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In determining the amount of unappropriated water available, the director of the Department of Water Resources must account for water which may be diverted by two types of senior appropriators whose rights are not reflected in the historic flow records: pending senior applications and approved but non-constructed senior applications.
The Central Platte Natural Resources District (CPNRD) filed six applications for permits to appropriate water for instream flows in the river. CPNRD essentially sought to reserve water rights in order to maintain food sources and habitats for five bird species. The State of Wyoming objected to the applications because it owned land bordering the river in Nebraska and it intended to use that land as a whooping crane migration habitat. The director of the Department of Water Resources considered two senior applications relevant to CPNRD's instream flow applications: the Landmark Project and the Prairie Bend Project. The director denied the application for the Landmark Project but concluded, on the basis of the testimony of CPNRD’s manager, that CPNRD would operate Prairie Bend in such a manner as to first honor its own instream flow permits. Relying on Bishop's testimony, the director found that the Prairie Bend Project did not necessitate any adjustments to the historic flow records. On appeal by the State, the appellate court affirmed. Hence, the current petition.
Did the director properly rely on the testimony of CPNRD’s manager in concluding that the Prairie Bend Project did not necessitate any adjustments to the historic flow records?
On appeal, the court reversed the decision in part and remanded the case for further proceedings so that the director could consider the possible effect that the Prairie Bend Project would have on CPNRD's instream flow applications. The court affirmed the decision in all other respects. In so ruling, the court determined that the record did not support the director's conclusion that the Prairie Bend project would divert water as if it were junior to, not senior to, the instream flows. The court concluded that the director's reliance on the testimony of CPNRD's manager that purported to waive Prairie Bend's appropriation right to the extent necessary to satisfy the requirements of the instream flow was misplaced because the manager had no power to bind CPNRD to such a waiver.