Opinion No. (1981)
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REQUESTED BY: Senator Tom Vickers State Capitol Lincoln, Nebraska 68509

Dear Senator Vickers:

We are responding to your request for an opinion whether LB 252 violates the equal protection clause of theFourteenth Amendment of the United States Constitution. You also inquire whether an amendment you enclosed would be constitutional.

In answer to your first question, we refer you to an opinion written to Senator Maurice Kremer dated May 12, 1981, in response to his previous request in which we concluded that LB 252 as presently amended violates neither the due process clause nor the equal protection clause of theFourteenth Amendment of the United States Constitution. It was our conclusion that the act creates reasonable distinctions between in-basin and out-of-basin applicants, and that the proposal bears a reasonable relationship to legitimate state objectives. We further concluded that since ownership of surface water resides in the public, that no person is being deprived of property rights without due process of law.

We have examined the proposed amendment which you attached, listing twelve factors which the Director of the Department of Water Resources must consider when making a determination upon the application to appropriate 5,000 or more acre feet of water. We perceive no constitutional impediment to such an amendment and conclude that it, likewise, would be a valid enactment.

Very truly yours, PAUL L. DOUGLAS Attorney General G. Roderic Anderson Assistant Attorney General