Beneficial Use of Your Water Right

This is the second part in a series focusing on water law in Nebraska. The first covered what constitutes a water right in Nebraska. A water right is a permissive right to use the water, not a property right to the water itself. This next section will focus on the provision of what constitutes a beneficial use of water in Nebraska.

As outlined in Neb. Rev. Stat. § 46-229, “Any appropriation of water must be for a beneficial use.” This takes a little work to parse out the exact definition of beneficial use. To figure out what this requirement specifies, case law is the guiding source as to what constitutes beneficial use. The case that outlines a beneficial use is Hostetler v. State, 203 Neb. 776, 280 N.W.2d 75 (1979). In this case the landowners (the Hostetlers) inherited a piece of land which included a water right to irrigate a pasture. The previous owner told the Hostetlers that the water right had been previously lost because of lack of use. After conversations with the Department of Water Resource’s engineer, the Hostetlers were notified that there was no actual cancellation of the appropriation. After this, the Hostetlers built a temporary diversion dam. The dam was used only once to see if water would flow in the canal. After this diversion, Mr. Hostetler did not divert any additional water nor did he irrigate any section of the land, although he did water some cattle via this canal. Later on, the Department gave the landowners notice to cancel their water right based on the non-use of the water appropriation for more than three years. The Hostetlers challenged the cancellation of the water right, arguing that the diversion did in fact constitute a beneficial use.

The court disagreed with the Hostetlers’ argument, holding that “to constitute a beneficial use within the meaning of the appropriation statute, the use must be one described in the appropriation,” which was irrigating the land. In this specific case, the Hostetlers did not use the water for the purpose of one described in the appropriation. They instead only diverted a small amount, which was used to water cattle, which did not constitute a use described in this appropriation. Ultimately the court ruled that “in the case of an appropriation for irrigation purposes, actual application of the water to the land for the purpose of irrigation” is what constitutes a beneficial use.

Now, this case did outline a few excuses for beneficial use. These include the lack of water in the diversion source or, on the other hand, too much rainfall or moisture so that the diversion of water would result in waste of the resource. Ultimately, the beneficial use requirement would be excused if the appropriation purpose could not be met due to natural occurrences such as drought or normal-to-excessive rainfall.

The takeaways from this handout is that water appropriated under Nebraska law must be used for a beneficial use. The beneficial use must fit within the purpose of the original appropriation. So if the purpose of the water right was for irrigation, the water must be used for irrigation or be in danger of being cancelled if not used within a three year timeframe. There are excuses for such non-use, such as too much water to the point that diversion of water for irrigation purposes would go against good farming practices, or that there was too little water in the stream to divert.

If you have any questions regarding water use and your land, please contact us. As mentioned this is part of a series, so please come back often to learn about water law in Nebraska and important terms and issues regarding water and agriculture.

USDA Authorizes 9.6 Billion in ARC, PLC, and CRP Payments

Agriculture Secretary Sonny Perdue announced on October 3, 2017, that payments totaling 9.6 billion will be paid to producers for crop loss through the Agriculture Risk Coverage (ARC) and the Price Loss Coverage (PLC) programs, and for conservation efforts through the Conservation Reserve Program (CRP). Over three quarters of a million producers will see payments under the ARC and PLC programs amounting to $8 billion payments for the 2016 crop year. Crops covered under this program include:

  • Barley;
  • Corn;
  • Grain sorghum;
  • Lentils;
  • Oats;
  • Peanuts;
  • Dry beans;
  • Soybeans;
  • Wheat; and
  • Canola.

Payments will be made for other covered crops under these programs after the marketing year average prices are determined.

CRP payments total 1.6 billion to over 375,000 producers in 2017. This voluntary program focuses on taking environmentally sensitive lands out of production to protect those acres and improve water and habitat quality.

Both of these programs are designed to help farmers and ranchers in time of need and to protect and conserve sensitive land on the operations.

If you have any questions regarding these programs, please contact us. Read the full  Press Release from the USDA.

October Clinic Dates

Farmers and ranchers are invited to attend a FREE clinic.  The clinics are one-on-one, not group sessions, and are confidential.  The Farm Finance clinic gives you a chance to meet with an experienced Ag law attorney and Ag financial counselor.  These clinic staff specialize in legal and financial issues related to farming and ranching, including financial planning, estate and transition planning, farm loan programs, debtor/creditor law, water rights, and other relevant matters.  Here is an opportunity to obtain an experienced outside opinion on issues that may be affecting your farm or ranch.  Bring your questions!

October Clinic dates and locations:

Valentine – Wednesday, October 11th

Norfolk – Thursday, October 12th

Fairbury – Thursday, October 26th

Norfolk – Tuesday, October 31st

To register, please call the Rural Response Hotline at 1-800-464-0258.

September Clinic Dates

Farmers and ranchers are invited to attend a FREE clinic.  The clinics are one-on-one, not group sessions, and are confidential.  The Farm Finance clinic gives you a chance to meet with an experienced Ag law attorney and Ag financial counselor.  These clinic staff specialize in legal and financial issues related to farming and ranching, including financial planning, estate and transition planning, farm loan programs, debtor/creditor law, water rights, and other relevant matters.  Here is an opportunity to obtain an experienced outside opinion on issues that may be affecting your farm or ranch.  Bring your questions!

These FREE farm and ranch clinics are being held in:

September Clinic dates:

Valentine – Friday, September, 1st

Norfolk – Wednesday, September, 6th

Grand Island – Tuesday, September, 19th

North Platte – Wednesday, September 20th

Norfolk – Tuesday, September 26th

Fairbury – Tuesday, September 26th

To sign up for a clinic or for more information, call Michelle at the Nebraska Farm Hotline:  1-800-464-0258.

The Nebraska Department of Agriculture and Legal Aid of Nebraska sponsor the farm finance clinics.

South Dakota Workshops Ranch/Farm Succession Planning & USDA Loan Programs and FSA Disaster and Drought Programs

Two separate free workshops will be offered to farmers and ranchers in Belle Fourche, South Dakota at the Branding Iron Café with a light lunch provided.  These workshops are not limited to Beginning Farmers and are open to the public. To register (and for questions) call the Rural Response Hotline at 1-800-464-0258.

The first workshop is from 9 am to 12:00 pm on Tuesday, August 29, 2017, it will address both farm and ranch succession planning, and USDA loan programs, including those loan programs intended to support beginning farmers and ranchers.  The succession planning portion will cover basic estate and transitioning planning issues and tools, including federal transfer taxes, incapacity planning, transfer tools (wills, titling and trusts), balancing the interests of on-farm and off-farm heirs (access to land and operational assets, contribution & compensation, management and control, asset protection, leases, tools for co-ownership), and decision making steps in the transition planning process.  The USDA loan segment will cover Farm Service Agency loan programs, including direct and guaranteed loans, beginning farmer loans, microloans, and storage facility loans.

The second workshop is from 9 am to 12:00 pm on Wednesday, August 30, 2017, it will address Farm Service Agency disaster programs, including the Livestock Forage Program (LFP), the Livestock Indemnity Program (LIP), Emergency Assistance for Livestock, Honeybees, and Farm-raised Fish (ELAP), and the Noninsured Crop Disaster Assistance Program (NAP).   We will discuss program benefits and coverage and eligibility criteria.

There will also be an opportunity to engage in one-on-one discussions with the presenters by signing up for free ½ hours sessions after the workshop.

These workshops and clinics are made available through The Nebraska Network for Beginning Ranchers and Farmers, which includes services in South Dakota, Wyoming and Colorado, and the Farm Law Project of Legal Aid of Nebraska.

Presenters:

Joe Hawbaker, Agricultural Law Attorney, with Hawbaker Law Office, Omaha, Nebraska.

Amy Swoboda, Farm and Food Attorney with Legal Aid of Nebraska, Lincoln, Nebraska.

August Clinic Dates- Financial & Estate Planning, Beginning Farmer Programs, Debtor/Creditor Law, Water Rights and Much More…

Farmers and ranchers are invited to attend a FREE clinic.  The clinics are one-on-one, not group sessions, and are confidential.  The Farm Finance clinic gives you a chance to meet with an experienced Ag law attorney and Ag financial counselor.  These clinic staff specialize in legal and financial issues related to farming and ranching, including financial planning, estate and transition planning, farm loan programs, debtor/creditor law, water rights, and other relevant matters.  Here is an opportunity to obtain an experienced outside opinion on issues that may be affecting your farm or ranch.  Bring your questions!

August Clinic Dates and Locations:

North Platte – Thursday, August 10, 2017

Fairbury – Wednesday, August 16, 2017

Lexington – Thursday, August 17, 2017

Norfolk – Thursday, August 24, 2017

Valentine – Friday, September 1, 2017

To register for a FREE clinic or to receive more information about our services, call Michelle and the Rural Response Hotline: 1-800-464-0258.

These clinics are sponsored by the Nebraska Department of Agriculture and Legal Aid of Nebraska.

Legal Aid of Nebraska      Farm mediation

USDA Allows for Emergency Grazing and Haying in Drought-stricken Areas

On July 20, 2017, the USDA authorized the use of additional Conservation Reserve Program lands for emergency haying and grazing in drought-stricken areas in Montana and the Dakotas that have reached D2, or severe drought level or greater on the U.S. Drought Monitor.

This also includes counties with any part of their border that is within 150 miles of authorized counties in the three states may also be eligible for emergency grazing. This includes areas in Idaho, Wyoming, Nebraska, Minnesota, and Iowa.

All emergency grazing must end by September 30, while all emergency haying must end by August 31. Any landowners who are interested should contact their local Farm Service Agency office and meet their local Natural Resources Conservations Service staff to get a modified conservation plan in place.

 

For more information, please visit: www.fsa.usda.gov/emergency-hayandgraze

To view the press release, please visit: https://www.fsa.usda.gov/state-offices/Nebraska/news-releases/2017/stnr_ne_20170720_rel_06

Have You Enrolled in ARC/PLC for 2017?

Today the Nebraska FSA Acting State Executive Director Mike Sander issued a statement reminding farmers and ranchers that the deadline for enrollment in the Agriculture Risk Coverage (ARC) and Price Loss Coverage (PLC) programs for the 2017 crop year is August 1st, 2017

Agriculture Risk Coverage provides loss coverage at the county level when actual county crop revenue is less than the guarantee.

Price Loss Coverage provides coverage when the effective price of a crop is less than the respective reference price.

A wide range of crops may be covered under these programs, including: barley, corn, oats, rice, soybeans, and wheat.

If you have not yet enrolled, please call or visit your local FSA office. Find your local office at: https://offices.sc.egov.usda.gov/locator/app

 

For more information, please visit: https://www.fsa.usda.gov/programs-and-services/arcplc_program/index

USDA Designates Kearney County as a Primary Natural Disaster Area

Highlights from Nebraska Farm Services Agency concerning the recent disaster declaration news release:

  • The US Department of Agriculture recently designated Kearney County as a primary natural disaster area due to the recent drought.
  • Adams, Buffalo, Franklin, Harlan, Phelps and Webster are contiguous and therefore qualify for natural disaster assistance.
  • Farm or ranch operators that meet eligibility requirements are eligible for low interest emergency loans from FSA.
  • The deadline is eight (8) months from September 29, 2016, to apply for loans to help cover part of actual losses.
  • FSA considers each application on its own merits, taking into account:
    • extent of losses;
    • security available; and
    • repayment ability.
  • There are other programs available to help eligible farmers to recover from adversity.

For further information on the designation or other disaster resources available, contact your local FSA offices or go to http://disaster.fsa.usda.gov.

For the full original new release, please go to http://www.fsa.usda.gov/state-offices/Nebraska/news-releases/2016/stnr_20161003_rel_394.

CRP Acres in Four Nebraska Counties Now Eligible for Emergency Haying and Grazing

(LINCOLN, Neb.) Aug. 18, 2016 — U.S. Department of Agriculture (USDA) Nebraska Farm Service Agency (FSA) Executive Director Dan Steinkruger today announced four counties have been authorized for emergency haying and grazing use of Conservation Reserve Program (CRP) acres due to drought.
The following counties are approved for emergency CRP haying until Aug. 31, 2016, and for grazing through Sept. 30, 2016: Adams, Franklin, Kearney, and Webster.
“Nebraska FSA is making every effort to offer assistance for farmers and ranchers during this tough production year. Emergency haying and grazing can help relieve the burden of losses suffered due to the severe weather Nebraska is experiencing in these counties,” said Steinkruger.

The CRP emergency haying and grazing authorization for 2016 went into effect for these counties over the past week.

Producers who want to hay or graze their CRP contract acres must sign up and receive approval from their local FSA office prior to any emergency haying or grazing activities commencing and must work with the Natural Resources Conservation Service (NRCS) to ensure an amended conservation plan is in place.
To take advantage of the emergency haying and grazing provisions, authorized producers can use the CRP acreage for their own livestock or may grant another livestock producer use of the CRP acreage. CRP participants can donate, but are not allowed to sell, the hay.
Steinkruger adds, “There is no payment reduction for CRP acres used for haying and grazing under these emergency provisions. However, participants are limited to one hay cutting.”
For questions, contact your local FSA office or visit Nebraska Farm Service Agency online at www.fsa.usda.gov/ne.

USDA is an equal opportunity provider, employer and lender. To file a complaint of discrimination, write: USDA, Office of the Assistant Secretary for Civil Rights, Office of Adjudication, 1400 Independence Ave., SW, Washington, DC 20250-9410 or call (866) 632-9992 (Toll-free Customer Service), (800) 877-8339 (Local or Federal relay), (866) 377-8642 (Relay voice users).