In re Application A-19594, Water Divisions 1-A, 1-B

Summary

The Nebraska Supreme Court affirmed the dismissal of objections to an application seeking to divert excess surface water from the Platte River Basin to the Republican River Basin. The court held that Department of Natural Resources regulations and applicable interbasin-transfer statutes do not confer standing on entities that lack common-law standing. Because the objecting entities did not establish a legally cognizable injury, the court upheld the director’s dismissal for lack of standing.

Holdings

1. Department regulations require an objector to qualify as an interested person and to be recognized by the Department as having standing; the regulations do not confer standing on an entity that lacks common-law standing.
2. An entity challenging an application for a surface-water appropriation that also requests an interbasin transfer must satisfy common-law standing requirements.
3. The objecting entities failed to establish standing because their alleged injuries were generalized, speculative, based on third-party rights, or dependent on contingencies rather than concrete and particularized injuries in fact.
4. The objectors could not establish standing by asserting public-interest standing after failing to satisfy common-law standing requirements.
5. The permits were competent and relevant evidence for the limited purpose for which the director relied on them in evaluating whether the objectors had alleged a legally cognizable injury.

Questions Presented

1. Whether Department regulations or the interbasin-transfer statutes confer standing on an objector who lacks common-law standing.
2. Whether an entity challenging an application for a surface-water appropriation involving an interbasin transfer must satisfy common-law standing requirements.
3. Whether the objecting entities alleged a concrete, particularized, actual or imminent injury fairly traceable to the proposed diversion and likely to be redressed by a favorable decision.
4. Whether the objectors could invoke public-interest standing despite failing to establish common-law standing.
5. Whether the permits relied upon by the director constituted competent and relevant evidence supporting dismissal for lack of standing.

Disposition

affirmed