§ 41-12-701 — Generally

Ratification and approval is hereby given to the Upper Niobrara
River Compact as signed at Cheyenne, Wyoming, on the 26th day of
October, A.D. 1962, by E. J. Van Camp, the interstate streams
commissioner of the state of Wyoming, and the assistant
commissioners, hereinafter named, under and in accordance with
the authority of W.S. 41-11-201 through 41-11-204, which compact
was also signed by the duly authorized commissioner of the state
of Nebraska, and which Upper Niobrara River Compact is in full
as follows:
UPPER NIOBRARA RIVER COMPACT
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, 1st 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. Willson, 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
waters supply of the upper Niobrara River basin between the
states; to provide for obtaining information or 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
(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
(a) It shall be the duty of the two (2) 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.
(b) 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
Each 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
(a) Wyoming and Nebraska agree that the division of
surface waters of the upper Niobrara River shall be in
accordance with the following provisions:
(i) 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 twenty (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 (1) year to September 30 of the
next year) more than a total of five hundred (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 (1) 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 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
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 (1) 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 a priority basis with Nebraska
rights west of range 55 west, provided that any direct flow
rights for maximum of one hundred forty-three (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" (W.S. 41-4-317 through 41-4-324)
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
(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 date [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, ground water 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 (2) 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 (2) states.
(c) The ground water investigations shall begin within one
(1) year after the effective date of this compact. Upon
collection of not more than twelve (12) 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, re-analysis shall be made at not to exceed two (2)
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 (2) 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 (2) states and approved by the
congress of the United States.
Article VII
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
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
(a) Nothing in this compact shall be deemed:
(i) 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.
(ii) 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 equity whatsoever in reimbursement for the loss
of taxes.
(iii) 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 apply
without regard to the compact.
(iv) 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
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
This compact shall become effective when ratified by the
legislatures.
IN WITNESS WHEREOF, the commissioners have signed this
compact in triplicate original, one (1) of which shall be filed
in the archives of the United States of America and shall be
deemed the authoritative original, and one (1) 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 Nine
Hundred Sixty-Two 1962.
Commissioners for the state of Nebraska
/s/Dan S. Jones, Jr.
Commissioners for the state of Wyoming
/s/ Earl Lloyd /s/ Eugene P. Willson
/s/ Andrew McMaster /s/ H. T. Person
/s/ Richard Pfister /s/ Norman B. Gray
/s/ John Christian /s/ 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.
/s/W. E. Blomgren
Representative of the United States of America.