Proposed changes to the UENRD Rules and Regulations
to implement the
Groundwater Management and Protection Act
(AS Proposed) RULE 23
a. Ground water users intending to withdraw and physically transfer ground water, transfer certified irrigated acres, transfer the type of use, or add a type of use of ground water within the Management Area shall, before making any such transfer, apply for and be approved for the transfer by the Board. The Board will review any requests for transfers monthly at a regular Board meeting.
i. The withdrawal and transfer of ground water for domestic purposes that is subject to Neb. Rev. Stat. § 46-691.01 will not be subject to Rule 23.
ii. The withdrawal and transfer of ground water within the District solely for the purpose of providing water to range livestock will not be subject to Rule 23
iii. Permanent or temporary transfers may occur only if the following conditions are met:
1. All transfers of ground water or use must occur within the sub-district where the ground water was originally withdrawn;
2. All transfers of certified irrigated acres must occur within the sub-district where the acres were originally certified;
3. Transfers may not occur in any subdistrict determined by the Board of Directors to be undergoing significant ground water declines;
4. Transfers may not occur in any area that the Board has determined to have ground water quality issues; and
5. Ground water use or certified irrigated acres can not be transferred to a section designated with a higher stream depletion factor as evidenced by data provided to the District through the Elkhorn-Loup Modeling project or other updated model.
6.
b. Agricultural Transfers: After the effective date of these rules, an agricultural user intending to withdraw and physically transfer ground water off of the overlying land which he or she controls or transfer the certified irrigated acres shall, before making such transfer, apply for and be subject for Board approval for the transfer.
i. Agricultural transfers shall not exceed the historic consumptive use and the certified irrigated acres.
ii. Agricultural transfers exceeding the historic consumptive use and the certified irrigated acres will require a variance from the District along with a specified offset for the increased consumptive use portion of the transfer.
iii. Transfers to the adjacent section or within the same section are not subject to Rule 23.a.iii. except the following;
1. Transfers may not occur in any subdistrict determined by the Board of Directors to be undergoing significant ground water declines;
2. Transfers may not occur in any area that the Board has determined to have ground water quality issues; and
3. ground water use or acres will not be transferred to a section designated with a higher stream depletion factor as evidenced by data provided to the District through the Elkhorn-Loup Modeling project or other updated model.
iv. The permanent transfer of certified irrigated acres may be accomplished by either decommissioning the well or modifying it into a well pumping fifty (50) gallons per minute or less.
1. If decommissioning the well filing a notice of abandonment form with the Department or if modifying a well filing a modification form with the Department; and
2. The person transferring the acres must decertify the irrigated acres with the District, and the person to whom the acres are to be transferred must certify the acres with the District.
v. Transfers of certified irrigated acres off of land that is also served by surface water will not be permitted unless the surface water appropriation is relinquished for that parcel of land or an offset is provided to the District for the new acres to be irrigated.
c. Transfers of Type of Use Any person who withdraws ground water from a well located within the District and transfers the type of use of that water (e.g. irrigation to industrial) or adds a type of use of ground water to the well (e.g. adds an industrial use to an existing irrigation well), shall apply for a transfer permit on forms provided by the District before beginning any such transfer..
i. No change in the type of ground water use shall be approved unless such change results in no increase in the historical consumptive use of the ground water to be transferred or an offset is provided for any increase in historical consumptive use.
ii. No transfer will be approved if the water use moves to another section with a higher stream depletion factor as determined by the Elkhorn-Loup Modeling Project or other updated model.
iii. No person shall use a water well for purposes other than its registered purpose or until the water well registration has been changed to the intended new use or the additional use has been added to the registration.
1. In the case of a replacement well, a person may modify and equip the original water well to be used for range livestock, monitoring, observation, or any other non-consumptive or de minimis use approved by the District.
2. The change to a new use or the addition of a use shall be made by filing a water well registration modification with the Department and the change must be in conformance with Neb. Rev. Stat. §§ 46-609(1) and 46-651.
d. Municipal Transfer Permits The District shall approve, without the filing of a District transfer permit application, the withdrawal and transport of ground water when a public water supplier providing water for municipal purposes, so long as that water supplier submits a notification of application to the District. If a public water supplier files an application for a permit from the Department under the Municipal and Rural Domestic Ground Water Transfers Permit Act, then the permit applicant shall advise the District of its filing.
i.
e. Industrial Transfer Permits
i. Transfers for which permits or approval for transfer have been obtained pursuant to the Industrial Ground Water Regulatory Act are not required to apply for a transfer permit from the District. Commercial and industrial users who are required to file for a permit from the Department under the Industrial Ground Water Regulatory Act shall advise the District of such application.
f. Transfer Out of District
i. Requests for transfer of ground water out of the District pursuant to Neb. Rev. Stat. § 46-613.01 shall require District action to approve or deny the transfer request prior to submission of the required transfer permit application to the Department.
ii. When the Department initiates the consultation with the District regarding a permit application, the District shall respond according to the following provisions:
1. The District shall advise the Department of any of the applicant’s unmet obligations under District rules (e.g., variance not yet applied for or granted).
2. Any formal action taken by the Board adopting any offset determined by the Department or the District to be necessary to maintain compliance with any formal agreement or to mitigate any effects to surrounding ground water users or surface water appropriators for uses other than municipal or industrial/commercial.
3. If the District determines an offset on behalf of the user, the nature of the offset and of the enforcement provisions that will be required.
iii. A water well construction permit shall not be issued until a permit to transfer ground water to an adjoining District has been obtained from the Department and a copy of the permit is on file with the original District.
g. Application for and Approval of Transfers
i. In accordance with Neb. Rev. Stat. § 46-739(k) the District may deny or condition its approval of any transfers to the extent such conditions are necessary to:
1. Ensure the consistency of the transfer with the purpose or purposes for which the management area or sub-district was designated;
2. Prevent adverse effects on other ground water users or on surface water appropriators;
3. Prevent adverse effects on the state’s ability to comply with an interstate compact or decree or to fulfill the provisions of any other formal state contract or agreement; and
4. Otherwise protect the public interest and public welfare.
ii. In making its decision regarding a transfer application, the Board may consider relevant information, including but not limited to:
1. Information obtained from studies within the sub-district;
2. Whether the proposed use is a beneficial use of ground water;
3. Alternative sources of surface water or ground water available to the applicant for the proposed withdrawal, transport, and use;
4. Any negative effect of the proposed withdrawal, transfer and use on ground water or surface water supplies needed to meet reasonable future demands for water within the state;
5. Ground water quality of the area being transferred to;
6. Whether the proposed withdrawal, transfer, and use is consistent with the goals and objectives of the integrated management plan;
7. The trend in the change of ground water levels in the sub-district;
8. Other transfers into the area in proximity to the well proposed to be used;
9. The total usage in proximity to the well proposed to be used; and
10. Other factors that would increase the rate of consumptive use in the area of the well proposed to be used.
iii. An application for a transfer shall include, but not be limited to the following:
1. Names and addresses for each landowner involved in the proposed transfer and the name and address of the operator if different than the landowner;
2. Legal description of the land involved in the proposed transfer along with well registration numbers of all wells proposed to be used;
3. The nature of the proposed use, including whether the transfer is temporary or permanent;
4. The current rate of withdrawal from all wells proposed to be used and the maximum proposed amount of withdrawal from the source well;
5. Identification of any other alternative sources of surface water or ground water available to the applicant for the proposed use and the reasons why use of such alternative source or sources are not being sought;
6. Proof of ownership from the United States Farm Service Agency or county tax assessor for each certified irrigated acre to be involved in the transfer request;
7. An assessment of the effects of the proposed withdrawal, transfer, and use on existing ground water users, on existing surface water appropriators, and on ground water and surface water supplies needed to meet present or reasonable future demands within the State;
8. An assessment of the effects of the proposed withdrawal, transfer, and use on the environment in the vicinity of the proposed withdrawal and proposed use;
9. Any other information the applicant deems relevant to the District’s criteria for approval of the proposed withdrawal, transfer, and use;
10. Signatures from all of the landowners involved;
11. Aerial photograph(s) showing all certified irrigated acres involved in the transfer.
(As Proposed) RULE 24
1. PURPOSES AND AUTHORITY: The purposes of these rules and regulations are, in accord with Neb. Rev. Stat. § 46-714(12) and § 46-707(1), to:
(a)
Allow a limited number of total new ground
water irrigated acres annually;
(b) Maintain the status of “not fully appropriated” under Neb. Rev. Stat. § 46-713; and
(c) Limit the number of new permits so that total new ground water irrigated acres do not exceed 2,500 acres annually. Lands from which certified irrigated acres have been transferred are not eligible for a new certification or re-certification.
(e) After December 31, 2012 for LB483, the Upper Elkhorn NRD will continue the maximum development of 2500 acres annually throughout the Upper Elkhorn NRD or until a change occurs to this Rule or notification is received from the Nebraska Department of Natural Resources stating the basin or portion of the Upper Elkhorn NRD is fully-appropriated.
2. LIMITATION ON EXPANSION OF IRRIGATED ACRES: Effective immediately, there shall be no expansion of groundwater irrigated acres within the Upper Elkhorn NRD unless the development is approved by the Upper Elkhorn NRD in accord with these rules and regulations.
3. ENFORCEMENT: The NRD will enforce this limitation consistent with its authority under the law and its rules and regulations. In addition, a violation of these provisions may be grounds for denying an application to develop new groundwater irrigated acres under the ranking criteria set forth below.
4. WELL PERMITS: If a request for expansion of irrigated acres requires installation of a new ground water well, the respective well permit application will not be deemed complete until authorization is granted by the Upper Elkhorn NRD for the expansion of those irrigated acres.
5. PROCESS FOR APPLICATIONS TO EXPAND IRRIGATED ACRES: The process that allows expansion of groundwater irrigated acres shall be as follows:
(a) The application period to apply for the new groundwater irrigated acres shall be the month of January for 2012. The application period for 2013 and proceeding years will occur during the month of October, starting 2012. Any application received outside of an application period will be returned to the applicant as incomplete.
(b) The application shall be made on forms provided by the district. The Board instructs staff to prepare the relevant forms and submit them to the Board for approval.
(i) The application shall include the most recent aerial photo delineating the new acres being applied and, as applicable, the proposed location of the new well or location of existing well to be used.
(ii) If the acres will be irrigated with an existing well, the application shall include the well registration number. If the acres will be irrigated with a new well, the application shall include the approximate legal description for the new well, well logs and test pump data (if any).
(iii) The application shall be accompanied with a non-refundable filing fee:
(1) Fee for 25 acres or less is $75.00;
(2) Application Fee for over 25 acres is $3.00 per acre;
(3) Applications not approved or no modifications will have to reapply annually with a $75.00 fee.
i. Modifications to an application will be charged at above rates stated in (1) & (2).
(iv) The application shall be signed by the current landowner or power of
attorney.
(v) Application is non-transferable
(vi) Application does not include the Permit Fee to Construct a Water Well.
(vii) Application may be declined if it is incomplete or information is inaccurate.
(c) The applicants will be notified on the status of their applications within 60 days
following the application period.
6. RANKING CRITERIA: The Upper Elkhorn NRD will review the application for expanding groundwater irrigated acres based on discretionary factors, including but not limited to, whether the application would promote the health and welfare of the NRD by contributing to the conservation, protection, development, and sound management of natural resources within this District. The Board will establish ranking criteria to assist with evaluating applications. Factors to be considered in the ranking criteria include but are not limited to: (i) irrigation type; (ii) groundwater quality and quantity levels; (iii) irrigation concentration; (iv) soil classification (i.e., Highly Erodible Lands, or HEL); (v) stream depletion factors; (vi) compliance with Nitrogen Certification Guidelines of the Upper Elkhorn NRD’s Ground Water Management Plan; (vii) compliance with Upper Elkhorn NRD rules and regulations, including compliance with the limitation on expansion of groundwater irrigated acres under these provisions; and (viii) such other factors that assist in determining whether the application would promote the health and welfare of the residents of the NRD.
7. FLOWMETERS REQUIRED: Installation of a flowmeter approved by the Upper Elkhorn NRD staff is required as a condition for any application for expansion of groundwater irrigated acres. Data from flowmeters shall be collected by District staff on an annual basis on or before December 31 of each year. As a condition of approval to expand ground water irrigated acres, District staff shall be granted free access to all lands to read the flowmeter. Data obtained from the flowmeters will assist the District in better understanding water use and aid in future water management activities throughout the District.
8. GRANTED APPLICATIONS: Applications granted under these provisions are deemed unique and special with regard to the specific application, and do not create a precedent for future application or matters pertaining to other lands, whether or not they are similarly situated. Expansion of irrigated acres approved within 60 days following the 2012 January application period, under LB483 will have until October 1, 2012 of the application year to complete well installation, install flowmeter and irrigate acres. Applications approved within 60 days following the October 2012 application period and thereafter will have until September 30 of each application year to complete well installation, install flowmeter and irrigate acres.
9. CANCELLATION OF APPROVED EXPANSION: The Upper Elkhorn NRD may cancel or void an approved expansion application at any time for violation of the NRD’s rules and regulations.