Upper Big Blue NRD v. State

drawn from those facts and that the moving party is entitled
to judgment as a matter of law. Id. Giving Ehlers the benefit
of all reasonable inferences deducible from the evidence, we
conclude no genuine issue of material fact exists whether the
State knew or should have known that l.S. was about to attack
Ehlers and therefore breached its duty to protect Ehlers. The
district court did not err in granting summary judgment, and its
decision is affirmed.
A ffirmed .
U pper big blUe nAtUrAl resoUrces district , A politicAl
sUbdivision of the stAte of nebrAskA, AppellAnt And
cross -Appellee , v . stAte of nebrAskA depArtment of
nAtUrAl resoUrces , An execUtive depArtment And
Agency of the stAte of nebrAskA, And A nn s. bleed ,
in her officiAl cApAcity As Acting director of
the depArtment of nAtUrAl resoUrces ,
Appellees And cross -AppellAnts .
U pper big blUe nAtUrAl resoUrces district , A politicAl
sUbdivision of the stAte of nebrAskA, AppellAnt And
cross -Appellee , v . stAte of nebrAskA depArtment of
nAtUrAl resoUrces , An execUtive depArtment And
Agency of the stAte of nebrAskA, And A nn s. bleed ,
in her officiAl cApAcity As Acting director of the
depArtment of nAtUrAl resoUrces , Appellees And
cross -AppellAnts , And little blUe nAtUrAl
resoUrces district , A politicAl sUbdivision
of the stAte of nebrAskA, Appellee .
756 N.W.2d 145
Filed September 26, 2008. 	Nos. S-07-905, S-07-906.
1. Administrative Law: Statutes: Appeal and Error. To the extent that the mean-
ing and interpretation of statutes and regulations are involved, questions of law are
presented, in connection with which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the court below.
2. Administrative Law: Statutes. The legislature may delegate to an administra-
tive agency the power to make rules and regulations to implement the policy of
a statute.
612 	276 NEBrASkA rEPOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

3. ____: ____. An administrative agency is limited in its rulemaking authority to
powers granted to the agency by the statutes which it is to administer, and it
may not employ its rulemaking power to modify, alter, or enlarge portions of its
enabling statute.
4. Administrative Law: Appeal and Error. Deference is accorded to an agency’s
interpretation of its own regulations unless plainly erroneous or inconsistent.
Appeals from the District Court for lancaster County: J effre
cheUvront, Judge. Affirmed.
Steven G. Seglin and Thomas E. Jeffers, of Crosby Guenzel,
l.l.P., for appellant.
Jon Bruning, Attorney General, David D. Cookson, and Justin
D. lavene for appellees Department of Natural resources and
Ann S. Bleed.
heAvicAn, 	C.J., 	W right, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller -lermAn, JJ.
heAvicAn, C.J.
INTrODUCTION
The primary issue presented by these consolidated appeals
is whether the Nebraska Ground Water Management and
Protection Act (Act),1 provides the Department of Natural
resources (DNr) with the authority to consider a geographic
area located in one river basin but hydrologically connected
to a second basin when determining that the second basin is
fully appropriated.
FACTUAl BACkGrOUND
Under the Act, specifically §§ 46-713 and 46-714, the DNr
has the authority to determine whether any river basin, sub-
basin, or reach is fully appropriated. On December 30, 2005,
the DNr made a preliminary determination that the Upper
Platte river Basin was fully appropriated. In making such a
determination with respect to the Upper Platte river Basin, the
DNr included a small geographic area located in the Big Blue
river Basin.
1 Neb. rev. Stat. §§ 46-701 to 46-754 (reissue 2004, Cum. Supp. 2006 &
Supp. 2007).
UPPEr BIG BlUE NrD v. STATE 	613
Cite as 276 Neb. 612

Pursuant to the requirements of § 46-714(4), the DNr then
held a series of public hearings regarding this preliminary
determination. Following those hearings, the DNr issued an
“Order of Final Determination of river Basins, Subbasins, or
reaches as Fully Appropriated, and Describing hydrologically
Connected Geographic Areas.” In this order, dated April 21,
2006, the DNr again concluded that the Upper Platte river
Basin was fully appropriated, again including in its determi-
nation a small geographic area located in the Big Blue river
Basin. This inclusion was based on a DNr determination that
the surface water from the Upper Platte river Basin was hydro-
logically connected to ground water located in the Big Blue
river Basin. The geographic area located in the Big Blue river
Basin is within the boundaries of the Upper Big Blue Natural
resources District (District).
The District filed suit against the DNr in district court.
Though 	the 	District 	brought 	two 	actions—one 	a 	declara-
tory judgment, the other an action under the Administrative
Procedure Act (APA)2—each made the same allegations: (1)
The DNr exceeded its statutory authority under the Act by
considering a geographic area located in the Big Blue river
Basin when making its determination that the Upper Platte
river Basin was fully appropriated, and (2) the DNr exceeded
its statutory authority by promulgating 457 Neb. Admin. Code,
ch. 24, § 001.02 (2006).
The district court found that the DNr had not exceeded
its authority in promulgating 457 Neb. Admin. Code, ch. 24,
§ 001.02, and also affirmed the actions of the DNr and its
director in including the disputed geographic area in making
its determination that the Upper Platte river Basin was fully
appropriated. The District appealed. We granted bypass of the
Court of Appeals and affirm.
ASSIGNMENT OF ErrOr
On appeal in each of these actions, the District assigns two
assignments of error, which can be consolidated and restated
2 See Neb. rev. Stat. §§ 84-901 to 84-920 (reissue 1999 & Cum.
Supp. 2006).
614 	276 NEBrASkA rEPOrTS

as one: The district court erred in finding that the DNr and its
director did not exceed their statutory authority by promulgat-
ing and interpreting 457 Neb. Admin. Code, ch. 24.
The DNr cross-appeals and argues that the district court
lacked jurisdiction over the District’s APA petition for review
because this is not a “contested case” under the APA.
STANDArD OF rEVIEW
[1] To the extent the meaning and interpretation of statutes
and regulations are involved, questions of law are presented,
in connection with which an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
made by the court below.3
ANAlYSIS
relevAnt stAtUtory provisions
In order to fully understand and analyze the DNr’s argu-
ment, it is necessary to set forth the statutory provisions rele-
vant to the issues presented by this appeal. Section 46-713(1)(a)
requires the DNr to
complete an evaluation of the expected long-term avail-
ability of hydrologically connected water supplies for
both existing and new surface water uses and existing
and new ground water uses in each of the state’s river
basins and shall issue a report that describes the results
of the evaluation. . . . For each river basin, subbasin, or
reach evaluated, the report shall describe (i) the nature
and extent of use of both surface water and ground water
in each river basin, subbasin, or reach, (ii) the geographic
area within which the department preliminarily considers
surface water and ground water to be hydrologically con-
nected and the criteria used for that determination, and
(iii) the extent to which the then-current uses affect avail-
able near-term and long-term water supplies.
Subsection (1)(b) further provides that “[b]ased on the infor-
mation reviewed in the evaluation process, the department shall
3 DLH, Inc. v. Nebraska Liquor Control Comm., 266 Neb. 361, 665 N.W.2d
629 (2003).
UPPEr BIG BlUE NrD v. STATE 	615
Cite as 276 Neb. 612

arrive at a preliminary conclusion for each river basin, sub-
basin, and reach evaluated as to whether such river basin,
subbasin, or reach presently is fully appropriated without the
initiation of additional uses.”
Section 46-713(1)(d) requires in part that the DNr,
[i]n preparing the report [required under subsection
(1)(a),] shall rely on the best scientific data, information,
and methodologies readily available to ensure that the
conclusions and results contained in the report are reli-
able. In its report, the department shall provide sufficient
documentation to allow these data, information, method-
ologies, and conclusions to be independently replicated
and assessed.
In addition to the substantive provisions of the Act, the find-
ings of the legislature were also codified and are instructive:
(1) The management, conservation, and beneficial use
of hydrologically connected ground water and surface
water are essential to the continued economic prosper-
ity and well-being of the state, including the present and
future development of agriculture in the state;
(2) hydrologically connected ground water and sur-
face water may need to be managed differently from
unconnected ground water and surface water in order
to permit equity among water users and to optimize the
beneficial use of interrelated ground water and surface
water supplies;
(3) Natural resources districts already have significant
legal authority to regulate activities which contribute to
declines in ground water levels and to nonpoint source
contamination of ground water and are the preferred enti-
ties to regulate, through ground water management areas,
ground water related activities which are contributing
to or are, in the reasonably foreseeable future, likely to
contribute to conflicts between ground water users and
surface water appropriators or to water supply shortages
in fully appropriated or overappropriated river basins,
subbasins, or reaches;
(4) The legislature recognizes that ground water use
or surface water use in one natural resources district may
616 	276 NEBrASkA rEPOrTS

have adverse affects on water supplies in another district
or in an adjoining state. The legislature intends and
expects that each natural resources district within which
water use is causing external impacts will accept respon-
sibility for ground water management in accordance with
the Nebraska Ground Water Management and Protection
Act in the same manner and to the same extent as if the
impacts were contained within that district;
(5) The Department of Natural resources is respon-
sible for regulation of surface water resources and local
surface water project sponsors are responsible for much
of the structured irrigation utilizing surface water sup-
plies, and these entities should be responsible for regula-
tion of surface water related activities which contribute
to conflicts between ground water users and surface
water appropriators or to water supply shortages in fully
appropriated or overappropriated river basins, subbasins,
or reaches;
(6) All involved natural resources districts, the depart-
ment, and surface water project sponsors should cooperate
and collaborate on the identification and implementation
of management solutions to conflicts between ground
water users and surface water appropriators or to water
supply shortages in fully appropriated or overappropriated
river basins, subbasins, and reaches[.]4
Whether dnr exceeded its AUthority
by enActing dispUted regUlAtion
The District assigns that the DNr exceeded its statutory
authority when promulgating 457 Neb. Admin. Code, ch. 24,
§ 001.02, of the DNr’s rules and regulations.
[2-4] The legislature may delegate to an administrative
agency the power to make rules and regulations to implement
the policy of a statute.5 however, an administrative agency is
limited in its rulemaking authority to powers granted to the
4 § 46-703.
5 Scofield v. State, ante p. 215, 753 N.W.2d 345 (2008); DLH, Inc., supra
note 3.
UPPEr BIG BlUE NrD v. STATE 	617
Cite as 276 Neb. 612

agency by the statutes which it is to administer, and it may
not employ its rulemaking power to modify, alter, or enlarge
portions of its enabling statute.6 Deference is accorded to an
agency’s interpretation of its own regulations unless plainly
erroneous or inconsistent.7
Section 46-748 authorizes the DNr to “adopt and promul-
gate . . . such rules and regulations as are necessary to the dis-
charge of duties assigned to the director or the Department . . .
by the . . . Act.” And the last sentence of § 46-713(1)(d) directs
the DNr, in connection with the preparation of its report
regarding the appropriated status of a river basin, to “specify
by rule and regulation the types of scientific data and other
information that will be considered for making the preliminary
determinations required by this section.”
Under this rulemaking authority, the DNr enacted 457
Neb. Admin. Code, ch. 24. At particular issue in this case is
§ 001.02, which provides:
The 	geographic 	area 	within 	which 	the 	Department
preliminarily considers surface water and ground water
to be hydrologically connected for the purpose prescribed
in Section 46-713(3) is the area within which pumping of
a well for 50 years will deplete the river or a base flow
tributary thereof by at least 10 percent of the amount
pumped in that time.
The parties appear to agree that there is no language in 457
Neb. Admin. Code, ch. 24, § 001.02, which precludes surface
water and ground water that is geographically located in differ-
ent natural resources districts from being hydrologically con-
nected within the meaning of the regulation. Nor do the parties
dispute that applying the regulation resulted in the DNr’s
conclusion that ground water geographically located in the Big
Blue river Basin was hydrologically connected to surface water
in the Upper Platte river Basin. Finally, there is no dispute that
the result of the application of this regulation in this case was
that a geographic area located in the Big Blue river Basin was
included in the DNr’s order finding that the Upper Platte river
6 Id.
7 Belle Terrace v. State, 274 Neb. 612, 742 N.W.2d 237 (2007).
618 	276 NEBrASkA rEPOrTS

Basin was fully appropriated. Such a determination imposes
certain restrictions with respect to the use of surface water and
ground water in the affected geographic area.
In support of its contention that the DNr exceeded its
authority, the District notes there is nothing in the language of
the relevant statutes which permits the DNr to cross natural
resources district boundary lines when making determinations
regarding the appropriated status of river basins, subbasins, and
reaches. The District further argues that language in § 46-713
expressly provides that the hydrological connection should be
evaluated “in each of the state’s river basins” (emphasis sup-
plied), and that such language implies areas outside a river
basin cannot be considered in determining appropriated status.
We disagree with the District’s interpretation.
An examination of the findings of the legislature with respect
to the passage of the Act demonstrates that the legislature
was fully aware of the hydrological connection often existing
between surface water and ground water8 and was interested in
protecting those resources.9 The findings also indicate that the
legislature recognized these hydrological connections some-
times affect more than one natural resources district10 and that
it was the expectation of the legislature that all interested
parties would cooperate in the management of the State’s
hydrologically connected water resources.11 This expectation of
cooperation was also expressed in § 46-715, which provides for
the cooperation of the DNr and any affected natural resources
districts in preparing an integrated management plan upon
a DNr determination that a river basin is fully appropriated
or overappropriated.
In addition to recognizing this connection in its findings, the
legislature explicitly required that these areas of hydrological
connection be considered by the DNr in making its determina-
tions under the Act. In particular, § 46-713(1)(a) provides that
8 § 46-703(2).
9 § 46-703(1).
10 § 46-703(4).
11 § 46-703(6).
UPPEr BIG BlUE NrD v. STATE 	619
Cite as 276 Neb. 612

the DNr’s report with respect to its preliminary determination
as to the appropriated status of a river basin “shall describe . . .
the geographic area within which the department preliminarily
considers surface water and ground water to be hydrologi-
cally connected and the criteria used for that determination.”
Moreover, the DNr is required to set forth by regulation the
scientific data and information it utilizes in determining this
hydrological connection.12
Thus, the Act explicitly requires consideration of hydro-
logical connections in determining the appropriated status of
a river basin. What the Act does not do is set forth any limita-
tions on the DNr’s ability to define that connection. Given the
detail of the Act and its focus on the hydrological connection
between surface water and ground water, we find this omission
telling. We agree with the DNr that the District’s interpreta-
tion would
require the Department to completely ignore the real-
world hydrologic interconnections between surface water
and ground water, and said connections’ effect on a
“basin.” In addition, such a requirement would set an
arbitrary standard for managing the State’s interconnected
water resources, which simply goes against the intent of
the Act.
[T]he intent of the Act is . . . to integrate the manage-
ment of surface water and ground water . . . .”13
We therefore conclude that 457 Neb. Admin. Code, ch. 24,
§ 001.02, was authorized by its enabling legislation and that
the DNr did not exceed its statutory authority in enacting it.
The District’s assignment of error is without merit.
dnr’ s cross -A ppeAl
On cross-appeal, the DNr assigns that the district court
lacked jurisdiction over the APA action because the DNr’s
order did not fall within any of the three categories that may be
12 § 46-713(1)(d).
13 Brief for appellees at 36.
620 	276 NEBrASkA rEPOrTS

appealed under the APA.14 In particular, the DNr contends that
we are not presented with a contested case under the APA.
We conclude, however, that even assuming the April 21,
2006, order was not part of a contested case and is not appeal-
able under the APA, we nevertheless have jurisdiction to decide
the issue of whether the DNr exceeded its authority in enact-
ing 457 Neb. Admin. Code, ch. 24, § 001.02.
Section 84-911(1) provides:
The validity of any rule or regulation may be deter-
mined upon a petition for a declaratory judgment thereon
addressed to the district court of lancaster County if it
appears that the rule or regulation or its threatened appli-
cation interferes with or impairs or threatens to interfere
with or impair the legal rights or privileges of the peti-
tioner. The agency shall be made a party to the proceed-
ing. The declaratory judgment may be rendered whether
or not the petitioner has first requested the agency to pass
upon the validity of the rule or regulation in question.
In fact, the District did file a declaratory judgment action
against the DNr questioning the validity of the regulation.
Accordingly, the district court, and now this court, had juris-
diction to determine whether the DNr exceeded its authority
by enacting the regulation in question. We need not further
address the DNr’s cross-appeal.
CONClUSION
We conclude that 457 Neb. Admin. Code, ch. 24, § 001.02,
was authorized by enabling legislation. As such, the DNr did
not exceed its authority in enacting the regulation. We there-
fore affirm the decision of the district court in these consoli-
dated appeals.
A ffirmed .
14 See §§ 84-902 to 84-917.
UPPEr BIG BlUE NrD v. STATE 	621
Cite as 276 Neb. 612