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Under the Nebraska Ground Water Management and

Protection Act, the DNR is required to conduct an annual forecast

to determine whether the State’s projected water supply

from the Basin and projected consumption is sufficient to comply

with the Compact.1 The DNR conducted such a forecast

on January 1, 2013, and again on January 1, 2014. The DNR’s

forecasts for both years indicated that the State’s consumption

would exceed its allocation under the Compact. Therefore, in

each of those years, the DNR issued an order referred to as a

“Compact Call” in the Basin and issued closing notices on all

natural flow and storage permits.

The FCID owns water rights for surface water natural flow

within the Basin for irrigation purposes. The appropriators

allege that as a result of the DNR’s orders to close the natural

waterflow and preclude the release of storage water, “‘the

entirety of FCID’s surface water appropriation bypassed [the

appropriators] and was diverted for the public use of satisfying

Nebraska’s obligation to the state of Kansas under

the Compact.’”



The appropriators brought these actions on behalf of themselves

and a class of water users consisting of “[a]ll FCID

water users in 2013 [and 2014] who did not receive their full

water allocation supply due to the acts, omissions, and takings

of [the State and the DNR] and who suffered damages due

to diminished or eliminated crop production yields of growing

crops.” In their complaints, the appropriators alleged that

each holds prior appropriation rights to surface water and that

in each crop year, there was available surface water within

Nebraska’s allocated share of the Basin’s waters which was not

needed to meet Nebraska’s obligations under the Compact. The

appropriators further alleged that the available water was taken

from the appropriators and given to Kansas, in excess of the

requirements of the Compact, and constituted inverse condemnation

of their water rights.



1. Basin “Interstate Compact”

Nebraska, the states of Kansas and Colorado, and the

United States of America are parties to the Compact. The

FCID and all class members own surface water appropriations

allowing diversion of surface water from the Basin for

beneficial use. The Basin has been the subject of the Compact

since 1943.

In Kansas v. Nebraska,2 the U.S. Supreme Court described

the river:

The Republican River originates in Colorado; crosses

the northwestern corner of Kansas into Nebraska; flows

through much of southwestern Nebraska; and finally cuts

back into northern Kansas. Along with its many tributaries,

the river drains a 24,900-square-mile watershed,

called the Republican River Basin.

The U.S. Supreme Court described the Compact as

apportion[ing] among the three States the “virgin water

supply originating in” . . . the . . . Basin. . . . “Virgin

water supply,” as used in the Compact, means “the water

supply within the Basin,” in both the River and its tributaries,

“undepleted by the activities of man.” Compact

Art. II. The Compact gives each State a set share of

that supply—roughly, 49% to Nebraska, 40% to Kansas,

and 11% to Colorado—for any “beneficial consumptive

use.” Id., Art. IV; see Art. II (defining that term to mean

“that use by which the water supply of the Basin is consumed

through the activities of man”). In addition, the

Compact charges the chief water official of each State

with responsibility to jointly administer the agreement.

See id., Art. IX. Pursuant to that provision, the States

created the Republican River Compact Administration

(RRCA). The RRCA’s chief task is to calculate the

Basin’s annual virgin water supply by measuring stream

flow throughout the area, and to determine (retrospectively)

whether each State’s use of that water has stayed

within its allocation.3

In 2002, the Compact was modified before the U.S. Supreme

Court via a “Final Settlement Stipulation” (FSS) approved

by the Court.4 Under the FSS, the parties agreed to use

the Compact’s administration accounting procedures and the

ground water model to determine Nebraska’s compliance with

the Compact. Based on those accounting procedures, Nebraska

must use 5-year averaging in normal allocation years and

2-year averaging during “water short” years. Nebraska is obligated

by the Compact to limit its consumption of the Basin’s

waters to its annual allotment.

After the FSS was adopted, the Nebraska Legislature enacted

the Nebraska Ground Water Management and Protection Act

(hereinafter Act).5 Under the Act, the DNR and the Basin’s

three natural resources districts “shall jointly develop an

integrated

management plan.”6 And, “[i]n developing an integrated

management plan, the effects of existing and potential

new water uses on existing surface water appropriators and

ground water users shall be considered.”7 The Act also requires

that the “ground water and surface water controls proposed for

adoption in the integrated management plan . . . (b) be sufficient

to ensure that the state will remain in compliance with

applicable state and federal laws and with any applicable interstate

water compact or decree . . . .”8

The Act further requires that under the monitoring plans

imposed by the Act, the DNR must consult with the natural

resources districts to ensure compliance with the Compact. In

addition, the DNR shall

forecast on an annual basis the maximum amount of water

that may be available from streamflow for beneficial use

in the short term and long term in order to comply with

the requirement of subdivision (4)(b) of this section [the

Compact]. This forecast shall be made by January 1,

2008, and each January 1 thereafter.9

2. Relevant Sections of

Nebraska Constitution

The appropriators rely on the following sections of the

Nebraska Constitution.

Neb. Const. art. I, § 21: “The property of no person shall

be taken or damaged for public use without just compensation

therefor.”

Neb. Const. art. XV, § 4: “The necessity of water for domestic

use and for irrigation purposes in the State of Nebraska is

hereby declared to be a natural want.”

6 § 46-715(1)(a).

7 § 46-715(2).

8 § 46-715(4).

9 § 46-715(6).



Neb. Const. art. XV, § 5: “The use of the water of every

natural stream within the State of Nebraska is hereby dedicated

to the people of the state for beneficial purposes, subject

to the provisions of the following section.”

Neb. Const. art. XV, § 6:

The right to divert unappropriated waters of every

natural stream for beneficial use shall never be denied

except when such denial is demanded by the public

interest. Priority of appropriation shall give the better

right as between those using the water for the same

purpose, but when the waters of any natural stream are

not sufficient for the use of all those desiring to use the

same, those using the water for domestic purposes shall

have preference over those claiming it for any other purpose,

and those using the water for agricultural purposes

shall have the preference over those using the same for

manufacturing purposes. Provided, no inferior right to

the use of the waters of this state shall be acquired by a

superior right without just compensation therefor to the

inferior user.



3. Procedural Background

(a) District Court Actions

The appropriators filed their initial action with respect to

the 2013 crop year in July 2014. The operative complaint as

to that crop year was filed on April 10, 2015. On October 30,

2015, the appropriators filed a complaint with respect to the

2014 crop year.

Other than the crop years at issue, for our purposes, both

complaints were identical and alleged that (1) water was taken

from the appropriators which was within Nebraska’s allocation

under the Compact, subject to capture in the Basin’s streams,

not required or used for compliance with the Compact, and not

taken for consumptive beneficial use for any superior or prior

legal use and (2) water was taken from the appropriators as a

result of the DNR’s failure to curtail excessive ground water

pumping which has depleted the Basin’s streams by preventing

water from reaching them. The appropriators claimed they suffered

a loss of crop production as a result of the DNR’s actions

and omissions.

On April 30, 2015, the State and the DNR filed a motion

to dismiss the appropriators’ amended complaint regarding the

2013 crop year. On September 28, the court entered an order

denying in part and in part sustaining the State and the DNR’s

motion to dismiss. On October 28, the State and the DNR filed

a motion for clarification and/or a motion for reconsideration

and a motion to extend the time to answer.

(b) May 19, 2016, Order

of Dismissal



A hearing on various outstanding motions was held January

14, 2016. On May 19, the district court issued its consolidated

order. As relevant, that order first vacated that portion

of its September 28, 2015, order denying the State and the

DNR’s motion to dismiss, then granted the State and the

DNR’s motions to dismiss both of the appropriators’ causes

of action.



III. ASSIGNMENTS OF ERROR

The appropriators assign, restated and consolidated, that

the trial court erred in holding that (1) the DNR’s streamflow

administration under the Compact was not a taking and that

thus, the regulatory action did not interfere with a legitimate

property interest under Neb. Const. art. I, § 21, and art. XV,

§ 6, and (2) the DNR did not have a duty to regulate ground

water in these cases.



IV. STANDARD OF REVIEW



[1,2] A district court’s grant of a motion to dismiss is

reviewed de novo.10 When reviewing an order dismissing a

complaint, the appellate court accepts as true all facts which

are well pled and the proper and reasonable inferences of law

and fact which may be drawn therefrom, but not the plaintiff’s

conclusion.11



V. ANALYSIS

1. Whether DNR’s Streamflow Administration

Resulted in Taking Under Neb. Const.

art. I, § 21, and art. XV, § 6

The appropriators argue that their property rights are superior

to the Compact and that the State’s regulation amounts

to a permanent physical invasion. We reject both of these

assertions.

(a) Nature of Appropriators’

Property Interests

We first address the appropriators’ allegation that their property

rights are superior to the Compact. During oral argument,

the appropriators maintained that they hold prior appropriation

rights to use the water and that those rights “do not refer to

any Compact” and “are not conditioned on changes or compliance

in a Compact that didn’t exist” at the time the water use

permits were issued. We conclude that the appropriators’ rights

to use the water are subject to the Compact and are thus not a

compensable property interest when the right to use is limited

to ensure Nebraska’s compliance under the Compact.

The appropriators’ arguments on appeal are based on the

assumption that the appropriators have compensable property

rights. But because we conclude that the appropriators do not

have such rights, their takings argument must fail.

[3-7] A takings analysis begins with an examination of the

nature of the owner’s property interest.12 No compensation is

owed in a takings claim if the State’s affirmative decree simply

makes explicit what already inheres in the title itself, in the

restrictions that background principles of the State’s law of

property and nuisance already place upon land ownership.13

“Rights of irrigation in the state exist only as they have been

created and defined by the law and are therefore limited in

their scope by the language of their creation.”14

The adjudication of the water right gave to the [irrigation

district] and its predecessors in interest a vested right to

the use of the waters appropriated, subject to the law at

the time the vested interest was acquired and such reasonable

regulations subsequently adopted by virtue of the

police power of the state.15

Additionally,

[t]he law gives to every citizen of the state the right . . .

to appropriate for beneficial purposes the unappropriated

public waters of the state, and it protects him in the

enjoyment of this appropriation after his right is once

vested. He takes this right, however, subject to the rights

of all prior and subsequent appropriators, and he cannot

infringe upon their rights and privileges.16

Hinderlider v. La Plata Co.17 is instructive. In that case, the

plaintiff owned a ditch by which it diverted water from the

La Plata River in Colorado for irrigation, but the flow was

altered by the state to comply with an interstate compact. The

State of Colorado shut the headgate of the plaintiff’s ditch

pursuant to the requirements of the La Plata River Compact

entered into by Colorado and New Mexico. The compact

provided that each state should receive a definite share of

water, but that when the flow of the river was low, the “use of

the waters may be so rotated between the two States.”18

The Hinderlider Court held that the plaintiff’s “right adjudicated

by the decree” for water apportionment from the river

was a “property right.”19 But the Court held that “the Colorado

decree could not confer . . . rights in excess of Colorado’s

share of the water of the stream; and its share was only an

equitable portion thereof.”20 Thus, “the apportionment made by

the [c]ompact cannot have taken . . . any vested right.”21 The

Court further determined that “the apportionment is binding

upon the citizens of each State and all water claimants, even

where the State had granted the water rights before it entered

into the compact.”22

Also instructive is Badgley v. City of New York.23 There, the

Second Circuit relied on Hinderlider and held that a state’s

administration of water in order to comply with a water compact

precluded damage claims for diminished waterflow. The

court reasoned that awarding damages to riparian right owners

was inappropriate because such “would hobble or possibly even

destroy the effect of Supreme Court decrees or Congressionally

approved interstate water compacts by subjecting those who

rely upon the provisions of the decrees or interstate compacts

to unreasonable damage burdens.”24 Moreover, the result would

be “inherently inconsistent with the supremacy of the Supreme

Court’s decree of equitable apportionment.”25

18 Id., 304 U.S. at 97.

19 Id., 304 U.S. at 102.

20 Id.

21 Id., 304 U.S. at 108.

22 Id., 304 U.S. at 106.

23 Badgley v. City of New York, 606 F.2d 358 (2d Cir. 1979).

24 Id. at 366.

25 Id.



This court has addressed similar situations in regard to

ground water. In Spear T Ranch v. Knaub,26 this court addressed

a dispute over the depletion of stream water due to ground

water pumping. We held that “[a] right to appropriate surface

water . . . is not an ownership of property. Instead, the water

is viewed as a public want and the appropriation is a right

to use the water.”27 The court held that that the plaintiff had

no action in conversion or trespass, “‘since the plaintiff has

no private property interest in groundwater, at least not prior

to capture.’”28

In Bamford v. Upper Republican Nat. Resources Dist.,29 this

court held that a natural resources district’s cease and desist

order preventing landowners and tenant farmers from withdrawing

ground water from their wells until issuance of additional

allocation did not amount to a taking of their land. The

court reasoned that

ground water, as defined in § 46-657, is owned by the

public, and the only right held by an overlying landowner

is in the use of the ground water. [Citation omitted.]

Furthermore, placing limitations upon withdrawals

of ground water in times of shortage is a proper exercise

of the State’s police power.30

In Keating v. Nebraska Public Power Dist.,31 the Eighth

Circuit applied the legal reasoning set forth in Spear T Ranch

and found that the appellants’ permits to use surface water in

the Niobrara Watershed created property interests that were

limited by the “rights granted by the permit and is subject to

constraints articulated by the permit.” The court then held that

“when the DNR determines that the watershed no longer has

the capacity to supply all permit holders, appellants no longer

have a legitimate claim of entitlement to use the surface water

and thus do not suffer a deprivation of a property right.”32

The Eighth Circuit reasoned that on the face of the permits,

the holders of permits “‘may be denied the use of water during

times of scarcity.’”33 Furthermore, “[u]nder Nebraska law,

the DNR is charged with administering the prior appropriation

system, which necessarily requires the DNR to determine the

capacity limits of a given stream and to determine what restrictions

must be imposed to enforce the appropriation system.”34

Therefore, since “the issuance of Closing Notices does not

impact the property right bestowed by the permit to use the

surface water when there is sufficient capacity, the appellants

are not deprived of that property right.”35

[8] In the current cases, the DNR determined that 2013

and 2014 constituted a water short period and it decreased

allocation according to its predictions. We reject the appropriators’

argument that the Compact is an inferior use to the

use rights given to the appropriators under their permits. The

U.S. Supreme Court held that the “Compact, having received

Congress’s blessing, counts as federal law.”36 As federal law,

the allocations set forth under the Compact are the supreme

law in Nebraska and the DNR must ensure Nebraska remains

within its allocation under the Compact. Therefore, the appropriators’

right to use water is subject to the superior obligation

of the State to ensure compliance with the Compact.

While Nebraska law treats ground water differently from

stream water, and there is no evidence in the record whether

the permits articulated constraints on their face, Spear T Ranch

is instructive in the current case. This court’s holding in Spear

T Ranch shows the limits to a property right to water appropriation

under Nebraska law. Because of the limitations of a

“use” property right, certain causes of action are not available

for ground water, “‘at least not prior to capture.’”37 Bamford

similarly concerns ground water, but it is applicable in the current

case because it indicates that the State has a right to place

restrictions on water usage during water short periods.

The right to use stream water is a “vested right,” but it is

inherently “subject to the law at the time the vested interest

was acquired and such reasonable regulations subsequently

adopted by virtue of the police power of the state.”38 We

find that the DNR’s decisions to decrease allocations in 2013

and 2014 were affirmative decrees which make explicit what

already inheres in the title itself.39 Based on our reasoning in

Bamford, we hold that under the Compact and the applicable

Nebraska statutes mentioned above, placing “limitations upon

withdrawals” during a year which the DNR predicted would

be a water short year is a “proper exercise of the State’s

police power.”40 In this case, there is no suggestion that the

DNR has exercised this power arbitrarily, capriciously, or

unreasonably.

Under the Act and the FSS set forth in Kansas v. Nebraska,41

the DNR must not administer water in “real time” to ensure

that the percentage allotted to Nebraska is met. Rather, the

DNR is obligated only to ensure that Nebraska “will remain

37 See Spear T. Ranch v. Knaub, supra note 26, 269 Neb. at 185, 691 N.W.2d

at 127.

38 State v. Birdwood Irrigation District, supra note 15, 154 Neb. at 55, 46

N.W.2d at 887.

39 See Lucas v. South Carolina Coastal Council, supra note 12.

40 See Bamford v. Upper Republican Nat. Resources Dist., supra note 29,

245 Neb. at 313, 512 N.W.2d at 652.

in compliance with” the Compact.42 Therefore, we agree with

the district court that the DNR fulfilled its duties under the

Compact and Nebraska statutes, which are within the reasonable

exercise of the State’s police power and are within the

DNR’s jurisdiction over streamflow administration. The DNR

applied the limits under the Compact to the appropriators’ permits,

which was a property interest subject to such reasonable

regulations by the State. Therefore, the appropriators have not

been deprived of a compensable property interest due to the

stream water regulations by the DNR.

(b) Whether DNR’s Regulation Amounts

to Permanent Physical Invasion

The appropriators next argue that the DNR’s regulatory

actions amount to a permanent physical invasion of their property

and that such regulation deprives them of all economically

beneficial use of that property.

We turn first to the appropriators’ contention that the DNR’s

regulatory actions amount to a permanent physical invasion

of their property. The appropriators rely on several cases to

support this contention. One such case is Casitas Mun. Water

Dist. v. U.S.,43 in which the Federal Circuit held that “the

government-

caused diversion” of water away from the plaintiff’s

land in which the government “directly appropriated

[the plaintiff’s] water for its own use” should be analyzed

as a physical taking. The court further held that “[w]here the

government plays an active role and physically appropriates

property, the per se taking analysis applies.”44

The appropriators cite Garey v. Nebraska Dept. of Nat.

Resources45 to support the proposition that the duty to pay

42 § 46-715(4)(b).

43 Casitas Mun. Water Dist. v. U.S., 543 F.3d 1276, 1296 (Fed. Cir. 2008).

44 Id. at 1295.

45 Garey v. Nebraska Dept. of Nat. Resources, 277 Neb. 149, 759 N.W.2d

919 (2009).

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just compensation applies to the right to use and derive profits

from the water at issue here. In addition, they cite Western

Fertilizer v. City of Alliance46 and Dishman v. Nebraska Pub.

Power Dist.47 in support of their argument that they are entitled

to compensation for the deprivation of their rights to use

water for a beneficial purpose as a result of the Compact.

We find these cases to be inapplicable. Casitas does not

address water appropriation subject to an interstate compact.

The holding in Casitas applies when the “government

plays an active role and physically appropriates property.”48

And, as discussed above, in the current case, the DNR did

not appropriate property. Rather, the appropriators’ property

rights to use the water are subject to the DNR’s enforcement

of compliance with the Compact. Therefore, this case, and

the other cases cited by the appropriators on this point, are

not dispositive.

In addition, we note that Garey involves a property tax levy

and the waters of the Basin, but does not address water rights

in terms of a taking. Neither Western Fertilizer nor Dishman

involve damages alleged to have been caused by decreased

water appropriations as a result of a water compact. Therefore,

we find that the DNR’s regulation does not amount to a permanent

physical invasion.

[9] We turn next to the appropriators’ argument that they

have been deprived of “‘“all economically beneficial use” of

[their] property.’”49 We find that the appropriators have not

alleged facts that show they have been deprived of all economically

beneficial use of their property due to the DNR’s actions.

As we held in Bamford, the inability to “withdraw enough

46 Western Fertilizer v. City of Alliance, 244 Neb. 95, 504 N.W.2d 808

(1993).

47 Dishman v. Nebraska Pub. Power Dist., 240 Neb. 452, 482 N.W.2d 580

(1992).

48 Casitas Mun. Water Dist. v. U.S., supra note 43, 543 F.3d at 1295.

49 Brief for appellants at 18.

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water to grow a corn crop” does not amount to being deprived

of all economic use of the appropriators’ land.50

Further, the appropriators have shown there was a decrease

in production during the 2013 and 2014 growing seasons on

the appropriators’ land, but the data indicates there was still

production on the land. It does not appear, as the appropriators

allege, that the farmland has been converted into permanent

“dryland” because of a “total deprivation of beneficial use of

land for irrigation purposes.”51 We therefore reject the appropriators’

contention that the DNR’s regulation of stream water

led to a deprivation of all economically beneficial use of their

property. The appropriators’ first assignment of error is without

merit.

2. Whether Alleged Failure of DNR to

Curtail Ground Water Pumping

Results in Taking

The appropriators argue that because ground water and

surface water are hydraulically connected, the DNR’s failure

to regulate ground water pumping depleted streamflow in the

Basin and amounted to a taking. The appropriators contend

that ground water pumping allows the State to do indirectly

what it is forbidden to do directly. Conversely, the State and

the DNR argue that the DNR has no authority to administer

the Basin’s ground water users for the benefit of surface water

appropriators. The district court agreed that the DNR had no

such authority and that the appropriators had not stated a claim

for inverse condemnation.

[10] This court has consistently held that the DNR has

no authority to regulate ground water. In In re Complaint of

Central Neb. Pub. Power,52 this court held that “the [DNR]

50 Bamford v. Upper Republican Nat. Resources Dist., supra note 29, 245

Neb. at 314, 512 N.W.2d at 652.

51 Brief for appellants at 32.

52 In re Complaint of Central Neb. Pub. Power, supra note 14, 270 Neb. at

117, 699 N.W.2d at 378.

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has no independent authority to regulate ground water users

or administer ground water rights for the benefit of surface

water appropriators.” The court reasoned that “Nebraska has

two separate systems for the distribution of its water resources:

One allocates surface water, and the other allocates ground

water.”53 Furthermore, “[t]he [DNR] regulates surface water

appropriators, see [Neb. Rev. Stat.] § 61-201 et seq. [(Reissue

2009 & Cum. Supp. 2016)], and ground water users are statutorily

regulated by the natural resources districts through the

. . . Act . . . .”54

The Nebraska Constitution does not address the use of

ground water, and historically, the regulation of ground water

has been governed by the rule of reasonable use.55 The court

further stated:

[T]he Legislature has not developed an appropriation

system that addresses direct conflicts between users of

surface water and ground water that is hydrologically

connected. . . . [T]he lack of an integrated system was

reinforced by the fact that different agencies regulate

ground water and surface water.56

In Spear T Ranch v. Nebraska Dept. of Nat. Resources,57

this court addressed whether a surface water appropriator had

a claim against the DNR for failing to protect surface water

appropriators from hydrologically connected ground water

users. Spear T Ranch, Inc. (Spear T), claimed that the DNR

had “negligently failed to protect its appropriations by controlling

the amount of ground water taken from the [creek].”58

This court declined to find that the DNR had a “duty which

53 Id. at 116-17, 699 N.W.2d at 378.

54 Id. at 117, 699 N.W.2d at 378.

55 Id.

56 Id. at 117-18, 699 N.W.2d at 378-79.

57 Spear T Ranch v. Nebraska Dept. of Nat. Resources, 270 Neb. 130, 699

N.W.2d 379 (2005).

58 Id. at 132, 699 N.W.2d at 381.

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would require the [DNR] to resolve conflicts between surface

water appropriators and ground water users.”59 We concluded

that the DNR “has no common-law or statutory duty to

regulate the use of ground water in order to protect Spear T’s

surface water appropriations.”60 Therefore, we held that the

DNR’s “action or inaction did not amount to a taking or damages

as alleged by Spear T. Because Spear T had no property

that was damaged or taken by the [DNR], Spear T could not

assert a cause of action for inverse condemnation.”61

The appropriators cite the Compact which, as the U.S.

Supreme Court explained in Kansas v. Nebraska, requires that

ground water pumping is counted toward water consumption

permitted by the Compact.62 As stated above, the DNR has

jurisdiction over “all matters pertaining to water rights for

irrigation, power, or other useful purposes except as such jurisdiction

is specifically limited by statute.”63 Under § 46-715(b),

the DNR regulation must “be sufficient to ensure that the state

will remain in compliance with applicable state and federal

laws and with any applicable interstate water compact or

decree or other formal state contract or agreement pertaining

to surface water or ground water use or supplies.”64

However, as the State and the DNR argue, § 46-715 indicates

that the DNR has jurisdiction over only surface water,

while the natural resources districts have jurisdiction over

ground water. Section 46-715 provides that the DNR and the

natural resources districts “shall jointly develop an integrated

management plan for such river basin, subbasin, or reach.”65

And, “[i]n developing an integrated management plan, the

59 Id. at 136, 379, 699 N.W.2d at 384.

60 Id. at 138, 699 N.W.2d at 385.

61 Id. at 139, 699 N.W.2d at 386.

62 See Kansas v. Nebraska, supra note 2.

63 Neb. Rev. Stat. § 61-206(1) (Reissue 2009).

64 § 46-715(4)(b).

65 § 46-715(5)(b).

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effects of existing and potential new water uses on existing

surface water appropriators and ground water users shall be

considered.”66 The “integrated management plan shall include

. . . (c) one or more of the ground water controls authorized

for adoption by natural resources districts pursuant to section

46-739; (d) one or more of the surface water controls

authorized for adoption by the department pursuant to section

46-716.”67 Section 46-739 further outlines the authorized controls

and procedures for the DNR to manage ground water.

Based on the terms of the FSS and the U.S. Supreme Court’s

opinion in Kansas v. Nebraska, Nebraska must account for

stream flow depletion due to its ground water pumping.68 The

DNR has jurisdiction over “all matters pertaining to water

rights for irrigation, power, or other useful purposes,” but

“such jurisdiction is specifically limited by statute.”69

[11] We find that § 46-715 limits the DNR’s jurisdiction

to surface water. This court’s opinions in Spear T Ranch

v. Nebraska Dept. of Nat. Resources,70 In re Complaint of

Central Neb. Pub. Power,71 and Spear T Ranch v. Knaub72

provide further support that the DNR does not have jurisdiction

over ground water due to Nebraska’s “two separate systems

for the distribution of its water resources.”73 Therefore,

while the FSS requires that ground water be accounted for,

this does not grant jurisdiction to the DNR over ground

water. Instead, jurisdiction over ground water remains with

the natural resources districts. We note that § 46-715(2)

66 § 46-715(2).

67 Id.

68 See Kansas v. Nebraska, supra note 2.

69 § 61-206(1).

70 Spear T Ranch v. Nebraska Dept. of Nat. Resources, supra note 57.

71 In re Complaint of Central Neb. Pub. Power, supra note 14.

72 Spear T Ranch v. Knaub, supra note 26.

73 See In re Complaint of Central Neb. Pub. Power, supra note 14, 270 Neb.

at 117, 699 N.W.2d at 378.

requires natural resources districts to include “one or more of

the ground water controls . . . pursuant to section 46-739” in

an integrated management plan and to consider “the effects

of existing and potential new water uses on existing surface

water appropriators and ground water users.” Because the

DNR does not have jurisdiction to regulate ground water, it

does not have the power or duty to regulate ground water.

Therefore, we affirm the district court’s conclusion that “an

alleged failure to exercise such nonexistent power or duty

does not give rise to a cause of action for inverse condemnation.”

The appropriators’ second assignment of error is without

merit.