some 30,000 acres, was nearing completion.

Legislation to authorize the Nebraska Mid-State Reclamation District project as a unit of the Missouri Basin Project failed to pass in either the 1963 or 1964 sessions of Congress.

DEPARTMENT OF WATER RESOURCES 13

In the Niobrara Basin, the Merritt Dam and Reservoir were completed in the fall of 1964. The main Ainsworth Canal was esssentially completed, with the first section of laterals and drains about 40 per cent completed.

The petition for the formation of the North Central Nebraska Reclama-tion District was approved in January, 1963, by the Department of Water Resources. This district, which embraces the lands in the proposed 77,000-acre O'Neill Unit, is the fourth reclamation district to be organized in the state. The proposition of levying a tax, submitted to the electors of the district in October, 1962, was voted down.

The basin-wide studies in the Big Blue River Basin and in the Elkhorn River Basin, the coordination of which was undertaken in 1962 by the State Soil and Water Conservation Commission have progressed according to schedule. The Bureau of Reclamation, Soil Conservation Service and the Army Corps of Engineers have submitted progress reports from time to time which assure the completion of studies in 1966 on the Big Blue River and in 1967 in the Elkhorn River Basin.

PUBLIC POWER AND IRRIGATION DISTRICTS

The 1963 Legislature, in passing Legislative· Bill 220, established the five-man Power Review Board within the Department of Water Resources and assigned to the Board the authority with respect to transmission line extensions vested in the director by the 1961 Session. It also provides for the establishing by the Board of service area agreements among suppliers of power at retail, and gives the Board advisory powers in wholesale power rate disputes. During the first year of operation, the Board held 38 regular meetings and 41 conferences or meetings with power groups, Federal officials and members of the legislature. Eight hearings were held on transmission and generation applications and one on a rate dispute. Fifty-two service area agreements were approved out of 290 submitted, and 214 applications for line extensions were approved.

During the biennium three petitions of public power districts to amend their creative petitions were heard and approved by the Director of Water Resources. The Polk County Rural Public Power District petition was amended to divide the district into three sub-divisions for the nomination and election of directors. The Stanton County Public Power District re-duced the number of members of the board of directors from eight to six. The petition of the Omaha Public Power District was amended to add to the territory of the district the territory within the Eastern Nebraska Public Power District, to effectuate the merger of the two districts.

14 REPORT OF THE

STATISTICAL SUMMARY

The following is a summary of the statistical record for the biennium ending September 30, 1964. Applications for water appropriations------------------------Municipal well applications --------------------------------Appropriations Canceled ___ -------------------- __________ _ Applications dismissed ------------------- ________________ _ Irrigation wells registered October 1, 1962 to

September 30, 1964 ------------------------------------Total irrigation wells registered ----------------------------Hearings held Re: Water appropriations ------------------Hearings held Re: Public Power District organization _____ _ Hearings held Re: Municipal wells ------------------------Hearings held Re: Reclamation District formation ----------Relocation petitions ------------------------- ____________ _ Deeds recorded (involving 273 appropriations) --------------Reports of field investigations ------------------------------Maps and plans ------------------------------------------Stream measurements ------------------------------------Canal measurements --------------------------------------Stream gaging stations with recording gages ----------------Stream gaging stations without recording gages --------------Canal gaging stations with recording gages ------------------Fees collected covering:

Applications for surface water, power leases, deeds,

335 4

78 8

1,285 25,684

4 3 1 1 7

236 59

347 8,079 8,319

165 35

118

petitions and copying records ______________________ $ 58,146.22 Fees collected covering:

Registration of irrigation wells, spacing permits, and copying records ------------------------------

Total --------------------------------------Fees collected covering:

Proceeds of assessments on electrical utilities for

9,514.00 67,660.22

support of Power Review Board-1963-1964 ---------- 115,635.41

DEPARTMENT OF WATER RESOURCES 15

TOTAL NUMBER OF REGISTERED IRRIGATION WELLS

IN NEBRASKA UP TO SEPTEMBER 30, 1964

(Including Industrial and Municipal Wells)

Adams ---------------- 699 Antelope -------------- 120 Arthur ---------------- 7 Banner ---------------- 54 Blaine ---------------- 10 Boone ---------------- 279 Box Butte-------------- 257 Boyd ------------------ 0 Brown ---------------- 94 Buffalo ---------------- 1,905 Burt ------------------ 71 Butler ---------------- 374 Cass ------------------ 19 Cedar ---------------- 33 Chase ---------------- 174 Cherry ---------------- 18 Cheyenne-------------- 160 Clay ------------------ 849 Colfax ---------------- 291 Cuming ---------------- 45 Custer ---------------- 549 Dakota ---------------- 16 Dawes ---------------- Hl Dawson -------------- 2,211 Deuel ---------------- 136 Dixon ---------------- 3 Dodge ---------------- 535 Douglas -------------- 93 Dundy ---------------- 112 Fillmore -------------- 716 Franklin -------------- 220 Frontier -------------- 1()9 Furnas ---------------- 200 C:age ------------------ 112 (;arden ---------------- 75 C:arfield -------------- 48 C:osper ---------------- 151 (;rant ---------------- 4 C:reeley ---------------- 159 Hall ------------------ 2,166 Hamilton -------------- 1,370 Harlan ---------------- 210 Hayes ---------------- 65 Hitchcock ------------ 17.5 Holt ------------------ 196 Hooker ---------------- 4 Howard -------------- 26fJ Jefferson -------------- 119

Johnson -------------- 12 Kearney -------------- 641 Keith ------------------ 362 Keya Palm ------------ 5 Kimball -------------- 113 Knox ------------------ 21 Lancaster -------------- 102 Lincoln ---------------- 568 Logan ---------------- 26 Loup ------------------ 27 McPherson ------------ •1 Madison -------------- 86 Merrick -------------- 2,008 Morrill ---------------- 143 Nance ---------------- 126 Namaha -----,--------- 5 Nuckolls -------------- 248 Otoe ------------------ 2 Pa,vnee -------------- 1 Perkins ---------------- 47 Phelps ---------------- 568 Pierce ---------------- 74 Platte ---------------- 467 Polk ------------------ 729 Red Willow ------------ 190 Richardson ------------ 1 Rock ------------------ 14 Saline ---------------- 268 Sarpy ---------------- 75 Saunders -------------- 132 Scotts Bluff ------------ 306 Seward ---------------- 365 Sheridan -------------- 123 Sherman -------------- 139 Sioux ------------------ 76 Stanton ---------------- 73 Thayer ---------------- 477 Thomas ---------------- 12 Thurston -------------- 17 Valley ---------------- 151 Washington ------------ 18 \Vayne ---------------- 10 Webster -------------- 133 Wheeler -------------- 13 York ------------------ 1,205

TOTAL WELLS REC:ISTERED ________ 25,684

COURT DECISIONS

17

THIS PAGE INTENTIONALLY LEFT BLANK

18 REPORT OF THE

IN THE SUPREME COURT OF NEBRASKA

HICKMAN

v.

LOUP RIVER PUBLIC POWER DISTRICT

173 N. 440-113 NW 2nd 624

35555

Filed February 21, 1964

1. Under section 81-6313, Comp. St. 1929, now section 46-238, R. R. S. 1943, the Department of Water Resources is authorized to extend the completion date for construction, fixed by the order granting an application for an appropriation of water, when such extension is made necessary by temporary interruptions by some unavoidable and natural cause.

2. The Department has authority to extend the time, if not beyond the final limit permitted by statute, although the application therefor was made after the time first fixed by it had expired.

3. An order of the Department in a matter over which it has jurisdic-tion is clothed with the presumption of regularity and validity.

4. The application of appropriated water to beneficial use operates as a condition subsequent which in fact fixes the extent of the right originally acquired.

5. An appropriator will not he permitted to retain the right to water which he does not put ro a beneficial use and thus deprive others of its benefits.

6. The putting of appropriated waters to a beneficial use in an ir-rigation appropriation, where the requirements of beneficial use are spelled out in the statute, is ordinarily different than in an appropriation for power purposes where requirements constituting beneficial use are not specified.

7. In determining when an appropriation of water for the generation of hydroelectric power for sale to the public has been put to a public use, the courts will not close their eyes to the realities of business life.

8. In a consideration of applicable statutes, the history of the law of appropriation, and the public policy of the state, we hold that an appropria-tion of water for power for sale to the public is complete, and has been put to a public use, when the appropriator has fully complied with the control-ling statutes, has constructed its power facilities and placed them in opera-tion, and is ready and willing to deliver hydroelectric energy to users upon demand.

9. A completed appropriation of water for power purposes remains a valid appropriation to the full extent of its granted right unless restricted by a finding of abandonment or nonuser in a proper proceeding commenced under sections 46-229 to 46-229.05, R. R. S. 1943.

DEPARH.IENT OF WATER RESOURCES 19

10. Limitations on an appropriative right in the waters of a stream restrict the appropriator only, and do not amount to a grant to a junior appropriator or one having no appropriation at all.

11. \\1here the state has entered into leases with an appropriator of water for powt>r purposes, and collected substantial annual payments there-under for 25 years, based on the maximum rate of diversion and the maxi-mum total ]wad permitted in the approved applic:ttions, it constitutes an administrative construction supporting the validity of the appropnation.

1:2. An extension of time to put appropriated waters of a stream to beneficial ust> inhert>s in an t>xtension of time to complete construction.

13. The grant of an application by the Department to increase the total head of water at an appropriator's generating plants, without an increase in the rate of diversion from the stream, in no manner affects junior ap-propriators and they lack the legal capacity to raise the issue of its invalidity.

Heard before White, C. J., Cartt>r, Messmore, Yeager, Spencer, Bos-laugh, and Brower, JJ.

CARTER,J.

This is an appeal from an order of the Director of the Department of \Vater Resources of the State of Nebraska in a proceeding brought by the petitioner Max D. Hickman to secure the cancellation and annulment of the appropriation rights of the respondent Loup River Public Power District arising out of application No. :2:287 for 3,500 cubic feet of water per second of time from the Loup River for the development of power with a priority date of September 15, 1932, and application No. 2573 for an additional power head of 18 feet in using the water appropriated by application No. 2:287, which was granted on April :21, 1936. Petitions of intervention were filed by the Middle Loup Public Power and Irrigation District, North Loup River Public Power and Irrigation District, and Paul H. Dean, receiver for North Loup River Public Power and Irrigation District. The final order of the Director of the Department of Water Resources determined that the maximum amount of the water appropriation under application· No. :2287 by virtue of the beneficial use made of water under its priority on or befon· August 24, 1937, was 506 cubic feet of water per second of time for the generation of hydroelectric power under a total head of water of 1:26 feet. The Loup River Public Power District has appealed to this court from thl' final order of the Director of the Department of Water Resources entered in the case on December 28, 196:2.

\Ve shall hereafter refer to the petitioner as Hickman, to the respondent Loup IYver Public Power District as Loup District, to the North Lotq~ River Public Power and Irrigation District as North Loup District, to the Middle Loup Public Power and Irrigation District as Middle Loup Dis-trict, and to the Department of Water Resources of the State of Nebraska and its predecessors as Department. The Director of the Department of \Vater Resources will be designated as director.

The case was previously before this court and the relationship of each of the parties to the litigation is set out in the opinion in that case. Hick-man v. Loup River Public Power Dist., 173 Neb. 428, 113 N. W. 2d 6I7.

:20 REPORT OF THE

We ·shall only refer to their relationship briefly in considering the issues on their merits on the present appeal.

Hickman is the owner of an appropriation of the public waters of the Middle Loup River for the purpose of irrigation for 1.28 cubic feet per second of time with a priority date of October 23, 1939, which is junior to the claimed appropriation rights of Loup District. He brings the proceeding as a class action on behalf of himself and all junior appropriators of water for irrigation purposes from the Loup River and its tributaries, whose points of diversion are upstream from the diversion point of the Loup District and whose priority dates are subsequent to September 15, 1932, the claimed priority date of Loup District.

The interveners, although barred by section 46-238, R. R. S. 1943, from bringing action for the cancellation and annulment of the appropriation right of Loup District because of the 1-year limitation therein contained, were permitted to intervene because of the reasons stated in the former appeal. The primary issue raised is the validity of Loup District's appropria-tion right and, it valid, the extent thereof.

An application for the appropriation of the public waters of the Loup River for the purpose of generating power with a priority date of Septem-ber 15, 1932, and wi~h a diversion rate of 3,500 cubic feet per second of time was duly filed with the Department on behalf of Loup District. .'\ corrected application was subsequently filed on Jl'lne 12, 1933. On March 22, 1934, the application was granted. The terms and conditions of the ap-propriation as contained in the application are as follows: The amount of the appropriation is 3,500 cubic feet per second of time with a priority date of September 15, 1932. The capacity of the plant was to be 49,500 horse-power. The maximum head or fall that it is practical to maintain at the .,v,rage low water stage of the stream is 1:26 feet. The plant was to be completed on or before June 30, 1935, and would be put in operation by that date. The order of March 22, 1934, approving the application provided that the water appropriated shall be used for the purpose of developing power and unless unforeseen accident or delay beyond applicant's control shall intervene, (a) excavation or construction shall begin on or before August 24, 1934, (b) applicant shall proceed with diligence and prosecute the work of construction continuously to completion, the period for com-pletion to expire on August 24, 1937 and (c) the time for applying the water to the beneficial use indicated is August 24, 1937. The appropriation was subject to described appropriations of Middle Loup District and Nooch Loup District, about which there is no issue in this case. A lease for the public waters was required to be filed with the Department requiring the payment to the state of $10 for each one hundred horsepower for all water appropriated. The order lastly provided: "The breach of any of the condi-tions herein recited shall be ground for cancellation and revocation of tlh water right in the manner and upon the terms and conditions provided bv law, and in the absence of such law, then such cancellation or revocation shall be declared and become effective following the procedurai require-ments of Section 81-6309 of the Compiled Statutes of Nebraska, 1929."

Section 81-6309, Comp. St. 1929, provided the method by which the Department, after notice and hearing, can forfeit and annul an appropria-tion of water not being used for some beneficial or useful purpose, or having been so used at one time has ceased to be used for such purpose for more

DEPARDIENT OF WATEH HESOUHCES 21

than three years. No proceeding under this statute was ever instituted by the Department to forfeit, annul, or limit the appropriation of Loup District. It seems evident that under this statute the appropriation right, if once completed, remains valid unless and until the Department, by the procedure therein set out, enters its order forfeiting and annulling the appropriative right in whole or in part. Section 81-639, Comp. St. 19:29, as amended, now appears as sections 46-:229 to 46-2:29.05, R. R. S. 1943.

The evidence shows that an application for an elltension of time to complete the construction of the project was filed on August 20, 1937, and a further application in lieu thereof on November 15, 1937 On November 20, 1937, the extension was granted by the Department fixing the time for completing the construction under applications Nos. 2287 and 2573 as July 1, 1938. It is one of the contentions of Hickman and the interveners that the construction work was not completed nor the water put to a beneficial use on or helore August 24, 1937, the original completion date, nor was the construction work completed and the appropriated water put to bene-ficial use on or before July 1, 1938, the extended date, if the order of extension was valid, which Hickman and interveners deny.

It is the contention of Loup District that the terms of the grant of the appropriation right were complied with and that the appropriation of water for power purposes has become absolute and final. The Loup District bas asserted the additional defenses of laches, estoppel, and the statute of limitations. It is upon the issues thus raised that the case must be deter-mined.

The water appropriated under application No. 2287 is diverted on the north bank of the Loup River approximately 4 or 5 miles west of Genoa, Nebraska, at which point its diversion work have been constructed. The water is there diverted into a supply canal having a carrying capacity of 3,500 cubic feet per second of time. Approximately 2 miles from the diver-sion works a desilting basin about 10,000 feet in length has been constructed in the canal. At the lower end of the desilting basin the water passes over a skimming weir which has for its purpose the holding of sand from the river in the desilting basin. An electrically operated power dredge cleans the sand from the desilting basin and dumps it into a sand disposal facility. Fourteen miles down the canal from the diversion point the Monroe generat-ing plant is constructed. After going through or by-passing the Monroe power plant, the water continues down the canal a distance of 17 miles to the Columbus power plant. Two miles or so west of the Columbus power plant the water passes through the Lake Babcock regulating reservoir which covers about 1,200 acres. From the Columbus power plant the water is returned to the Loup River by a tailrace which is approximately 6 miles in length. The Monroe plant is a three-turbine, three-generator plant capable of using a maximum head of water of 29 feet 9 inches. The Columbus plant is likewise a three-turbine, three-generator plant having the capacity to use a maximum head of water of 113 feet 8 inches. The capacity of the Monroe plant is 14,100 horsepower, while that of the Colum-bus plant is 49,500 horsepower.

The record shows that the appropriation order on application No. 2287 permits a total head of water of 126 feet. The order of the Department on application No. 2573, authorizing the construction of the Monroe plant without any additional appropriation of water over that granted on ap-

22 REPORT OF THE

plication No. 2287, permitted in additional head of water in the amount of 18 feet. The total head of water authorized under applications Nos. 2287 and 2573 was therefore 144 feet.

The cost of construction of the 26-mile supply canal; the head works at the point of diversion; the desilting basin, skimming weir, and dredge; the regulating reservoir known as Lake Babcock; the plants at Monroe and Columbus, including the buildings, turbines, and generating equipment; and the substations adjacent to the power plants were financed by a loan of $6,847,000 by the Public Works Administration of the federal govern-ment and a grant of $1,850,000 by the same governmental agency. A second loan in the amount of $1,273,000 and an additional grant of $856,000 were subsequently secured from the Public \Vorks Administration, which were used in part for the construction of transmission lines from Columbus to Lincoln, Fremont, Norfolk, and to a point of interconnection with the Polk County Rural Power District. These loans and grants total $10,826,000. It is stipulated that the Loup District expended $13,000,000 for construction prior to 1957, $9,295,000 of which remains unpaid.

The Loup District has been operating the Monroe and Columbus plants for many years. The amount of electric energy generated has fluctuated from year to year. In 1961 the Columbus plant produced 126,069,600 kilo-watt hours and the Monroe plant produced 30,293,700 kilowatt hours during the same year, a total of 156,363,300 kilowatt hours. The peak prod-duction year was 1951 when the Columbus plant produced 131,243,000 kilowatt hours and the Monroe plant 33,281,330, a total of 164,524,330 kilo-watt hours. The yearly fluctuation can be accounted for on several grounds such as adverse weather conditions that would reduce the natural flow of the stream, unauthorized diversions above Loup District's diversion works, agreements for compensation for interference with its appropriation in lieu of condemnation, and hesitancy in contracting for the sale of the maximum capacity of its plants in view of the uncertainty of a maximum source of production. The evidence shows fluctuations in production over the years, a result that is reasonably to be expected.

The record further shows that Loup District entered into a lease with the state for the use of the public waters of the state for power purposes within the limit of its appropriation as required by section 81-638, Comp. St. 1929, now section 46-236, R. R. S. 1943. The Department has demanded and the Loup District has paid the sum of $5,011.30 each year beginning with 1937 on application No. 2287, and the sum of $715.90 each year since 1937 on application No. 2573. The formula by which these amounts were calculated includes the rate of diversion as 3,500 cubic feet per second of time and a head of water of 144 feet. The Department did not collect for the year 1936, for the reasons given by the Chief of the Bureau of Irrigation, Water Power, and Drainage in a letter to the State Engineer under date of February 16, 1938, in which it is stated: "These figures are based on 3500 second-feet of water appropriated, measured at the diver-sion point, and a head of 144 second-feet. Charges for royalties for 19:36 were omitted for the reason that no water was diverted from the Loup River by the Loup River Public Power District under Application 2287, for power. The water diverted in 1936 was not by virtue of any appropria-tion or permit from the State. It was taken and used to soak up the canal and Babcock Lake through tolerance on the part of the State."

DEPARTMENT OF WATER RESOURCES 23

The progress made in the construction of the project was testified to by Paul M. l'eterson, chief accountant and deputy treasurer of Loup Dis-trict. He testified to records, most of which he personally made, which were required by the Public \Vorks Administration and Loup District. The following is a summary of his testimony: Construction was commenced on July 31, 1934. Lake Babcock regulating reservoir was completed on September 8, 1936. The supply canal was completed on September 12, 1936. The tailrace was completed on September 30, 1936. The diversion works were completed on December 5, 1936. The generators and turbines were completely installed on March 31, 1937. The Monroe generating plant was completed on August 24, 1937. The electric power dredge was completed in late August 1937, and after a period of testing was certified as completed on October 31, 1937. The Columbus generating plant was completed on December 11, 1937. All electrical equipment was completely installed on March 15, 1938. Loup District entered into an agreement with Platte Valley Public Power and Irrigation District for the sale, interchange, and purchase of electrical energy on May 28, 1937. The transmission line to facilitate this agreement was built by the Platte Valley Public Power and Irrigation Dis-trict and was completed in the late fall of 1936. Transmission lines from Columbus to Fremont, Lincoln, Norfolk, and the Polk County Rural Power District were completed by the Loup District on July l, 1938, August 10, 1938, August 31, 1938, and May 10, 193b, respectively. Substations at

. Fremont, Lincoln, and Norfolk were completed on July 8, 1938, August 31, 1938, and August 31, 1938, respectively. Loup District commenced the diversion of water through its headgates on December 2, 1936, for the seasoning of the canal. Electrical energy was first generated at the Monroe plant on March 5, 1937, and at the Columbus plant on August 21, 1937. Continuous generation of electrical energy at the Monroe plant was com-menced on August 6, 1937, and at the Columbus plant on October 20, 1937. The generation of electricity was used for some time thereafter for station use and in dredging operations at the desilting basin. A part of the energy produced from October 20, 1937, to July 1, 1938, was sold to Platte Valley Public Power and Irrigation District and the Polk County Rural Power Dis-trict. Electrical energy has been continuously produced by the Columbus and Monroe hydroelectric plants since July 1, 1938, and :;...oup District pre-sently sells to Consumers Public Power District, 27 rural public power districts and membership cooperatives, 8 municipalities, and others such as ammunition depots and other governmental agencies.

The evidence shows that the Lake Babcock regulating reservoir enables the Columbus plant to generate electrical energy in excess of the amount carried in the canal above Lake Babcock for 3 or 4 hours because of its storage capacity. This enables the Columbus plant to pick up peak loads for 3 or 4-hour periods. During the periods when the demand is low the Columbus plant is able to relieve the thermal plants operated by Loup District and thereby reduce fuel costs in those plants. The Monroe plant has no regulating reservoir and no ability to increase its production during peak periods. Since the water used at Monroe is much less than the capacity of the supply canal, its production is limited by its generating capacity and not by its water supply, while the opposite is true within limits at the Columbus plant.

It is here contended by Hickman and the interveners that Loup Dis-trict failed to construct its facility and put its appropriated water to public

24 REPORT OF THE

use on or before August 24, 1937. It is also contended that the purported extension granted by the Department to July 1, 1938, was unauthorized and void. It is further contended that if the extension was valid, Loup District failed to put its appropriated water to designated use within the extended time. It is necessary therefore to determine th"e date when construction was required to be completed and the water put to the designated use. This in turn requires a determination of the validity of the order of the De-partment extending the completion date from August 24, 1937, to July 1, 1938, and if unauthorized, the effect thereof on the appropriation rights of Loup District under the existing facts and circumstances.

On August 20, 1937, Loup District filed an application for an exten-sion of time of its completion date. On November 15, 1937, it filed a second application in lieu of the first application. The only change in the two appears to be the addition of a verification to the original application. The extension of time was granted by the Department on November 20, 1937. It is contended that the application was made out of time. In Pool v. Utah County Light & Power Co., 36 Utah 508, 105 P. 289, the court in passing on this question held that the state engineer could extend the time if not beyond the final limit fixed by the statute, although the application there-for is made after the time first fixed by him has expired. The applicable statute in the present case, section 81-6313, Comp. St. 1929, now section 46-238, R. R. S. 1943, provided that the completion date shall be fixed by the Department in the original appropriation and shall be final notwith-standing the ordinary delays and casualties that must be expected and guarded against, but, although the construction must proceed vigorously, diligently, and uninterruptedly to completion, such requirement is limited by the words "unless temporarily interrupted by some unavoidable and natural cause." The quoted words have been interpreted by this court to empower the Department to extend the completion date where the delay is the result of an unavoidable and natural cause. In re-Application of Babson, 105 Neb. 317, 180 N. W. 562; North Loup River Public Power & lrr. Dist. v. Loup River Public Power Dist., 162 Neb. 22, 74 N. W. 2d 863. The effect of the statute is to fix the completion date as the designated date containPAl in the Department's order approving the application, plus any delays re-sulting from unavoidable and natural causes. Since the Department, ·then as now, is given jurisdiction over all matters pertaining to water rights for irrigation, power, or other useful purposes, it is for the Department to determine if delays resulted from unavoidable and natural causes. While the statute does not require the filing of an application for an extension of time when construction is temporarily interrupted by some unavoidable and natural cause, this court in the cases above cited has recognized a written application for an extension of time as a means of invoking the powers of the Department in administering the statute. The order grant-ing the extension of time in the present case states that upon examination of the petition for extension and the records on file regarding the progress and development of the project, it is ordered that the completion date be extended to July 1, 1938. This order is clothed with the presumption of regularity and validity. There is evidence in the record that after a proper installation of the turbines and generators in the Columbus plant, a settling of the concrete caused a misalignment of the vertical shafts between the turbine and the generator on each of the three units. Since the turbines and generators, and the shafts which transmit power from the turbines to the generators, all operate at high speeds, many weeks were required to correct

DEPARTMENT OF WATER RESOURCES 25

and test the equipment before it could be operated under load. Loup Dis-trict was advised by its consulting engineers that if these units were used before the corrections were made they would assume no responsibility for resulting damage. The delay resulting was without fault on the part of the Loup District and came within the statute authorizing additional time to temporary interruptions by some unavoidable and natural cause. We must assume that the Department was aware of conditions on this develop-ment from progress reports on file and the reports of its field representa-tives. While the regularity of the extension order must be presumed, the evidence in the record does disclose that adquate grounds actually existed which would sustain its issuance. \Ve are of the opinion that the extension of time to July 1, 1938, for the completion of the construction of the pro-ject was authorized and valid, and that the director was in error in hold-ing the extension to be void.

It is the contention of Loup District that the approval of application No. 2287 by the Department was a conditional grant in praesenti of 3,500 cubic feet of water per second of time subject to the conditions imposed which is divested for breach of condition if, but only if, the person having the power chooses to exercise it. It is then urged that as 'the Department has no,t chosen to exercise it> authority to terminate the grant for breach of condition, there could be no forfeiture without judicial or legislative action, Admittedly no such action has been taken to forfeit the appropria-tion right and it is therefore contended by Loup District that, after con-struction and many years of operation, the right to forfeit is waived and lost. It is contended by Hickman and the interveners that the order approv-ing the application for an appropriative right was contingent and subject to conditions precedent. It is asserted that the grant being thus limited, there is no vesting of a right until the limitations and conditions precedent have been met within the time specified. We do not deem it necess:uy to engage in a discussion of the nature of the appropriative right as to being a grant on condition subsequent or a limited grant on condition precendent, in view of our subsequent holding herein that all conditions and limitations contained in the orders approving applications Nos, 2287 and 2573 have been met within the prescribed time.

We think the evidence in this case previously recited in this opinion establishes that construction of the power facility, including the diversion works, supply canal, tailrace, power stations, and generating equipment, was completed on or before July 1, 1938, the extended date for the comple-tion of such construction. It is true that due to the lapse of time the records of Loup District must be relied upon to a great extent in determining this question. Hickman and the interveners rely largely upon alleged admissions by officers of Loup District to support their contention that construction was not completed on or before July 1, 1938. Most of the admissions go to the question as to whether or not construction was complete and the appropriated water put to a public use prior to August 24, 1937. These admissions lose their import with the upholding of the validity of the extension of time fixing the completion date as July 1, 1938. The evidence also shows a report by Loup District that construction in the amount of $496,227.34 remained to be performed on July 1, 1938, and $474,856,61 ,rPmained to be performed as of August 1, 1938. Hickman and the inter-veners made no atempt to show the nature of the construction remaining to be performed on and after July 1, 1938. The evidence of Loup District

26 REPORT OF THE

is that the construction remaining to be performed on or after July 1, 1938, was transmission lines and other work incidental only to the produc-tion of power. The evidence of Hickman and the interveners will not sustain a finding that construction on the project was not completed prior to July 1, 1938, in accordance with the requirements of Loup District's ap-propriative grant and the plans and specifications submitted to and ap-proved by the Department.

The finding that the construction was completed within the prescribed completion date requires the determination of a second question of equal importance, to wit, were the waters appropriated by application No. 2287 put to beneficial use within the time specified by law and the conditions of the grant"r' The question as to when an appropriation of the water of a stream for power purposes is put to beneficial use appears to present a case of first impression in this state. Its consideration requires as examina-tion of the applicable constitutional and statutory provisions and the public policy of the state as revealed therein.

The Constitution declares the necessity of water for domestic use and for irrigation purposes to be a natural want. Art. XV, s. 4, Constitution of Nebraska. It is the public policy of the state to maintain a rigid economy in the usc of the public waters of the state. One of the primary purposes ot the state in providing for its control and administration of public waters is to avoid waste and to secure the greatest benefit possible from the water available for appropriation for public use. The application of water to a beneficial usc operates as a condition subsequent which in fact fixes the

DEPARTMENT OF WATER RESOURCES 27

to the land within the time fixed. The statute then in existence did not authorize an extension of time. It did in cifect provide for an extension for temporary interruptions of construction by some unavoidable and natural cause. There was no evidence warranting an extension on such ground in that case and consequently the application of water to the land described in the application had to be made within the time fixed. Water was not so applied to all of the described lands. The effect of our opinion was to reduce the appropriation of water to the amount used to irrigate the lands in the district to which water had been applied within the time fixed. In the case of an appropriation for irrigation, the beneficial use required is spelled out in the application and grant. Beneficial use in such a case culminates when water has been applied to land described in the applica-tion. The appropriation right is therefore limited to the lands described in the application to which water was beneficially applied within the 'time prescribed by the order approving the application.

On the othl'r hand, an appropriation of water for power purposes re-quires the fixing of the rate of diversion only. There are no requirements for the fixing ot the volume of water diverted under a power appropriation. There is no spelling out of any act beyond the completion of construction that must be performed to constitute putting appropriated waters to bene-ficial use, as in the case of an irrigation appropriation. The inherent dif-ferences in the two uses and the differences in statutory requirements necessitate a difference in result in determining what constitutes putting to a beneficial use in the two instances.

The applicable statute, section 81-6316, Comp. St. 1929, now section 46-233, R. R. S. 1943, provided in part: "The application shall set forth the name and postofficc address of the applicant, the source from which said appropriation shall he made, the amount thereof as near as may be, the location of any proposed work in connection therewith, the time re-d to the time required for the completion of the work when prosecuted with diligence, the purpose for which water is to be applied, and, if for irrigation, a description of the land to be irrigated thereby, and the amount thereof and any additional facts which may be required by the department of public works." A second applicable statute, section 81-6318, Comp. St. 1929, now section 46-236, R. R. S. 1943, provided in part: "In case of an application for an appropriation of water for the development of water power, the department shall promptly act upon such application and limit !he time within u:hich such appropriation shall be perfected to the period tcithitl •chich the proposed power proiect can be completed by· uninter-rllpted ami expeditious com/ruction.'" (Emphasis supplied.) The empha-sizt>d portion of the statute clearly str notPd that thert' is no requirement as to any amount of power to ht> produced to constitute beneficial use within the meaning ot the statut(•; nor is there any requirement that a sale of electrical energy he had to the t•xtcnt of the capacity of the facilities or any part thereof; nor is there any requirement that transmission lines be built and energized in whole or in part to establish the putting of the faculty to a beneficial

28 REPORT OF THE

purpose or use. ln fact, there is no equivalent in the completion of a water power appropriation to the requirement in an irrigation appropriation that the land to be watered be described and water applied in beneficial quan-tities within the completion date. Considering the differences in the statutes as they relate to power and irrigation appropriations and the inherent difference in the purposes of each, we conclude that an ap-propriation for power purposes is perfected when the necessary facilities are constructed and the plants placed in operation. Unless this construc-tion of the statutes be correct, the development of water power would contain elements of risk and uncertainty that would defeat the purpose of the controlling statutes.

Hickman and the interveners consider the problems involved here as though they relate to an appropriation of water to a body of specifically described lands. This is not a question involving any such situation. The problem here is the determination of the rule to be applied to an appropria-tor whose purpose is the generation of hydroelectric power for sale to the public. There is ample reason for holding in accordance with the statute that the appropriation is complete when the works are constructed and some water is diverted and converted into hydroelectrical energy. The law of this case is that the appropriated water shall be put to beneficial use on or before July 1, 1938. There is no statutory provision as to the amount that shall he put to such use. As stated in City & County of Denver v. Sheriff, 105 Colo. 193, 96 P. 2d 836: .. Courts are not to shut their eyes to the realities of business life."

In a somewhat similar case involving an appropriation of water for sale to others, the Montana court stated as follows: .. 'If the intended ap-propriator constructs the works and appliances necessary for the diversion of the water and the carrying of it to points where its use is desirable and profitable, and has actually carried it there, or is ready and willing to do so, and offers it to all persons who are willing to pay for its use, we ap-prehend that his appropriation is complete, though the persons to whom it is thus offered refuse to receive or use it. They certainly cannot thus defeat the rights of the diverter.' To deny of the right of a public service corporation to make an appropriation independently of its present or future customers, and to have a definite time fixed at which its right attaches, would be to discourage the formation of such corporations and greatly retard the re-clamation of arid lands in localities where the magnitude of the undertaking is too great for individual enterprise, if, indeed, it would not defeat the object and purpose of the United States in its great reclamation projects, 0 0 0

• 0 0 0 Respectable authority can be found holding contrary to our

view; but upon a consideration of our statutes, the history of the law of appropriation, and the public policy of this state, we base our conclusion that, as to a public service corporation, its appropriation is complete when it has fully complied with the statute and has its distributing system com-pleted and is ready and willing to deliver water to users upon demand, and offers to do so." Bailey v. Tintinger, 45 Mont. 154, 122 P. 575.

This conclusion is indicated in Kearney \Vater & Electric Powers Co. v. Alfalfa Irr. Dist., 97 Neb 139, 149 N. W. 363, wherein it is stated: .. The state board in this case was not called upon to grant water for power. Its duty was to determine the validity and extent of an alleged completed appropriation. Under the present statute appropriations may be abandoned,

DEPARTMENT OF WATER RESOURCES 29

and the plaintiff's appropriation for power purposes should be regarded as abandoned, except so far as it had equipped itself to utilize it for that pur-pose when the act of 1889 took effect, or did so equip itself within a rea-sonable time thereafter. ..

Since the appropriation was complete on July 1, 1938, and no issue of abandonment or nonuser thereafter is made, the appropriation remains valid until the issue of abandonment or nonuser is questioned by a proper proceeding commenced under sections 46-229 to 46-229.05, R. R. S. 1943. Loup River Public Power Dist. v. North Loup River Public Power & Irr. Dist., 142 Neb. 141, 5 N. W. :2d 240. It is fundamental that the limitations on Loup District's appropriative right restrict that district only and do not amount to a grant to Hickman or the interveners. Loup District derives its rights solely hom its grant and, the grant having a priority as to time to the rights of Hickman and interveners, all its rights growing out of applications Nos. 2:287 and 2573 arc superior to those belonging to Hickman and inter-veners.

This conclusion appears to have been the one adopted by the Depart-ment since 1937. 1n 1937 the Department entered into leases with Loup District for the payment of $10 for each 100 horsepower for all water ap-propriated. Some water was diverted and used for the generation of electric energy d nring that year. For that year and each succeeding year since that time Loup District has paid a total of $5,727.20 based on a diversion rate of 3,500 cubic feet per second of time and a total head of 144 feet. During all the years that these payments have been made, the Department has in d applications Nos. 2287 and 2573 as completed and valid. The Department has in eHect treah·d the completion of construction and the use of some water for power purposes as a completed appropriation, in-dueling the putting of the appropriated waters to a beneficial use. This administrative construction, for a period of 25 years, supports the conclu-sion reached in this opinion that the completion of construction and the placing of the plants in operation, meet the requirements of the statute that the appropriation bo' put to a beneficial use.

llickman and the interveners contend that the extension of time to July 1, 1938, extPndcd the time only for purposes of construction and did not purport to ex!

.'30 REPORT OF THE

plants instt>ad of one, or even to make additional use of water in two exist-ing gt>nerating plants, appears to be consistent with the policy of the state's appropriation laws to avoid waste and to secure the greatest benefit possible from the use of the public waters of the state The Departments was re-quired, we think, to grant application No. 2573 unless its grant was not safe, feasible, or not in the public interest. No showing is made that the order granting the additional 18 foot head was in any manner an improvident one. The order granting application No. 2573 was a proper exercise of the powers lodged in the Department. The holding of the director, that the order granting the increase of total head by 18 feet was void, is consequently in error.

A cross-appeal has been taken in this case. The principle contention taken on cross-appeal is that Loup District's appropriation should have been held to be wholly void, and that the finding of the director that Loup Dis-trict's claimed total head of water was valid to the extent of 126 feet was in error. All questions raised on cross-appeal are answered by what we have heretofore said. They have been answered adversely to the contentions of the cross-appellants and we therefor hold without further discussion that the cross-appeal cannot be sustained.

The order of the Director of \Vater Resources is reversed and the peti-tion and petitions in intervention are dismissed. The costs are ta'

DIVISION OF STATISTICS

WATER DIVISIONS MAP OF

N!:BRASKA

WATER DIVISIONS AND WATER DISTRICTS WATER DIVISIONS: DENOMINATION

The State of Nebraska is hereby divided into two water divisions, denominated Water Division No. 1 and Water Division No. 2, respectively. Reissue Revised Statutes, 1943, 46-215.

WATER DIVISION NO. 1. BOUNDARIES

Water Division No. 1 shall consist of all the lands of the state drained by the Platte rivers and their tributaries lying west of the mouth of the Loup river; and also all other lands lying south of the Platte and South Platte rivers that may be watered from other superficial or subterranean streams not tributary to the Platte river. Reissue Revised Statutes, 1943, 46-216.

WATER DIVISION NO.2. BOUNDARIES

Water Division No. 2 shall consist of all lands that may be watered from the Loup, White, Niobrara and Elkhorn rivers and their tributaries, and other lands of the state not included in any other water division. Reissue Revised Statutes, 1943, 46-217.

For convenience in the adjudication of claims and in the distribution of water, these divisions have been subdivided into twelve water divisions, de-nominated 1-A, 1-B, 1-C, 1-D, 1-E, 1-F, 2-A, 2-B, 2-C, 2-D, 2-E and 2-F, as shown on the opposite page.

CLAIMS AND APPLICATIONS

The following tables give a complete list of all claims and applications of record in the Department of Water Resources which have not been canceled. This list also includes applications which have been filed and not approved.

The claims and applications have been arranged in each water division by streams in alphabetical order, and the appropria-tions on each stream are arranged in order of priority.

Appropriations having docket numbers refer to claims covering rights which were acquired the law prior to April 4, 1895, and :hose having application nUIJ!bers were filed to appropriate water under the law of 1895.

Following these tables is a list of water appropriations which have been canceled in full or in part, or which have been cli;missed during the past two years.

CLAIMS AND APPLICATIONS BY STREAMS IN DIVISION NO 1-A

Use to Provl-which sional Location of Date of Doc. App.

Soun:e Appropriator and Address Carrier Applied Grant in Diversion or Dam Priority No. No. Sec.-ft. s T R County

Ash Creek .... ... Karl Herman Lohner, Lewellen Gillan! Caoal .. lrrig. 1.43 3 16 42 Carden . ... .. Dec . 31 1800 812 Ash Creek .... .. Evan V. Rittenhouse, Lewellen Pump .......... . .. lrrig . .. .43 ~ 16 42 Ganlen . .. . Oct. 22 1940 3305 Ash Creek .. .. ... Clark and Clark, Lewellen fctark Reservoir ~torage 19 AF 16 42 Garden . ... Dec. 16 1948 4403 Ash Creek .. ... Walter J. Wolford, Lewellen Pump . .. lrrig. 5.54 9 16 42 Garden . May I 1950 4660 Ash Creek ..... Walter J. Wolford, Lewellen Ash Creek Reservoir .... Storage .. 7.5 AF 0 16 42 Garden . ... .. May 3 1950 4671 Ash Creek ..... Herman Lohner, Lewellen jcillanl Canal ... lrrig. .... .96 3 16 42 Garden . ... Jan. 25 1954 5900 Ash Creek .. Herman Lohner, Lewellen jcillanl Canal ... lrrig. .. .16 3 16 42 Carden . .. June 17 1958 9628 Ash Creek Res. .. Walter J. Wolford, Lewellen Pump .... . Stor-on]y 0 16 42 Garden ... May 3 1950 4833

Big Hom Creek ... John 0. Mohr, Harrisburg Muhr Canal ... Irrig. 1.03 5 19 54 Banner . Jan. 24 1947 4027

Birdwood Creek .. Birdwood Irrig. District, North Platte Birdwood Canal .... lrrig. 44.06 35 15 33 Lincoln . .. Oct. 21 1893 646 Birdwood Creek .. Equitable Farm and Stock Imp. Co., twest Birdwood Canal .. lrrig. 1.23 2 15 33 Lincoln . .. Jan. 16 1894 652

North Platte

~ Binlwood Creek . . William Hoatson, Hershey Pump . . lrrig . .22 15 33 Lincoln ... Jan . 16 1894 652R Binlwood Creek .. i!:?~ck Kelso, Hershey !rump rrig. 1.96 16 33 Lincoln . June 14 1948 4286 Binlwood Creek .. Wm. Hoatson, Hershey Pump rrig . .. 1.65 ps 15 33 Lincoln . Feb. 6 1953 5!50

Blue Creek . 'union lrrig. and Water Power Co., Lewellen

Blue Creek ...... Union lrrig. and Water Power Co .• Lewellen

Blue Creek ...... Hooper lrrig. District, Lewellen Blue Creek .... . . Hooper lrrig. District, Lewellen Blue Creek ...... Blue Creek lrrig. District, Lewellen Blue Creek ..... Meeker Ditch Company, Lewellen Blue Creek . Meeker Ditch Company, Lewellen Blue Creek ...... Blue Creek Irrig. District, Lewellen Blue Creek . Paisley Irrig. District, Oshkosh (No. Platte R.) . Clifforo C. Tapp, Oshkosh Blue Creek . Paisley Irrig. District, Oshkosh Blue Creek . J. E . Eggers, Hershey Blue Creek ... ... Paisley Irrig. District, Oshkosh Blue Creek, Trib. to Eugene Delatour, Lewellen

Broncho Lake ..... True Miller, Alliance

Browns Creek . George H. Haxby, Bridgeport

Brown Reservoir . D. V. Brown Estate, McGrew

Buckhorn Spring . . Buckhorn Springs Ranch Co., Ogallala

Buffalo Creek: . Walter W. Kopf, Lexington Buffalo Creek . John L. Broe, Ehn Creek Buffalo Creek Emeal A. Volkman, Overton Bnffalo Creek . W. J. Phi1pot, Overton Buffalo Creek . The Union Central Life Insurance

Company, Grand Island Buffalo Creek .... George E. Mitchell, Ehn Creek Buffalo Creek . Raymond M. Gilmore, Kearney

Stor-only. Land does not have a direct flow appropriation. R. Denotes relocation. O.D. Denotes optional diversion.

Union Canal ······· lrrig. .....

Graf Canal .... ······· Irrig.

Hooper Canal ······· Irrig. Graf Canal ....... lrrig. Blue Creek Canal ....... lrrig. Craf Canal ....... Irrig. Hooper Canal · Irrig. Blue Creek Canal ..... .. brig. .. Paisley Canal · Irrig. Midland-Overland Canal ·O.D. Paisley Canal ....... Irrig. Blue Creek Canal ... .... lrrig. Paisley Canal . lrrig. Delatour Reservoir · Storage

Broncho Lake · Irrig.

Haxberry Canal ...... lrrig . . ....

Brown Canal ....... Stor-only

Maddox Canal . Irrig. .....

Pump ....... lrrig. .. Pump ..... ....... lrrig. . ... Pump ........ . Irrig. . .... Pump lrrig . ..... Pump ......... ... Irrig . . .... Pump ...... . Irrig. . . ... Pump ...... . Irrig.

23.44 18 16 .j2

1.20 19 16 .j2

12.65 6 16 .j2 .21 19 16 42

165.71 33 17 42 31.43 19 16 42

.27 6 16 42 5.20 21 17 42

21.00 28 17 42 D-800 4 16 44

4.00 28 17 42 .43 33 17 42

3.30 28 17 42 4.93 AF 8 17 42

1.16 624 48

.43 19 20 48

17 19 53

2.28 8 14 36

.57 21 12 22 1.81 35 9 19 1.62 1! 9 19 3.33 I~ 9 19 1.65 920

I~ 2.16 9 19 2.22 8 18

Garden .. . . May

Garden . ... . . May

Garden ····· Sept. Garden . ... Sept. Garden . ... Dec . Garden . .... Apr . Carden ..... Apr. Garden . ... . . Sept. Garden .... . Nov . Carden ..... Nov . Garden .. ... July Garden ... Jan . Garden . Feb. Garden ... June

Box Butte ... May

Morrill July

Banner Nov.

Keith Oct.

Dawson Mar . Dawson Sept. Dawson July Dawson July Dawson ..... Oct.

Dawson Feb. Buffalo . .. Mar.

16 1890

16 1890

7 1893 7 1893

27 1893 2 1694 2 1694

27 1694 20 1894 20 1694 14 1699 4 1912

25 1924 23 1964

7 1926

17 1903

8 1950

3 1908

3 1926 15 1926 19 1927 26 1927 10 1927

20 1928 5 1928

763

763R

781 781R 765 788 7~E 795 800

1742 515

1154 1738

10387

1806

717

4878

918

1799 1659 1944 1946 1959

1965 1988

w

"'

CLAIMS AND APPLICATIONS BY STREAMS IN DIVISION NO 1 A C r ed l - on mu Provi-

Use to siona1 Location of Date of Doc. App. Source Appropriator and Address Carrier which Grant in Diversion or Dam Priority No. No.

Applied Sec.-ft. s T R County

Buffalo Creek .... William E. Strohm, Sr., Santa Fe, Pump ..... .. Irrig. . ... 2.21 4 8 18 Buffalo ······ Mar. 5 1928 1988 N. M.

Buffalo Creek .... Carl M. Winquest, Overton Wilson Canal .. lrrig. . . 2.29 18 9 19 Dawson . Nov. 12 1928 2052 Buffalo Creek ... Marie A. Ulrich, Lexington Pump Irrig. .52 1 8 19 Dawson . .. .. Feb. 4 1929 2068

(See Mud Cr.) Buffalo Creek .... Poulson Manufacturing and Investmen Pump . Irrig. 1.03 21 9 19 Dawson . . Mar. 5 1929 2074

Co., Inc., Elm Creek Buffalo Creek .. .. Alvie E. Payne, Kearney Pump . .. Irrig .23 33 9 18 Buffalo . June 19 1929 2087 Buffalo Creek ... . Earl Ebbers, Lincoln Pump ... . Irrig. ····· 4.57 12 9 20 Dawson . .. . July 13 1929 2089 Buffalo Creek .... Peter E. Jensen, Cozad Pump . .. lrrig. ..... 1.00 21 11 22 Dawson . July 17 1929 2090 Buffalo Creek .... Walter W. Kopf, Lexington Kop£ Reservoir . Storage 189 AF 21 12 22 Dawson . Dec. 23 1930 2180 Buffalo Creek .... Earl E. Bliss Estate, Elm Creek Pump .. Irrig. 1.21 18 9 19 Dawson .. June 20 1940 3185 Bti.ffalo Creek ... · Nebraska Mid.State Reclamation Buckeye Valley Reservoir . Storage 1 9 20 Dawson . Sept. 3 1943 31140'

District, Grand Island Buffalo Creek ··Harold Moles, Elm Creek Pump No. 2 . lrrig .frl 3 8 18 Buffalo . Aug. 7 1948 4322

Bnffalo Creek .. ··Raymond L. Hart Estate, Kearney Pump No.4 . Irrig. .71 3 8 18 Buffalo .. Aug. 7 1948 4324

Bull Drain ... .... Mrs. David Norris, Maxwell Norris Canal ... lrrig. .93 29 13 28 Lincoln . Feb. 18 1932 2253

Camp Creek . J. H. Wehn, Lincoln Camp Creek Canal .. . . Irrig . 1.43 13 18 49 Morrill . Mar . 16 1892 866

Carter Creek Wm. E. Gardner Estate, Gering Carter Canal . Irrig. ..... 3.38 27 21 56 Scotts Bluff . Oct. 13 1922 1691 . ....

Cedar Creek, W. F Mrs. Etta M. Fairchild, Sidney Nelson-Radcliffe Canal lrrig. 2.77 28 18 48 Morrill ...... June 1 1882 1034a

Cedar Creek, S. F Orville H. Fairchild, Broadwater Radcliffe Canal No. 2 .. Irrig. 1.23 34 18 48 Morrill . ..... July I 1885 1034b

Cedar Creek, E. F Mrs. Etta M. Fairchild, Sidney Radcliffe Canal No. 3 . lrrig. . 76 27 18 48 Morrill . Feb. 14 1890 1034c

Clark Reservior .. Clark and Clark, Lewellen Clark Pumps .. Supp. I .. D-788 34 16 42 Garden . Dec. 16 1948 4745

Stor-onl:y 34 16 42 Garden .. Dec. 16 1948 4745

!Clear Creek .... Fischer and Scripter, Lewellen Clear Creek Canal .. lrrig. 2.86 32 16 41 Keith ........ July 1 1888 748

Clear Creek .... Matt Curley, et al., Lewellen Barber Canal lrrig. .. 7.46 29 16 41 Keith . May 30 !893 754

Clear Creek .... . The Central Nebraska Public Power and Irrigation District, Hastings

Clear Creek .... . Clark and Bairn, Lewellen Clear Creek .... . The Central Nebraska Public Power

and Irrigation District, Hastings Clear Creek .... . Morrison R. Scripter, Jr., et al.,

Lewellen +Clear Creek .... . Laura Houser, Columbus Clear Creek .... Howard M. Williams, Fremont Clear Creek .... Ida M. Lohr, Columbus Clear Creek .... Raquel H. Newman, Omaha Clear Creek, Trib. t Philip Kaczor, Osceola Clear Creek, Walter W. Berek, Osceola

Ravine, Trib. to

Coed Creek .... Elmer S. Slafter, Scofubluff

Cold Water Cr. ... Lisco lrrig. District, Lisco

Coon Creek .... Wesley F. Hansen, North Platte Coon Creek .... Wesley F. Hansen, North Platte

Cottonwood Cr. · . !Mrs. Kitty Martin, North Platte

Crescent Lake, JLake Water Carrying Company, et al. Lewellen

Crescent Lake p...ake Water Carrying Company, Reservoir Lewellen

Stor-only. Land does not ha