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UPPER NIOBRARA RIVER COMPACT, 1962
Signatory States: Nebraska and Wyoming
Rivers Controlled: The Niobrara River and its tributaries in
Nebraska and Wyoming west of Range 55 West of the 6th P.
M.
Ratifications:
Wyo. Stat. 941-512.5 (Supp. 1969) [Act of
Feb. 16, 1963, Wyo. Sess. Laws ch. 105]
Neb. Rev. Stat. vol. 2A, appendix p. 771
(Reissue 1964) [Act of Oct. 26, 1962,
Neb. Laws ch. 332]
Summary:
The Compact provides for only limited restrictions on
Wyoming's use of the Niobrara River. Basically, these
restrictions relate to:
1) priority dates and storage rights
in Wyoming reservoirs and
2) priority dates and direct flow
rights in the Niobrara, its tributaries and ditches.
The Compact also lays the foundation for future
apportionment of the ground water in the Niobrara River Basin.
UPPER NIOBRARA RIVER COMPACT, 1962
The State of Wyoming, and the State of Nebraska, parties
signatory to this compact (hereinafter referred to as Wyoming and
Nebraska, respectively, or individually as a "State," or
collectively as "States"), having resolved to conclude a compact
with respect to the use of waters of the Niobrara River Basin, and
being duly authorized by Act of Congress of the United States of
America, approved August 5, 1953 (Public Law 191, 83rd Congress, lst
Session, Chapter 324, 67 Stat. 365) and the Act of May 29, 1958
(Public Law 85-427, 85th Congress, S. 2557, 72 Stat. 147) and the
Act of August 30, 1961 (Public Law 87-181, 87th Congress, S. 2245,
75 Stat. 412) and pursuant to the Acts of their respective
Legislatures have, through their respective Governors, appointed as
their Commissioners: For Wyoming, Earl Lloyd, Andrew McMaster,
Richard Pfister, John Christian, Eugene P. Wilson, H. T. Person,
Norman B. Gray, E. J. Van Camp; For Nebraska, Dan S. Jones, Jr., who
after negotiations participated in by W. E. Blomgren appointed by
the President of the United States of America, have agreed upon the
following articles:
ARTICLE I
-
A. The major purposes of this compact are to provide for an
equitable division or apportionment of the available surface water
supply of the Upper Niobrara River Basin between the States; to
provide for obtaining information on groundwater and underground
water flow necessary for apportioning the underground flow by
supplement to this compact; to remove all causes, present and future
which might lead to controversies; and to promote interstate comity.
B. The physical and other conditions peculiar to the Upper
Niobrara River Basin constitute the basis for this compact; and
neither of the States hereby concedes that this compact establishes
any general principle or precedent with respect to any other
interstate stream.
C. Either State and all others using, claiming or in any other
manner asserting any right to the use of the waters of the Niobrara
River Basin under the authority of that State, shall be subject to
the terms of this compact.
ARTICLE II
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A. The term "Upper Niobrara River" shall mean and include the
Niobrara River and its tributaries in Nebraska and Wyoming west of
Range 55 West of the 6th P. M.
B. The term "Upper Niobrara River Basin" or the term "Basin"
shall mean that area in
Wyoming and Nebraska which is naturally drained by the Niobrara River
west of Range 55 West of
the 6th P. M.
C. Where the name of a State or the term "State" or "States" is used,
they shall be construed to include any person or entity of any nature whatsoever
using, claiming, or in any manner asserting any right to the use of
the waters of the Niobrara River under the authority of that
State.
ARTICLE III
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It shall be the duty of the two States to administer this compact
through the official in each State who is now or may hereafter be
charged with the duty of administering the public water supplies,
and to collect and correlate through such officials the data
necessary for the proper administration of the provisions of this
compact. Such officials may, by unanimous action, adopt rules and
regulations consistent with the provisions of this compact.
The States agree that the United States Geological Survey, or
whatever Federal agency may succeed to the functions and duties of
that agency, insofar as this compact is concerned, may collaborate
with the officials of the States charged with the administration of
this compact in the execution of the duty of such officials in the
collection, correlation, and publication of information necessary
for the proper administration of this compact.
ARTICLE IV
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East State shall itself or in conjunction with other responsible
agencies cause to be established, maintained, and operated such
suitable water gaging stations as are found necessary to administer
this compact.
ARTICLE V
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A. Wyoming and Nebraska agree that the division of surface waters
of the Upper Niobrara River shall be in accordance with the
following provisions.
-
1. There shall be no restrictions on the use of the surface
waters of the Upper Niobrara River by Wyoming except as would be
imposed under Wyoming law and the following limitations:
-
(a) No reservoir constructed after August 1, 1957, and
used solely for domestic and stock water purposes shall
exceed 20 acre-feet in capacity.
(b) Storage reservoirs with priority dates after August
1, 1957, and storing water from the main stem of the Niobrara
River east of Range 62 West of the 6th P-. M. and from the
main stem of Van Tassel Creek south of Section 27, Township
32 North, Range 60 West of the 6th P. M. shall not store in
any water year (October 1 of one year to September 30 of the
next year) more than a total of 500 acre-feet of water.
(c) Storage in reservoirs with priority dates prior to
August 1, 1957, and storing water from the main stem of the
Niobrara River east of Range 62 West and from the main stem
of Van Tassel Creek south of Section 27, Township 32 North,
shall be made only during the period October 1 of one year to
June 1 of the next year and at such times during the period
June 1 to September 30 that the water is not required to meet
the legal requirements by direct flow appropriations in
Wyoming and in Nebraska west of Range 55 West. Where water
is pumped from such storage reservoirs, the quantity of
storage water pumped or otherwise diverted for irrigation
purposes or other beneficial purposes from any such reservoir
in any water year shall be limited to the capacity of such
reservoir as shown by the records of the Wyoming State
Engineer's Office, unless additional storage water becomes
available during the period June 1 to September 30 after
meeting the legal diversion requirements by direct flow
appropriations in Wyoming and in Nebraska west of Range 55 West.
(d) Storage in reservoirs with priority dates after
August 1, 1957, and storing water from the main stem of the
Niobrara River east of Range 62 West and the main stem of Van
Tassel Creek south of Section 27, Township 32 North, shall be
made only during the period October 1 of one year to May 1
of the next year and at such times during the period May 1,
and September 30 that the water is not required for direct
diversion by ditches in Wyoming and in Nebraska west of Range
55 West.
(e) Direct flow rights with priority dates after August
1, 1957, on the main stem of the Niobrara River east of Range
62 West and Van Tassel Creek south of Section 27, Township 32
North, shall be regulated on priority basis with Nebraska
rights west of Range 55 West, provided, that any direct flow
rights for a maximum of 143 acres which may be granted by the
Wyoming State Engineer with a priority date not later than
July 1, 1961, for lands which had Territorial Rights under
the Van Tassel No. 4 Ditch with a priority date of April 8,
1882, and the Van Tassel No. 5 Ditch with a priority date
of April 18, 1882, shall be exempt from the provisions of
this subsection (e).
(f) All direct flow diversions from the main stem of the
Niobrara River east of
Range 62 West and from Van Tassel Creek south of Section 27,
Township 32 North shall
at all times be limited to their diversion rates as specified
by Wyoming law, and provided that Wyoming laws relating to
diversion of "Surplus Water" (Wyoming Statutes, 1957,
Sections 41-181 to 41-188 inclusive) shall apply only when
the water flowing in the main channel of the Niobrara River
west of Range 55 West is in excess of the legal diversion
requirements of Nebraska ditches having priority dates before
August 1, 1957.
ARTICLE VI
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A. Nebraska and Wyoming recognize that the future use of
ground water for irrigation in the Niobrara River Basin may be a
factor in the depletion of the surface flows of the Niobrara River,
and since the data now available are inadequate to make a
determination in regard to this matter, any apportionment of the
ground water of the Niobrara River Basin should be delayed until
such time as adequate data on ground water of the basin are
available.
B. To obtain data on ground water, Nebraska and Wyoming,
with the cooperation and advice of the United States Geological
Survey, Groundwater Branch, shall undertake ground water
investigations in the Niobrara River Basin in the area of the
Wyoming-Nebraska State line. The investigations shall be such as
are agreed to by the State Engineer of Wyoming and the Director of
Water Resources of Nebraska, and may include such observation wells
as the said two officials agree are essential for the
investigations. Costs of the investigations may be financed under
the cooperative ground water programs between the United States
Geological Survey and the States, and the States' share of the
costs shall be borne equally by the two States.
C. The ground water investigations shall begin within one
year after the effective date of this compact. Upon collection of
not more than twelve months of ground water data Nebraska and
Wyoming with the cooperation of the United States Geological
Survey, shall make, or cause to be made, an analysis of such data
to determine the desirability or necessity of apportioning the
ground water by supplement to this compact. If, upon completion of
the initial analysis, it is determined that apportionment of the
ground water is not then desirable or necessary, reanalysis
shall be made at not to exceed two-year intervals, using all data
collected until such apportionment is made.
D. When the results of the ground water investigations
indicate that apportionment of ground water of the Niobrara River
Basin is desirable, the two States shall proceed to negotiate a
supplement to this compact apportioning the ground water of the
Basin.
E. Any proposed supplement to this compact apportioning the
ground water shall not become
effective until ratified by the legislatures of the two States and
approved by the Congress of the United States.
ARTICLE VII
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The provisions of this compact shall remain in full force and effect
until amended by action
of the Legislatures of the Signatory States and until such amendment
is consented to and approved
by the Congress of the United States in the same manner as this
compact is required to be ratified
and consented to in order to become effective.
ARTICLE VIII
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Nothing in this compact shall be construed to limit or
prevent either State from instituting or maintaining any action or
proceeding, legal or equitable, in any court of competent jurisdiction
for the protection of any right under this compact or the
enforcement of any of its provisions.
ARTICLE IX
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Nothing in this compact shall be deemed:
A. To impair or affect any rights or powers of the United
States, its agencies, or instrumentalities, in and to the use of
the waters of the Upper Niobrara River Basin nor its capacity to
acquire rights in and to the use of said waters; provided that, any
beneficial uses of the waters allocated by this compact hereafter
made within a State by the United States, or those
acting by or under its authority, shall be taken into account in
determining the extent of use within that State.
B. To subject any property of the United States, its
agencies, or instrumentalities to taxation by either State or
subdivision thereof, nor to create an obligation on the part of the
United States, its agencies, or instrumentalities, by reason of the
acquisition, construction, or operation of any property or works of
whatsoever kind, to make any payment to any State or political subdivision
thereof, State agency, municipality, or entity
whatsoever in reimbursement for the loss of taxes.
C. To subject any property of the United States, its agencies,
or instrumentalities, to the
laws of any State to an extent other than the extent to which these
laws would apply without regard to the compact.
D. To affect the obligations of the United States of America to
Indians or Indian tribes,
or any right owned or held by or for Indians or Indian tribes which
is subject to the jurisdiction of the United States.
ARTICLE X
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Should a court of competent jurisdiction hold any part of this
compact contrary to the
constitution of any State or of the United States, all other
severable provisions shall continue
in full force and effect.
ARTICLE XI
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This compact shall become effective when ratified by the
Legislatures of each of the signatory States and by the Congress of
the United States.
IN WITNESS WHEREOF, the Commissioners have signed this compact
in triplicate original, one of which shall be filed in the archives
of the United States of America and shall be deemed the
authoritative original, and one copy of which shall be forwarded to
the Governor of each of the signatory States.
Done at the city of Cheyenne, in the State of Wyoming, this 26th
day of October, in the year of our Lord, One Thousand and Nine
Hundred Sixty Two, 1962.
Commissioner for the State of Nebraska:
-
Dan S. Jones, Jr.
Commissioners for the State of Wyoming:
-
- Earl Lloyd
- Andrew McMaster
- Richard Pfister
- John Christian
- Eugene P. Wilson
- H. T. Person
- Norman B. Gray
- E. J. Van Camp
I have participated in the negotiation of this Compact and
intend to report favorably
thereon to the Congress of the United States.
W. E. Blomgren
Representative of the United States of
America
NOTES
Congressional consent to negotiations.---By the Act of August 5,
1953 (67 Star. 365) the Congress gave its consent to negotiations
between the States of Wyoming and Nebraska. The time for
negotiation was extended by the Act of May 29, 1958 (72 Stat. 147)
and again by the Act of August 30, 1961 (75 Stat. 412).
Congressional consent to compact.---Act of August 4, 1969 (83
Stat. 86), from which the text of the Compact set out above is
taken. Sections 2 and 3 of this Act read as follows:
-
Sec. 2: The right to alter, amend, or repeal this Act is
reserved.
Sec. 3: Nothing in this Act shall be deemed to impair or
affect any rights or powers
of the United States, its agencies,
instrumentalities, permittees, or licensees in,
over, and to the use of the waters of the Upper
Niobrara River Basin; nor to impair or affect their
capacity to acquire rights in and to the use of said
waters.
For legislative history, see House Report No. 91-359 (Committee
on Interior and Insular
Affairs); Senate Report No. 91-265 (Committee on Interior and
Insular Affairs); Cong. Rec. , vol. 115 (1969); P. L. 91-52.
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