Current through September 17, 2024
The following definitions shall apply as used throughout chapter 7 of
these rules.
001.01. Adjudicative and show cause proceedings
include, but are not limited to, the following:
001.01(A). Actions taken by
the Department under the provisions of Neb. Rev. Stat. §§ 46-229 to 46-229.06 to modify or cancel a
surface water appropriation;
001.01(B). Administration of surface
water appropriator taking more water than can be beneficially used, Neb. Rev. Stat. § 46-231;
001.01(C). Cases before the Department to determine whether applications or
petitions should be approved;
001.01(D). Administration of water
appropriations of an irrigation ditch or canal because owners do not maintain the embankments so as to
prevent waste as described under Neb. Rev. Stat. § 46-265;
001.01(E). Actions taken by the Department to modify or revoke a Municipal
and Rural Domestic Ground Water Transfers Permit under the provisions of Neb. Rev. Stat. §
46-644;
001.01(F). Cases before the Department under the
provisions of Neb. Rev. Stat. § 46-684(1) to revoke or modify an Industrial Ground Water Transfer
Permit;
001.01(G). Actions taken by the Department under the
provisions of Neb. Rev. Stat. § 46 -684(2) to determine whether violations have occurred relative to an
Industrial Ground Water Transfer Permit;
001.01(H). Actions taken
by the Department to revoke an approval to operate a dam under the provisions of Neb. Rev. Stat. §
46-1660(3);
001.01(I). Actions taken by the Department under the
provisions of Neb. Rev. Stat. §§ 46-1650 and 46-1667(1) to determine whether a person is violating
the Safety of Dams and Reservoirs Act;
001.01(J). Actions taken
by the Department under the provisions of Neb. Rev. Stat. §§ 46-1650 and 46-1667(2) relative to the
construction, reconstruction, enlargement, alteration, breaching, removal, or abandonment of a dam without
having first obtained the required approval;
001.01(K). Actions
taken by the Department under the provisions of Neb. Rev. Stat. § 46-1670(3) requiring a person to file
an application for approval of an existing dam; and,
001.01(L).
Actions taken by the Department under the provisions of Neb. Rev. Stat. § 46-1670(6) to stop impoundment
when the Department finds an existing dam is not safe to impound.
001.02. Application includes, but is not limited to, the following:
001.02(A). Application for Recognition of Incidental Underground Water
Storage under the provision of Neb. Rev. Stat. § 46-226.01;
001.02(B). Application for a Permit to Appropriate Water under the
provision of Neb. Rev. Stat. § 46-233 or § 46-259;
001.02(C). Application for a Permit to Appropriate Water for Induced Ground
Water Recharge under the provisions of Neb. Rev. Stat. § 46-233;
001.02(D). Application for a Permit for Intentional Underground Water
Storage and Recovery under the provisions of Neb. Rev. Stat. § 46-233, § 46-240, § 46-241,
§ 46-242, or § 46-297;
001.02(E). Application for a
Permit to Appropriate Water for Use in Another State under the provisions of Neb. Rev. Stat. §
46-233.01;
001.02(F). Application to Transfer the Priority Dates
Among Water Wells Under an Induced Groundwater Recharge Permit under the provisions of Neb. Rev. Stat. §
46-235.04;
001.02(G). Application for an Appropriation from
Natural Lakes and Reservoirs under the provisions of Neb. Rev. Stat. § 46-240;
001.02(H). Application for Additional Water under the provisions of Neb.
Rev. Stat. § 46-240.01;
001.02(I). Application for a Permit
to Impound under the provisions of Neb. Rev. Stat. § 46-241;
001.02(J). Application for a Permit to Appropriate Stored Water under the
provisions of Neb. Rev. Stat. § 46-242;
001.02(K).
Application to Conduct Water in a Channel of a Stream under the provisions of Neb. Rev. Stat. §
46-252;
001.02(L). Application for Approval of Plans and
Specifications under the provisions of Neb. Rev. Stat. § 46-258;
001.02(M). Application for an Interbasin Transfer under the provisions of
Neb. Rev. Stat. § 46-289;
001.02(N). Application for an
Intrabasin Transfer under the provisions of Neb. Rev. Stat. § 46-290;
001.02(O). Application for Renewal of a Temporary Transfer under the
provisions of Neb. Rev. Stat. § 46-294.02;
001.02(P).
Application to Levy Fees Relative to Intentional Underground Water Storage under the provisions of Neb. Rev.
Stat.
§ 46-2,101;
001.02(Q). Application
for a Permit to Appropriate Water for Instream Flows under the provisions of Neb. Rev. Stat. §
46-2,110;
001.02(R). Application for Transfer and Map under the
provisions of Neb. Rev. Stat. § 46-2,122;
001.02(S).
Application to Drain a Natural Lake under the provisions of Neb. Rev. Stat. §§ 46-801 to
46-807;
001.02(T). Application for a Special Permit to Waive
Groundwater Well Spacing under the provisions of Neb. Rev. Stat. § 46-610 or § 46-653;
001.02(U). Application for a Permit to Transfer Groundwater to Another
State under the provisions of Neb. Rev. Stat. § 46-613.01;
001.02(V). Application for a Permit to Pump From a Groundwater Well Located
Within 50 Feet of a Channel of a Stream for Purposes of Irrigation under the provisions of Neb. Rev. Stat.
§ 46-637;
001.02(W). Application for a Municipal and Rural
Domestic Groundwater Transfer Permit under the provisions of Neb. Rev. Stat. § 46-639;
001.02(X). Application for a Permit to a Public Water Supplier to Store
Excess, Unused and Unappropriated Water for Recharging Groundwater Reservoirs under the provisions of Neb.
Rev. Stat. § 46-645;
001.02(Y). Application for an
Industrial Groundwater Transfer Permit under the provisions of Neb. Rev. Stat. § 46-678;
001.02(Z). Application to Amend an Industrial Groundwater Transfer Permit
under the provisions of Neb. Rev. Stat. § 46-683.01;
001.02(AA). Application for a Permit to Develop Geothermal Resources under
the provisions of Neb. Rev. Stat. § 66-1105;
001.02(BB).
Application for Approval of Plans for Dams under the provisions of Neb. Rev. Stat. § 46-1654.
001.03. Complaint means an initial filing in the Department
whereby a person sets out allegations of violation of statutes under the authorities of the Department and
describes the relief requested. Complaints include, but are not limited to, allegations against the
Department regarding violations of Neb. Rev. Stat. chapter 456, Article 7. See also Neb. Admin. Code
454 chapter 10, Public Hearings Regarding Integrated Water Management, Rule 002.04.
001.04. Contested case means a formal proceeding before the Department in
which the legal rights, duties, or privileges of a specific party is required by law or constitutional right
to be determined after a Department hearing. Hearings held under the provisions of Nebraska Statutes chapter
46, Article 2; chapter 46, Article 16; chapter 46, Article 6 and Neb. Rev. Stat. § 61-206 are all
contested case hearings. Public hearings required to be held by the Department under all provisions of the
Nebraska Ground Water Management Act (chapter 46, Article 7) are not contested case
hearings.
001.05. Ex parte communication means an oral or written
communication which is not on the record in a contested case with respect to which reasonable notice to all
parties was not given. Ex parte communication shall not include:
001.05(A).
Communications which do not pertain to the merits of a contested case;
001.05(B). Communications required for the disposition of ex parte matters
as authorized by law;
001.05(C). Communications in a rulemaking
proceeding; and
001.05(D). Communications to which all parties
have given consent.
001.06. Hearing Officer means the
person or persons designated by the Director to conduct a hearing, contested case, or other proceeding
pursuant to the Administrative Procedure Act, whether designated as the presiding officer,
administrative law judge, or some other title designation.
001.07. Interested Person means a person who or an entity which has a
specific legally protectable interest in the applicability of a statute, rule, or order, as distinguished
from a general interest such as may be the concern of the public at large. An interested person is one who is
or could be adversely affected in a legally cognizable way by the outcome of a proceeding.
001.08. Objection is a statement or statements presenting arguments in
opposition to an action. Any objections filed in response to a notice given may or may not, at the discretion
of the objector, include a request for hearing. If a request for hearing is filed with the objection, the
objector will be responsible for paying a portion of the costs of the hearing. If an objection is filed
without a request for hearing, and if a hearing will be held, then the objector will be given an opportunity
to become a party to the hearing, and if the request is granted, then the objector will be responsible for
paying a portion of the costs of the hearing. Objections and any accompanying requests for hearing shall be
filed as described in:
001.08(A). Objection filed under the provisions of
Neb. Rev. Stat. § 46-233(5);
001.08(B). Objection filed in
response to a notice of application or petition.
001.08(C).
Objection and request for hearing filed under the provisions of Neb. Rev. Stat. § 46-235.04;
001.08(D). Objection and request for hearing filed under the provisions of
Neb. Rev. Stat. § 46-291(4);
001.08(E). Objection and
request for hearing filed under the provisions of Neb. Rev. Stat. § 46-2,1114;
001.08(F). Objection and request for hearing filed under the provisions of
Neb. Rev. Stat. § 46-640;
001.08(G). Objection and request
for hearing filed under the provisions of Neb. Rev. Stat. § 46-680.
001.09. Party means an interested person who is recognized by the
Department as having standing in a contested case. A party is classified as:
001.09(A). Applicant: A person filing an application;
001.09(B). Objector: A person filing an objection to the granting of an
application or petition;
001.09(C). Complainant: A person filing
a complaint;
001.09(D). Defendant: A person against whom a
complaint is filed;
001.09(E). Petitioner: Any person filing a
petition or seeking relief other than by complaint or application;
001.09(F). Respondent: A person designated in an investigative,
adjudicative, or show cause proceeding;
001.09(G). Intervenor: A
person permitted to intervene; and
001.09(H). Department Staff:
Persons who appear in a proceeding by virtue of their Department employment.
001.10. Petition includes, but is not limited to, an application or a
request for Department action filed as required under:
001.10(A). Petition
for Extension of Time filed under the provisions of Neb. Rev. Stat. § 46-238;
001.10(B). Petition for Changing the point of diversion or changing the
line of any flume, ditch, or aqueduct, or changing a storage site under the provisions of Neb. Rev. Stat.
§ 46-250;
001.10(C). Petition for hearing under the
provisions of Neb. Rev. Stat. § 46-686.01;
001.10(D).
Petition for Leave to File or Consider an Application filed under the provisions of Department rules 457 Neb.
Admin. Code chapter 23; and
001.10(E). Petition to reevaluate a
basin, subbasin, or reach under the provisions of Neb. Rev. Stat. § 46-713(2)(a).
001.11. Request for a hearing includes, but is not limited to:
001.11(A). Any request for hearing filed with any objection filed in
response to a notice of application or petition;
001.11(B).
Request for hearing filed with objection filed under the provisions of Neb. Rev. Stat. §
46-233(5);
001.11(C). Request for a hearing filed by an applicant
aggrieved by the decision made under the provisions of Neb. Rev. Stat. § 46-235 in those instances where
a hearing was not held before the final decision;
001.11(D).
Request for hearing filed with objection under the provisions of Neb. Rev. Stat. § 46-235.04;
001.11(E). Requests for hearing filed under the provisions of Neb. Rev.
Stat. § 46-238(2);
001.11(F). Requests for hearing filed
with objections filed under the provisions of Neb. Rev. Stat. § 46-291(4);
001.11(G). Requests for hearing filed with objections under the provisions
of Neb. Rev. Stat. § 46-2,114;
001.11(H). Requests for
hearing filed with objection under the provisions of Neb. Rev. Stat. § 46-640;
001.11(I). Requests for hearing filed with objection under the provisions
of Neb. Rev. Stat. § 46-680;
001.11(J). Requests for hearing
made under the provisions of Neb. Rev. Stat. § 46-684;
001.11(K). Requests for hearing made under the provisions of Neb. Rev.
Stat.
§ 46-691(2); and
001.11(L). Requests
for hearing made at the request of any party to the proceeding under the provisions of Neb. Rev.
Stat.
§ 61-206 if a final decision is made without a hearing.
001.12. Response to a Department order includes, but is not limited to:
001.12(A). Notice of contests under the provisions of Neb. Rev.
Stat.
§ 46-229.02; and
001.12(B). Response
filed under the provisions of Neb. Rev. Stat.
§ 46-1667.
