CONCLUSIONS
Non-game and endangered species provisions of Chapter 37.
Instream flow appropriation provisions of Chapter 46.
Wet Meadows application A-17333
Fishery applications A-17330, A-17331 & A-17332
Whooping crane application A-17332
Public Interest
Other Issues
ORDERED
Top of Order

STATE OF NEBRASKA

DEPARTMENT OF WATER RESOURCES

In the Matter of Applications )
A-17329 through A-17333.     )             ORDER
Water Divisions 1-A, 2-A       )
and 2-B.                                )

To preserve the presence of natural flows in the Platte River for certain fish and wildlife, the
Game and Parks Commission filed five applications on November 30, 1993. The applications
sought particular time periods and corresponding flow quantities for specified locations and
for specified fish and wildlife.

Following initial review of the Commission’s applications, Department of Water Resources
staff gave official notice. More than three dozen persons and organizations responded. Several
indicated support for the Commission’s applications and became its allies. A much larger
number joined forces in opposition.

Despite the efforts of all the parties, settlement was not achieved. An adversarial hearing
began on September 25, 1996. Specifically under examination were these applications:

The 39-day hearing extended over six months time. It ended April 8, 1997. The transcribed
testimony is nearly 7,700 pages in length. More than 200 exhibits round out the record.

Near the end of the proceeding, counsel and I discussed post-hearing briefs. Included were
schedules, page limitations and issues which might be included in the parties’ briefs. On the last
day of the hearing, counsel were given instructions concerning the sequence of their filings, length
of their briefs, filing deadlines and particular issues to be addressed.

Some two months later, Legislative Bill 877 was passed by the Unicameral and signed into law
by the Governor. Among its provisions were retroactive changes in the manner in which instream
flow appropriations are to be quantified. In reaction to the statutory changes, counsel requested
and were granted time extensions for submitting their briefs. In its brief the Commission
concluded the evidence supported the timing and flow specifications associated with each of its
applications. Full approval of each was urged. At lesser flow rates and for somewhat different time
intervals, the Commission’s opponents favored approving four of the five applications. It was said
the wet meadows application, A-17333, should be denied entirely. In further reaction to the newly
amended statutes, counsel for both sides of the dispute also agreed to the offer of additional
exhibits which were subsequently received into the record.

CONCLUSIONS:

Non-game and endangered species provisions of Chapter 37.

Prior to commencement of the hearing in September 1996, Department staff initiated the
consultation referenced in § 37-435. Resultant advice received December 28, 1995, from
Game and Parks Commission staff member Daylan Figgs indicated approval of the five
applications would have "no effect" upon threatened or endangered species or their habitat.

There is nothing in the subsequent hearing record which would cast doubt on that conclusion.
If anything, granting the applications would appear beneficial. As a result none of the applications
should be rejected on the basis of potential jeopardy to threatened or endangered species or to
their habitat.

Instream flow appropriation provisions of Chapter 46.

During the course of the proceeding the parties sometimes argued their positions as though some
or all of the applications were a consolidated package. But, in terms of their specific purpose and
their geographic focus, the five applications are distinct. Before thoroughly viewing each
application under all of the statutory requirements, however, several initial conclusions will reduce
the scope of that undertaking.

Wet Meadows application A-17333

Attention will first be directed at A-17333. Briefly, that application seeks, through the exercise of a
priority, to maintain certain river flows as a means of manipulating the water table underlying
nearby wet meadows. If maintained at the proper elevation, the relatively shallow water table beneath
the wet meadows was said to prompt upward movement of particular life forms toward the soil
surface. At shallow depth affected species such as earth worms and beetle larvae are important
nutrient sources for whooping cranes and other animals. Field and analytical work undertaken by
such expert witnesses as Currier, Vohs, Lock, and Seibert were offered by the Commission and
detailed the principal biological factors.

Supporting the biological understandings of these expert witnesses is apparent belief in the
existence of a hydraulic connection linking river flow changes and fluctuations in ground water
levels in nearby aquifers. As an initial impression at least, plant and wetland ecology specialist
Currier went further than most of the others in researching and discussing the linkage
(Tr. pp. 1756-1765, 1789-1830 and 1848-1859). Wintertime data collected from frost tubes,
summertime data resulting from observations of water seen in wet meadow sloughs, and
implications associated with several inventories and observations of native vegetation formed
the basis for his views. When cross-examined by Doyle, however, it became clear most of
Currier’s hydrologic opinions were not soundly based.

Generally, as opposed to using the data he mentioned as a means to discredit a working
hypothetical premise, Currier short-cut that process and claimed certain data merely confirmed
evidence of the linkage. For the frost tube data, design of his data gathering network did not
include placing some tubes outside wet meadow areas for use as a control
(Tr. pp. 1848-1859). Thus, as winter gradually turns to spring, the frost tube data seem only
to indicate warming of the earth begins at depth and moves upward. Whether that phenomena
is hastened by vertical movement of the water table or by the presence of certain flows in
the Platte River was not established.

The record relating to wetland sloughs includes little during either Currier’s testimony
(Tr. pp. 1756-1757) or elsewhere. The most significant reference, however, is seen in
his seven-page Exhibit 80. According to the text, a short duration rise in river flow during
August 1990 caused the filling of several nearby sloughs. Whether the process of their
filling was through water movement in an aquifer or by direct inundation from the river was
not stated. Therefore, based upon the scant record, this aspect of Currier’s opinion is judged
inadequately based.

Elsewhere, in conjunction with his lengthy cross-examination concerning particular wet
meadows depicted in Exhibit 85, Currier ultimately acknowledged having made no
investigations aimed directly at determining whether a river-aquifer linkage exists
(Tr. pp. 1789-1830). His efforts at the so-called Elm Creek site appear to have come the
closest. Even there, however, it was finally conceded a "hydrological analysis of soils of the
stream bed" was not undertaken (Tr. p. 1805). Later (Tr. p. 1808), he responded negatively
when asked if he had undertaken studies to determine aquifer transmissivity or stream bed
conductance. Finally, on page 1811 of the transcript, Currier indicated his hydrologic opinions
were simply based upon field observations as opposed to the conclusions which might follow
comprehensive study.

Devoted almost exclusively to the topic of a stream-aquifer linkage was the testimony of
wetland plant ecologist Henszey. In contrast to Currier, this witness’ understanding of
hydrologic principles (Tr. pp. 2525-2528) is seen as the Commission’s principal means
of establishing the linkage.

The bulk of Henszey’s testimony stemmed from his analytical work done in conjunction
with seeking an advanced academic degree. By employing linear regression methods
(Tr. p. 2555), Henszey developed mathematical correlations which were said to link
measured levels in observation wells located in the Platte valley and several variables
which included river flow and stage, evapotranspiration (often referred to as ET) and
precipitation. Exhibits 77 and 104 are essentially the same and document the relevant
extent of his work. His Exhibits 560 through 565 were similarly developed. The later
exhibits contain additional data, and they entered the record as part of the Commission’s
rebuttal.

Presumably in application then, a desired water table elevation beneath the wet meadows
adjacent to the Platte River could be inferred from the testimony of biological experts
like Currier, Vohs and Siebert. With the desired elevation as a given, Henszey’s equations
could then be employed to specify a corresponding rate of flow in the river. While all of
the steps were not stated that simply, from the evidence presented it appears the
Commission staff essentially adopted that procedure in arriving at the flow rates specified
for A-17333.

Staff reliance upon Henszey’s analytical methodology was ill placed. Fatally absent from
Henszey’s work is a compelling hydrological or geological basis upon which to claim
evidence of a river-aquifer linkage. The sketchy discussion he composed on pages 4 and
5 of Exhibit 104 (an identical text appears on pages 5 and 6 in Exhibit 77) makes no direct
mention of it. Nor does either exhibit or Henszey’s testimony attribute such a claim to the
work of others. That he merely assumed such a linkage existed is seen in his
cross-examination (Tr. p. 2579) and in direct rebuttal testimony (Tr. pp. 7316-7318). In
alternative terminology found elsewhere (Tr. pp. 2591-2592, 7326-7327 and 7395-7396),
Henszey indicated only the likelihood of a physical cause and effect relationship was
established through his efforts.

While being examined, Henszey made no mention of in-the-field experiments which might
verify the existence of a river-aquifer linkage. Instead, his discussion of particular
precipitation events (Tr. pp. 2546-2548, for example) suggests a further reduction in any
weight to be given his cause and effect assumptions. While Henszey’s computations relating
river stage and observation well data seem to show a direct correlation, in subsequent dialog
with Dr. Bleed (Tr. pp. 2693-2712) he could not rule out precipitation as the ultimate factor
which drives a rise in water table levels. In fact following a "heavy downpour," Henszey said
another Platte valley researcher, Hurr, reported rapid upward movement in the water table.
Based upon his own observations, he later indicated findings which appear similar to those
attributed to Hurr (Tr. pp. 7323-7326).

Even if a hydraulic cause and effect relationship were successfully established, the imprecision
of Henszey’s correlations makes application of his equations questionable. An early indication
of limits to which his correlations might be employed is evident from testimony on transcript
pages 2563-2564. There, in reference to distinctions between positive and negative values
shown on his Table 10 of Exhibit 77, inexact water table projections were acknowledged.

Later, when Figure 20 in Exhibit 104 was the point of reference, the variability of Henszey’s
projections was mentioned again (Tr. pp. 2639-2644). Across the flow range contemplated
by A-17333 (i.e., 2,700 cfs to 5,900 cfs), the precision in predicted ground water levels was
said to be approximately half a foot. During his subsequent rebuttal examination, however,
Henszey indicated the precision of his projections was plus or minus one foot
(Tr. pp. 7376-7377). Either way, it must be concluded that the numerical values contained in
Table 10 of Exhibit 77 should not be viewed as absolutes or even within the one-tenth foot
precision implied by the values tabulated.

The numerical effect of these imprecisions is evident from the exchange found on
pages 7429-7430 of the transcript. Table 10 of Exhibit 77 was the point of reference, and
Henszey acknowledged the numerical precision of his equations for predicting the water table
elevation was plus or minus one foot. Using the June "…Depth-to-Groundwater…" values for
well "CM34-BDD" as an example, Henszey agreed river flow values corresponding to
"the 95 percent confidence interval" would range from 2,283 cfs to more than 9,728 cfs.
That is an obvious and substantial numerical difference in flow values. As an example it further
illustrates the unreliable nature of Henszey’s correlations.

An entirely legal matter receiving attention during the proceedings and in the post-hearing briefs
concerns whether A-17333 is a bona fide instream flow application. Try as they might, the
attorneys were unable to reference statutes or precedent-setting cases which squarely address
that issue. Instead, it appears the answer to the question lies in the evidence, and it derives from
knowing the location of the expected beneficial use. Consequently, because the record very
clearly indicates any claimed benefits would accrue outside and beyond the banks of Platte
River channels, A-17333 must be judged not to qualify as an instream flow application.

Thus, the urgings of Doyle and Orton are well founded, and for both technical and legal
reasons A-17333 should be denied.

Before continuing with examination of the remaining applications, brief attention will be given
to § 46-2,115, the controlling statute. For § 46-2,115, enactment of LB 877 resulted in
amendments to three subsections: (1), (2) and (4). Insertions and strikeouts were employed to
make the changes. The numerical sequence of the five subsections was not altered by LB 877.

Notably absent from LB 877 is instruction mandating the Director’s review be undertaken in the
sequence specified. At least for the purpose now at hand, it is concluded rearranging several of
the subsections would result in a more logical and efficient review of the Commission’s
applications. To that end the applications will first be examined under the provisions of
subsection (2) of § 46-2,115. The examination shall continue next with consideration of
subsection (4) requirements, followed by consideration of the subsection (1) requirements.
Subsection (3) and (5) requirements will round out the task. Left unchanged by LB 877 is the
fundamental requirement that approval of the Commission’s applications can only be given if
conclusions reached under all five subsections of § 46-2,115 are favorable.

The subsequent examination will concentrate first upon technical aspects of the three fishery
applications: A-17329, A-17330 and A-17331. Following that will be an appraisal of biological
and hydrological aspects of the whooping crane application, A-17332. The parties made no
apparent effort to separate particular public interest elements according to the whooping crane
application or to any one of the fishery applications. In like manner a consolidated examination
of all public interest issues will be last and will conclude this examination.

Fishery applications A-17330, A-17331 & A-17332

That fish need certain amounts of water to survive is a fundamental understanding not disputed
by any of the parties. Given the prospective implications of Sections 5, 6 and 7 of the Nebraska
Constitution and the statutory provisions of Section 2 of Chapter 46 (for example §§ 46-204,
46-223 through 46-223.02, 46-234 and 46-235), additional consumptive uses from the Platte
River cannot be ruled out. Thus, granting A-17329, A-17330 and A-17331 would at least afford
a recognized place for fish in the long list of current (tabulated in Ex. 16) and future water
appropriations which are or would be authorized to divert and consume water from the river.
The likelihood of fish mortality would be lessened were the three applications approved and the
Commission given authority to exercise a priority to call out excessive or unauthorized upstream
diversions. On that basis it is judged approval of these three applications is consistent with the
provisions of § 46-2,115(2). Paraphrasing the statute, approval is necessary to maintain the needs
of existing fish species.

While the very existence of river flows is an essential consideration throughout the year, a large
portion of the record concerning A-17329 was devoted to the summer months when elevated water
temperature considerations are of special concern. The discussion began with witness Hutchinson.
According to him the application, at least in part, was proposed as a response to reported fish kills
largely believed to be caused by meager stream flow and associated, elevated water temperature
occurring simultaneously during the summertime (Tr. pp. 802-814, 1252-1259, 1352-1354, 1357
& 1489-1496). Through witness Goldowitz the process of fish mortality during exposure to
elevated water temperature was explained (Tr. pp. 2004-2013). Simply stated, fish die when
exposed to water of elevated temperature. It was said the length of exposure and critical water
temperature varies from one species to another. Whether by exposure to elevated temperature or
due to other factors, Goldowitz also said the repeated loss of larger species, which are longer
lived and reach their reproductive ages more slowly, has adverse implications to the overall
composition of species in the river (Tr. pp. 1998-2003). None of Goldowitz’s testimony was
effectively disputed.

Hutchinson continued by discussing recent research efforts which were directed at establishing
quantitative relationships in the central Platte valley. It was said the results of several inventories
and investigations favorably impressed the Commission staff (Tr. pp. 802-803, 811-815, 868-869
& 1489-1497). In fact particular data and subsequent analysis were employed by the staff in
developing the flow specifications of A-17329 (Tr. pp. 812-814, 868-871, 1365, 1488 &
1545-1546).

As a basic consideration at this point, it is noted the lawyers’ briefs differ sharply over whether a
summertime relationship between river flow and water temperature exists. The evidence, however,
is not divided. Witnesses called by both sides criticized one another’s efforts or the use of certain
data sets (Miller’s criticism of Kenneth Dinan in Ex. 291, for example). But, they all acknowledged
existence of the same, indirect relationship. Experts such as Zander (Tr. pp. 927-1139 & Ex. 39)
and Kenneth Dinan (Tr. pp. 5192-5377 & Ex’s 41, 106, 109 & 547) claimed a comparatively
significant correlation between larger magnitude river flows and reduced water temperature.
Contrary to the urgings of attorneys Doyle and Orton, their clients’ witness, Miller, also
demonstrated existence of the same relationship; albeit to a lesser degree and with river flow
trailing other elements in significance (Tr. pp. 5922-6331 & Ex’s 292, 294 & 338).

Several witnesses called by the Commission expressed opinions that included particular amounts
of water flowing in the river which they believed necessary to maintain water temperature below
lethal levels. Because the existence of a relationship between those two variables was established
through the evidence found in the record, the opinions of those experts are sufficiently anchored
to permit reaching further conclusions here. By drawing from their input to the record, the
minimum rate and timing of flow necessary to maintain water temperatures below lethal levels
for existing fish species [paraphrasing § 46-2,115(4)] can be determined.

For the central Platte valley, which is the scope of A-17329, the experts’ opinions for June, July
and August are not far apart. Zander’s opinion (Tr. p. 987) established the low end of the
range - 900 cfs. Kenneth Dinan’s testimony (Tr. pp. 5257-5258) established the opposite
extreme - 1,200 cfs. Goldowitz’s recommendation (Tr. pp. 2023-2025) falls between, and it
matches the Commission’s request - 1,000 cfs. Based upon the views of these experts, the
Commission’s flow request for A-17329 during June, July and August appears well reasoned,
and it may be judged to be the minimum rate and timing necessary.

For the balance of the calendar year, the staff also recommended 1,000 cfs (Tr. pp. 1249-1250
& 1496-1497). When it came to an explanation of what factors were considered and ultimately
included in that portion of the recommendation, spokesperson Hutchinson was questioned at
great length. By the time he was finished, the list of possible factors was long.

One of them concerned agreements entered into by the Commission and by several municipalities
which operate water supply facilities in the Platte valley (Tr. pp. 890-894, 1259-1270 &
1399-1414). Lincoln, Omaha and Kearney were mentioned in particular. Hutchinson spoke
generally in vague terms, and during the course of his testimony referenced last, he frequently
demonstrated physical hesitation and reluctance when cross-examined by Doyle.

The Kearney agreement was disclosed in Exhibit 429. Its significance to the staff or how the terms
of it might be brought to bear should river flows drop below certain levels seemed unknown to
Hutchinson. His understanding of the Lincoln and Omaha agreements was lacking also. Beyond
those three municipalities, no other agreements apparently exist (Tr. p. 1269). What significance
the staff saw in the municipal agreements and how that influenced its flow recommendations
cannot be learned from the record.

Other factors were also discussed in vague and contradictory terms by Hutchinson. He
acknowledged the Commission staff was inconsistent in its reliance upon certain mathematical
models and other materials. Notwithstanding the statement seen on page 8 of Exhibit 9 and those
heard in his initial testimony (Tr. pp. 660-661, 729, 777 & 781), it appears staff flow
recommendations for only A-17330 and A-17331 were based upon numerical results from the
staff PHABSIM model (Tr. pp. 773-774, 801-815, 817, 868-869, 1176, 1221, 1241-1250,
1329-1330, 1357-1358, 1364-1367, 1497 & 1540-1547). Even though PHABSIM model
results yielded 650 cfs for the September through May period for A-17329, the staff apparently
abandoned reliance upon that model. In fact Hutchinson was heard to say, "We used a variety of
other analyses to select our flow" (Tr. p. 1249).

In conjunction with Exhibit 441, the graphical and tabular results of the staff PHABSIM analysis,
Hutchinson said maximum percent habitat "was considered" in developing flow recommendations
for A-17329 (Tr. pp. 850-855 & 864-865). He did not elaborate further. Recognizing the
maximum value depicted in that exhibit is 650 cfs, "considered but given no weight" seems a more
straightforward description. Unfortunately, better stating Hutchinson’s response to Doyle’s
inquiry does not advance comprehension.

Reasons for deviation from the PHABSIM results were elicited from Hutchinson. In response to
Doyle, several were identified.

The potential impacts of winter time ice was one of them. Concerning the occurrences of ice,
Hutchinson was the only witness heard to give much detail. On the topic of ice impacts, the extent
of his knowledge was admittedly limited (Tr. pp. 817-821, 1241, 1504-1510 & 1521-1539). It
was said he had studied relevant scientific literature. But, rather than supplementing that effort
through dialog with professional colleagues, he merely indicated a brief time was spent listening to
George Ashton, said to be a notable authority. Hutchinson’s field experience was not extensive
either. It consisted of "anecdotal" observations made during ice formation occurrences at several
unidentified locations.

Nevertheless, several of Hutchinson’s remarks suggest the presence of winter time ice was
somehow added to the list of elements which were ultimately factored into the staff
recommendations. That impression, however, was clearly dispelled on pages 820 and 821 of the
transcript. There, he said the staff recommendations were not adjusted for the presence of winter
time ice.

Other factors mentioned as rationale for deviation from the PHABSIM model results were technical
and related to the many mathematical correlations undertaken by the staff. One of them was
consideration of a niche analysis. It was said recommended flows, however, were not adjusted
strictly on that basis (Tr. pp. 834-835). Individual species and life stages also were taken into
account, but those factors played a "relatively, probably minor consideration" in development of
the staff recommendations (Tr. pp. 865-873). The staff’s guild analysis was frequently discussed,
but in the end it was not used as a basis for the recommendations either (Tr. pp. 1364-1365).
The Tennant or Montana methodology was likewise discussed. According to Hutchinson, it too was
not relied upon by the staff (Tr. p. 1384). Statistics related to exceedance levels for particular river
flows were also developed but not used in setting the recommendations (Tr. pp. 1611-1612).

Perhaps Hutchinson was most definitive when he constructed Exhibit 491. In that exhibit the
year-round flow for A-17329 was said to be based upon "professional judgement" (sic). No one
should doubt his sincerity, but considering the potential breadth of that term, reference to it
provides little to further illuminate or even afford helpful inference.

Many criticisms were directed at the staff efforts in developing its PHABSIM model. They will be
discussed in greater detail shortly. At this juncture, however, it is noted one of the more significant
is the lack of study sites used to represent the various channel reaches in the central Platte valley.
According to Exhibit 9, Table A-1 and to witness Payne (Tr. pp. 4880-4884), some 27 miles of the
river were unrepresented by study sites in the PHABSIM model. As a measure intended to correct
that omission, the staff substituted parameters obtained at a study site located elsewhere. Little
more in the way of explanation was offered, and the validity of that maneuver seems questionable.
Thus, even had the Commission relied upon its PHABSIM-generated value of 650 cfs as an
acceptable fall back position for the September to May interval, the study site gap in its technical
foundation would be too great to overlook.

In summary, the record does not permit understanding what the Commission staff relied upon in
formulating its September through May recommendations for A-17329. Perhaps the agreements
with Kearney, Lincoln or Omaha? That seems doubtful. It was not based upon the PHABSIM model,
the presence of winter time ice, results of its niche or guild analysis, the Tennant method,
maximum percent habitat or the flow exceedance statistics. Individual and life stages
considerations went into the mix, but it was said they were not viewed as significant.

Outside of the June through August period, accepting 1,000 cfs as the minimum necessary for
A-17329 requires an act of faith which cannot be papered over by merely claiming "professional
judgement" (sic). The granting of a minimum flow rate for the September through May period must
be tied to more apparent and tangible evidence. The record does not contain it. As a result further
review of A-17329 should be limited only to the three summer months.

In contrast to that application, water temperature during the summer months was not a controlling
factor for A-17330 and A-17331 (Tr. p. 1242). Recalling Hutchinson’s statements already
referenced, in turning now to those applications, only the PHABSIM model results need be examined.
Results of that model were used in developing the flow rates for all 12 calendar months. It was said
all of the other analyses considered by the staff (i.e., guild, niche, exceedance) were used as a
means to verify and confirm the mathematical results of the PHABSIM model (Tr. pp. 790, 864,
882-887, 1242 & 1388).

A PHABSIM model is created with a series of mathematical relationships which ultimately correlate
habitat with river discharge. The model employs field data gathered at transects established within
designated study sites. Study sites are chosen to represent conditions existing within various
reaches. For each transect the particular combination of discharge, depth and velocity permits
mathematical definition of hydraulic components. When combined with suitability curves, which
express preferences of particular fish species, amounts of habitat can be calculated. The computed
amounts vary with stream discharge. A model can be developed for one or several species; that is,
a community (Tr. pp. 191-192, 4629-4632, 7488-7489 & Ex. 526). The Commission staff
PHABSIM model was developed to determine the magnitude of flows needed to maintain a fish
community. The effort was not directed at specification of optimum flows for a particular species.
Instead it was intended to achieve a balance which would afford sufficient flows to maintain all
species which interact and make up the Platte River fish community.

Before discussing results of the staff PHABSIM analysis, it is necessary to comment on its utilization
outside of the Instream Flow Incremental Methodology (IFIM). Conceptually, the IFIM is a negotiation
process in which conflicting interests and those of various disciplines turn to PHABSIM model results
as part of a broader effort aimed at bridging differences and developing mutually acceptable
instream flow specifications (Tr. p. 730). It was generally conceded the staff did not rigidly follow
IFIM procedures in calling together and soliciting inputs from stakeholders prior to developing
specifications for the Commission’s applications (Tr. pp. 730-738). As a technical component of
the IFIM process, the Commission’s opponents contend analytical results coming from a
PHABSIM model cannot stand alone.

It appears these arguments from the Commission’s opponents rest upon a faulty premise. If an
undisputed instream flow application is assumed (in the Platte valley, that’s admittedly hard to
imagine), there would be no opposing sides, and a need to negotiate would not exist. Instead, the
would-be applicant could simply and unilaterally adopt its own PHABSIM-generated specifications.

Whether that is what Payne or Hardy had in mind during their testimony cannot be determined.
According to them the full package of IFIM procedures is preferred by some organizations or people,
but sometimes PHABSIM results are used alone and in the absence of other IFIM components
(Tr. pp. 265-271 & 4623-4629). On that point the record does not contain a contrary observation
expressed by other witnesses.

In that a PHABSIM undertaking amounts to assembly of a complex series of mathematical
relationships made practical through electronic data processing, it is merely a device for making
computations. The observations of Payne and Hardy, therefore, seem quite logical. Consequently,
there is no reason to heed the urgings of Doyle and Orton by rejecting the PHABSIM results
simply because the staff chose not to undertake completion of all components included in the
IFIM process.

In harmony with Hutchinson, whose testimony is seen primarily as a presentation of the staff
PHABSIM model results, witnesses Hardy and Peters provided a technical defense for application
of the model. Witness Payne was the opponents’ principal critic. Among the criticisms he
mentioned were the propriety of using the model in an acknowledged moveable bed environment.
Questioned as well was reliance upon insufficient input data for the model. Staff errors in use of
hydraulic data, combining model outputs and developing suitability curves also were claimed.

Payne’s most fundamental criticism concerned applicability of the PHABSIM model. It was said
those utilizing the model are required to abide by its inherent makeup, which assumes the stream
being examined has a fixed bed (Tr. pp. 4634-4635). At times, however, it is known the Platte’s
sandy bed becomes fluid and quite moveable (Tr. pp. 4636-4637). Banks erode, sand bars form and
disappear, and the thalweg shifts back and forth.

In practice neither Payne nor Hardy seemed rigidly committed to the fixed bed requirement. Even
in a sand-bed setting like the Platte River, Hardy indicated the PHABSIM model is the best available
methodology for quantifying fishery flows (Tr. pp. 244 & 252-254). Payne was not heard to
disagree or suggest a superior methodology. In fact he indicated the PHABSIM model can be
utilized in a moveable bed setting if the stream being examined is in dynamic equilibrium and if
ample data are collected at each study site (Tr. pp. 4821-4822).

Initially, Payne suggested the data presented in Exhibit 541 indicated lower reaches of the Platte
River may not be in dynamic equilibrium. During cross-examination he acknowledged that view
rested only upon two data points, and that it was not possible to determine whether those data
were indicative of a long term trend. He finally concluded he had no basis for disagreeing with
others’ assessments which indicated the entire river is in dynamic equilibrium
(Tr. pp. 4937-4940 & 4986-4987).

Based upon these considerations, it is reasonable to conclude the Platte River is in dynamic
equilibrium. Staff reliance upon the PHABSIM model, therefore, is judged to be a competent and
satisfactory methodology for it to employ in developing fisheries recommendations. Thus, rather
than a challenge to appropriateness of the model, Payne’s remaining criticisms are viewed as his
effort to question the propriety and quality of input parameters and the accuracy of the PHABSIM
outputs.

To account for moveable bed considerations, Payne asserted data should be collected at least six
to eight times at each study site (Tr. pp. 4634-4640, 4691, 4697-4698, 4738-4749, 4769-4773,
4822-4823, 4828, 4943, 4946 & Ex. 534). It was claimed any number short of that would be
insufficient to reliably establish mathematical correlations among the hydraulic components.
Too few measurements also could lead to improperly derived and unsound habitat-discharge
relationships, he said.

Elsewhere in the record Payne was heard to contradict those claims. In absolute terms he said it
is not possible to mathematically calibrate hydraulic relationships among various data sets if the
stream bed configuration has changed during intervals between data collections. Instead, it was
said a researcher must treat each data set independently and rely upon his or her own expertise
when subjectively interpolating between the data sets or extrapolating beyond them
(Tr. pp. 4637-4638, 4831, 4844 & 4887). On that point the record shows agreement by Hardy
(Tr. pp. 7532-7534, 7604-7611 & 7646). Payne added further to the inconsistency of his own
testimony when he said that in order to develop a habitat-discharge relationship it is improper to
combine data sets collected over several years’ time (Tr. p. 4826). Overall, any weight which
might be given to these aspects of Payne’s testimony was severely eroded by these contradictions
and inconsistencies.

Payne continued his criticism of the staff relying upon insufficient data by saying the number of
study sites was too few (Tr. pp. 4690-4696 & Ex. 528). His views were based simply upon the
number of river miles represented by each site. In essence Payne claimed the great distances
between study sites might allow significant details to be overlooked. According to him, the staff
should have established study sites at two mile intervals; in all between 125 to 230 transects
(Tr. p. 4827). Payne provided no further rationale, and he did not show that any of the study sites
employed by the staff were unrepresentative of the river reaches (Tr. pp. 4870-4873).

Based upon his experience as well as examination of aerial photographs and site visits, Hardy
asserted the methodologies used by the staff did not omit important details and provided adequate
representation (Tr. pp. 7501-7510). His remarks are more authoritative and reassuring. They make
Payne’s suggestion of several hundred study sites seem overly meticulous and excessive.

Payne also said the staff improperly weighted equally each river transect (Tr. pp. 4704-4711
& Ex. 529). With a different weighting procedure he claimed a newer habitat mapping
methodology would permit achieving superior results. During cross-examination he agreed the
methodology employed by the staff was widely used by others (Tr. p. 4862). Payne also stated
he had not personally undertaken habitat mapping for the Platte River, and he had no basis to
conclude weighting by the staff was improper (Tr. pp. 4874-4875). He also stated transect
reweighting typically has little affect upon final results (Tr. p. 4874). In response to Payne’s
criticism, Hardy pointed out weighting of the transects shown in Exhibit 529 was varied and
reasserted his belief that the staff weighting was done properly (Ex. 529; Tr. pp. 7512-7518).

Similarly, Payne’s criticism of the staff modeling being faulty due to excessive and improper data
extrapolation is seen as having no consequence. When the data were truncated at 4,000 cfs, he
admitted in reference to Exhibit 536 during cross-examination that the methodology he advocated
would yield essentially the same results as those derived by the staff (Tr. pp. 4734-4738 &
4850-4860). Hardy also convincingly showed that the extrapolations did not significantly impact
the final staff conclusions (Tr. p. 7539).

In part because of an alleged faulty methodology used to adjust for habitat availability, Payne also
claimed the species suitability curves (sometimes called species criteria curves) employed by the
staff were invalid. The curves reflect adjustments and were originally developed by Peters, a
fisheries biologist noted for research of Nebraska streams.

To illustrate his point, Payne prepared Exhibit 527. It compared one of Peters’ suitability curves,
which was used by the staff, with a curve derived from raw field data which was unadjusted for
habitat availability. It was said the staff curve indicated the western silvery minnow prefers silty
substrate settings. In contrast it was pointed out the unadjusted curve indicated western silvery
minnows are mostly observed within sand substrate settings (Tr. pp. 4659-4664 & 4685-4687).

Even though he testified before Payne, Peters’ comments regarding the propriety of making the
data adjustments were responsive, and they are seen as being well founded. In selecting
methodologies for developing suitability curves, it was said fisheries biologists are not in universal
agreement. Consequently, Peters seemed to realize his opinions may be viewed skeptically by others.
Nonetheless, he and his co-workers believe the preponderance of sand substrate in the Platte River
is an overriding factor which justified making their raw data adjustments. Given the dominance of
sand substrate in the Platte, he said it is not uncommon to observe particular fish in sand substrate
settings even though they prefer other settings (Tr. pp. 3598-3604 & 3608-3610).

The essence of Payne’s cross-examination was consistent with Peters’ views. Payne indicated
some 90 percent of substrate in the Platte River is sand (Tr. pp. 4903-4904), and he said data
adjustment is proper (Tr. p. 4907). Faith generally in these aspects of Payne’s suitability curve
views was further weakened when it was acknowledged he was not familiar with Nebraska fish
communities (Tr. pp. 4817-4819), and when he was heard to say he could not dispute Peters’
professional knowledge of the same (Tr. pp. 4508-4909).

As to whether smoothing of habitat-discharge curves was properly done by the staff, Payne said
it was not (Tr. pp. 4764-4770, 4885-4893 & Ex. 535). In defense of the staff’s methodology,
Hardy indicated that smoothing several different curves into one is common practice when
dealing with a moveable-bed river (Tr. p. 7555). Payne’s limited experience severely erodes his
criticism. He claimed only a single experience with a moveable-bed stream. In that case curve
smoothing was unnecessary (Tr. p. 4887).

Amounts of flow passing each side of islands was seen by Payne as another example of staff
model input done improperly (Tr. pp. 4719-4725 & Ex. 532). Where it was known to the staff,
he indicated the true mathematical proportion of flow passing each side of islands was utilized.
At other locations, however, the split was 50:50. Little more was said. A quantified estimate
which might have shed light on the extent of error was not produced by Payne. On balance this
criticism did not demonstrate staff members’ methods of splitting flows around islands
invalidated or even significantly altered their PHABSIM results (Tr. pp. 7524-7531).

Payne noted the staff’s hydraulic modeling sometimes showed "water flowing uphill"
(Tr. pp. 4733-4734). Payne admitted his "flowing uphill" remarks were limited to model output
in the 400 cfs range and not to output at 1,800 cfs (Tr. p. 4850), the amount specified for
A-17330. Hardy’s reaction provides perspective and indicated the staff model results should
not be rejected due to their appearing to show water flows uphill. In his experience Hardy
indicated what Payne noticed is not unusual at the extreme ends of a flow curve and should not
weaken confidence in model results if it occurs only at those margins (Tr. pp. 7533-7537).

Finally, after cataloging all of the errors he believed were committed by the staff, Payne
identified the most significant, corrected the input data accordingly and reran the PHABSIM
model himself. Mentioned was a recalibration of hydraulic data and reworking flow splits
around islands. Using Peters’ data, he also revised habitat suitability curves to eliminate the
bias he believed was due to segregating zero velocity bins. Corrections to improper
normalization of data collected over several years’ time and adjustment for habitat availability
were included also (Tr. pp. 4920-4923 $ 4977-4978). In addition to these input data changes,
Payne also said he faithfully followed all of the other steps employed by the staff.

For the North Bend site, which was the focal point used by the staff in developing its
recommendations for A-17330, Payne’s results are shown in Exhibits 538 and 540. The peaks
on Payne’s curves indicate the maximum amount of habitat coincides with flows ranging from
2,000 cfs for the 1987 data and to nearly 2,500 cfs for the 1985 data. His curves are similar
in shape and configuration to Exhibit 442 which represented the culmination of the Commission
staff efforts (Tr. pp. 4920-4931). If contrasted at the maxima, the numerical difference in the
graphs of Payne and that of the staff is not great. For whatever it is worth, a similar comparison
of PHABSIM results for the central Platte reach (Tr. pp. 4932-4933 & Ex’s. 441 & 572), the
subject of A-17329, is also numerically close. For the Louisville/Cedar Creek data, which was
used by the staff to set the A-17331 recommendations, contrasting Payne’s PHABSIM results
to those of the staff illustrates greater numerical disparity (Tr. pp. 5002-5004 &
Ex’s. 443 & 544).

Payne characterized the results of his modeling efforts as "intermediate work products"
(Tr. p. 4979). It was said they should not be used for establishing the magnitude of Commission
water appropriations. To do so undoubtedly would be inconsistent with the subsequent flow
recommendations of his clients. In respect to that position, his work is viewed only as results
of the test he used to establish claims of inaccuracies and unreliability (Tr. pp. 4726, 4738,
4760 & 4783).

Payne’s fault finding of staff input data and resultant PHABSIM model outputs can be
summarized in these conclusions. For two criticisms, suitability curve adjustments and transect
weighting, his own limited experience prompted him to concede agreement with the respective
views of Peters and Hardy. Payne could claim no personal experience in curve smoothing and
thereby undercut his own base to criticize. Remarks referencing the number of study sites and
the manner in which the staff treated flow distribution around islands amounted to an unquantified
critique. His testimony in that regard might have been more compelling had it included analysis
indicating the extent to which the staff calculations led to distorted recommendations. Adverse
comments regarding data extrapolation and water "flowing uphill" were irrelevant because they
pertained to flow ranges which are respectively much greater or much less than the Commission
flow requests for A-17330 and A-17331. The contradictory and inconsistent nature of Payne’s
adverse testimony pertaining to moveable bed uncertainties and the amount of data which should
be collected at each study site makes his remarks inconsequential.

In the end Payne could not claim the staff’s input data or procedures were wrong; only that there
was an unquantified level of uncertainly associated with the results (Tr. pp. 4736, 4738 & 4783).
Reliance upon his own PHABSIM model outputs was tentative, but even they did not point to wide
deviation at two of the referenced study sites.

Hardy also reran the PHABSIM model. In those situations where he agreed with Payne, input data
were changed. He employed different curve smoothing methods than were used by the staff. Hardy’s
model results for the North Bend site (Ex’s 571 & 572) are similar to Payne’s (Ex’s 538 & 540).
Numerically, they both show maximum percent habitat corresponds to about 2,000 cfs. Based upon
belief that needed input corrections would not significantly alter final results, Hardy did not rerun
the PHABSIM model for the Louisville/Cedar Creek study site (Tr. p. 7578).

According to Hardy, the staff PHABSIM model constituted the best state-of-the-art methodology
for determining needed fisheries flows in the Platte River (Tr. pp. 200, 238, 262-263 & 7579).
In his judgement the staff analysis was "as good as it gets," given current understandings
(Tr. pp. 238-244).

In this dispute of experts, the nod must go to Hardy and Peters. Peters’ extensive experience and
acknowledged expertise of Platte River fisheries was not truly challenged. Hardy’s knowledge of
the PHABSIM model gained from theoretical and field application in moveable bed environments
was broader than Payne’s, and it was solidly based. Both Peters and Hardy possess impressive
academic backgrounds in teaching, research and as members of national and international
organizations. As for Payne, his claims of inaccuracies in the staff PHABSIM model output were
mostly unquantified. Upon reflection, they appear exaggerated and of little significance.

Through the elimination of other possibilities, the opponents’ recommendation of 1,342 cfs for
A-17330 and 1,960 cfs for A-17331 appears to be based upon the Tennant method (Ex. 491).
Exhibit 56 is a copy of the original paper authored by Donald L. Tennant. As can be seen, his method
simply calls for assignment of a particular "narrative description" to various percentage levels of
average annual stream flow. In comparison to the more comprehensive efforts used to develop the
staff recommendations, the Tennant method seems crude, subjective and much less rigorous.

The staff recommendations for A-17330 and A-17331, therefore, rest upon a solid foundation.
The amounts and timing specifications for each were reasonably established. There is no evidence
to suggest the flow and timing specifications were intended as a means to increase the magnitude
or extent of fishery habitat or to cause an increase in the numbers of fish. Neither were they
intended to establish optimum habitat for a particular species. The flow and timing specifications
were intended as a means to maintain survival for the community of fish living in the Platte River.
Therefore, in accordance with § 46-2,115(4) the staff-generated flow rate and timing specifications
may be judged to be the minimum rate and timing necessary for the needs of existing fisheries in
the North Bend and Louisville reaches.

Continuing now with further consideration of the three fisheries applications, attention is directed
to the requirements of § 46-1,115(1). In some fashion the testimony of several experts reference
flows in the Platte River. Two of them, Razavian and Woodward, were qualified as hydrologists.
Their contributions to the record were more extensive and not very dissimilar.

Several relevant exhibits originally entered the record during the testimony of Razavian and
Woodward. Included in those exhibits were tabulations containing historic stream flow records
and statistical data generated from them. The exhibits were organized and prepared to address the
criteria of § 46-2,115(1) as it was then composed. Following conclusion of the Department’s
hearing and enactment of LB 877, which included a significant alteration of § 46-2,115(1), experts
for the parties revised their exhibits. Respectively, Exhibits 573 and 576 are the work of the
Commission and its opponents. Effectively, the two exhibits now substitute for the earlier efforts
of each side.

Generally, the mathematical computations which went into preparation of each exhibit appear quite
similar. As a starting point the exhibits were produced from the records of data collected at
measuring stations in the Platte valley. Although the ending dates for the historical flow records
are not identical, both exhibits employ published data for very nearly the same time period. There
is nothing in the hearing record to suggest either exhibit should be suspect due to unusual climatic
events or other factors.

Of the two, Exhibit 573 is more extensive. It includes statistical tabulations generated from flow
data recorded at three additional measuring stations . . . Overton, Odessa and Duncan. In format
the tabulations of Exhibits 573 and 576 are not entirely identical. But, if examination is limited to
the same measuring stations and to the "Monthly" values found in Exhibit 576, the two exhibits may
be compared directly.

For the four measuring stations related to A-17329, a fatal shortcoming is seen in the analysis for
one of them, the Overton station. Geographically, that station is located in the upstream portion of
the reach contemplated by A-17329. More exactly it lies downstream from the Johnson Power
Plant (J-2) return to the river and upstream from the Kearney Canal headgate (Ex. 9, Table A-1 &
Ex. 16, pp. 169-174). The Exhibit 16 reference also indicates water previously impounded at the
upstream Sutherland Reservoir may be released to and diverted from the river to supplement
natural flow diversions made by the Kearney Canal.

Notwithstanding these facts Razavian said he did not deduct from the Overton data either natural
flow or stored water diversions made by the Kearney Canal (Tr. pp. 617-620). Judging by an
absence of contrary narration in the two-page cover letter accompanying Exhibit 573, the
Commission’s revised analysis apparently did not include such a deduction either.

Exhibit 16 indicates the number of appropriations from the river downstream from the Kearney
Canal is fewer than the number above it. The exhibit also indicates the Kearney Canal holds several
senior appropriations, and it is the most downstream diversion facility of comparably significant
magnitude. At least during the summer when its irrigation appropriations are being exercised,
significant portions of the flow passing Overton maybe appropriated quantities enroute to the
Kearney Canal. Beyond the summer time, the same can be said for Kearney Canal diversions to
generate hydroelectric energy under water appropriations D-1023 and A-1577. To give a better
indication of flows potentially available to satisfy the sought-after requirements of A-17329, the
Commission’s expert should have taken those facts into account when analyzing the Overton data.
For the data from the measuring stations downstream from the Kearney Canal, the omission is
permissible given the comparatively small quantities of appropriated natural flow which may be
included in the records.

In not making adjustments to the Overton measuring station record or otherwise undertaking a
more thorough examination of the river reach above the Kearney Canal headgate, the
Commission failed to carry a necessary burden. That portion of its analysis in Exhibit 573
which pertains to the Overton measuring station data, therefore should not be utilized here.
By implication then, the geographic scope of A-17329 should be limited to the reach
beginning immediately downstream from the Kearney Canal headgate and extending to the
confluence of the Platte and Loup Rivers.

A second potential shortcoming in the A-17329 reach, not explicitly factoring into the analysis
existence of instream flow appropriations held by Central Platte Natural Resources District, was
offset by the manner in which the Commission requested approval of A-17329 and in the format
of the calculations displayed in Exhibits 573 and 576. In effect Hutchinson said the Commission’s
A-17329 request is for 1,000 cfs, less those amounts already appropriated by Central Platte
(Tr. pp. 1598-1599 & 1613-1615). Whether, as required by § 46-2,115(1), the combination of
the Central Platte appropriations and the requested appropriation is available 20 percent of the
time can be determined from the tabulations contained in the two exhibits.

According to Exhibit 16 (pp. 169-180), during June through August Central Platte’s A-17004a,
A-17004b and A-17004c come into full force and effect within the same reach specified for
A-17329. Central Platte’s appropriations have not been forfeited or lost to nonuse, and they
carry a July 25, 1990 priority date. Their purpose is to maintain existing river flows for certain
fish species and macroinvertebrates which are food sources for interior least terns and for piping
plovers. In quantity the District’s appropriations during June through August call for:
A-17004a - 500 cfs, June 1 to June 23; A-17004b - 600 cfs, June 24 to August 22; and
A-17004c - 500 cfs, August 23 to August 31. The balance sought by the Commission’s
A-17329, therefore is: 500 cfs, June 1 to June 23; 400 cfs, June 24 to August 22;
and 500 cfs, August 23 to August 31.

Starting with the Grand Island station, both exhibits effectively indicate the senior instream flow
appropriations of Central Platte and a junior instream flow appropriation belonging to the
Commission could be fully exercised more than 20 percent of the time in June and July
(Ex. 573, Table 13X & Ex. 576, Table 1). At Odessa and Duncan the more extensive Exhibit 573
indicates the same (Tables 7X & 21X). Should further analysis undertaken herein permit it,
A-17329 should be limited to no more than 500 cfs during June 1 through June 23 and 400 cfs
during June 24 through July 31.

For August at the Grand Island measuring station, statistics tabulated in the two exhibits indicate
1,000 cfs is not present 20 percent of the time. Together with Central Platte’s appropriations,
Exhibit 576 indicates only 771.4 cfs passes by 20 percent of the time or more. Judging by
Table 13X of Exhibit 573, however, the 20 percent threshold lies between 800 and 900 cfs.
If the correlation between the values in Exhibit 573 is linear, a flow of approximately 830 cfs
at Grand Island would correspond to 20 percent. At Odessa the same exercise suggests about
785 cfs would correspond to 20 percent. The similarly computed figure for Duncan is 885 cfs.

Whether the statistics displayed in Exhibit 573 are truly linear was not established. Nonetheless,
the numerical difference between the two exhibits is not great. Given the inherent difficulties of
making precise flow measurements in the river and of instituting regulations should the flow
diminish and needs arise, numerically rounding the flow magnitudes to the nearest 100 units is a
practical consideration. Doing so falls within the discretion authorized by § 46-2,115.

Therefore, if the instantaneous rates representing the 20 percent threshold are thereby determined
to be 800 cfs at Odessa and Grand Island, A-17329 should be limited to 200 cfs during the first
22 days of August and to 300 cfs during the remainder of the month. In like manner, the 20 percent
threshold at Duncan is 900 cfs. With that as a given, flow for A-17329 at the Duncan station should
be limited to 300 cfs for August 1 through 22 and to 400 cfs for August 23 through 31. With
reference being made to the Odessa, Grand Island and Duncan measuring stations, conditioning
approval of A-17329 for June, July and August in the manner outlined would eliminate the
"inappropriate overlapping" concern expressed by counsel for the Commission’s opponents.

For the North Bend and Louisville data, Central Platte’s instream flow appropriations do not come
into play. But, Exhibit 573 indicates allowance was made to account for irrigation use by the
recently constructed North Loup Project (also called Twin Loups Project). That Project is located
in the Loup River drainage. Loup River flows geographically enter the Platte River downstream
from the Duncan measuring station. Given the relatively short period of operation by that Project
(Ron Wolf remarks, Tr. pp. 6676-6699) the Commission’s adjustment of the historical data was
warranted. Whether Woodward made comparable adjustments cannot be determined from
Exhibit 576.

Despite that uncertainty, for the North Bend station, both exhibits agree in substance. They indicate
the full quantity sought by the Commission’s A-17330 is present in the river significantly more
than 20 percent of the time (Ex. 573, Table 65Xb & Ex. 576, Table 4). If that application can be
allowed, the year-round flow rate should be limited to 1,800 cfs.

A bit more complexity must be taken into account for A-17331 and its reference to data from the
Louisville measuring station. Subsequent to concluding the evidentiary hearing for the Commission’s
applications, appropriation A-17310 was awarded to the Metropolitan Utilities District (MUD).
MUD’s appropriation authorizes withdrawal of water to satisfy municipal needs in the Omaha
metropolitan area. Its supply is obtained from a series of large-capacity wells located in the Platte
valley a short distance downstream from the Louisville station. In operation the wells induce aquifer
recharge from flows in the river. Corresponding to particular wells in its well field, MUD’s
appropriation carries priority dates ranging from January 1970 to January 1990. Quantitatively,
the MUD appropriation is for 500 cfs.

Following approval of the MUD appropriation, counsel for the Commission submitted without
objection an "Offer of Evidence and Request for Judicial Notice." The Commission’s offer
referenced and included Exhibit 575, which is titled "Summary of Induced Recharge Applications."
Later, all of the parties joined in a "Stipulation for Reopening Record, Submission of Evidence and
Closing of Record." The stipulation referenced a tabulation titled, "Induced Recharge Applications
and Appropriations." The Offer, the Stipulation and Exhibit 575 were formally accepted and received.

It is evident the parties are aware of § 46-2,108(3). The offering, stipulation and exhibit indicate
existence of municipal appropriations is to be a consideration in this ruling. The parties’ efforts to
supplement the record are useful for that purpose.

Out of those listed in Exhibit 575, only the MUD appropriation has been approved. Therefore,
because the 500 cfs MUD appropriation is senior in priority and lies within the river reach specified
for A-17331, the statistical analysis done for the Louisville station (Exhibit 573) should be adjusted
accordingly. With that in mind, the following table, with quantities rounded to the nearest 100 units,
can be developed after noting the 20 percent threshold quantity found in Table 77Xb of Exhibit 573:

If A-17331 can be approved, it should be so limited.

Should the three fishery applications be granted, § 46-231 requires a November 30, 1993 priority be
assigned to each. With that as its authority, the Commission would then hold a right to call out only
those upstream, junior-priority right holders whose actions diminish river flows below the rates and
during the time intervals specified above. As a consequence, there could be no interference to those
holding senior water appropriations.

With apparent knowledge of that rather obvious conclusion, the Commission’s opponents used the
example of two irrigation districts to demonstrate how senior appropriators might still be adversely
affected. General managers Pinkman, North Loup Public Power and Irrigation District
(Tr. pp. 6722-6743), and Wolf, Twin Loups Irrigation District (Tr. pp. 6674-6722), provided
testimony.

From time to time Pinkman said some farmers have cancelled their contracts to receive irrigation
water from his district. Others have shifted production away from lands specifically included under
one of the district’s water appropriations. To keep current with these changes, it was said the North
Loup District acquired new appropriations which are junior in priority to its oldest appropriations
which in turn date back to the 1930’s. Should similar changes continue in the future, it is feared
additional appropriations would not be granted to North Loup if the Commission’s applications
are approved.

Wolf’s perspective was somewhat different. Construction of his district was recently completed.
The district is in an initial development phase, and its experience is not directly comparable to the
older North Loup District. At the time of his testimony, some fields had not yet received water
from the district works. It is believed the owners of other tracts which have been watered with
district supplies may alter their plans and call for deliveries elsewhere. In taking into account the
fluid nature of these activities, Wolf spoke apprehensively. Mentioned were debt obligations to the
federal government and upcoming deadlines for submitting maps and perfecting the district’s
appropriations through demonstrated beneficial uses. If the Commission’s applications are granted
and Twin Loups’ deadlines are missed, it is feared greater uncertainties will exist because the
district may be left with fewer acres it can adequately serve and with potentially greater per acre
expenses for its operations and for debt service.

Pinkman’s concern for rejection of new applications to consume water is speculative. Few things
are forever, but unlike that portion of the Platte River watershed above where it is joined by flows
from the Loup, the lower portion of the Platte and its tributaries (including the Loup) have not
been judged to be overappropriated. With that rationale as a sole basis, applications for new
consumptive uses in the lower portion of the Platte River watershed have not been routinely
rejected. As for the other matters raised by Pinkman and Wolf, Nebraska’s body of water law
contains potential remedies which ought to lessen their concerns. The possibility of formally
sanctioning the relocation of headgates and diversion works is contemplated by § 46-250.
Formally shifting the location of irrigation appropriations from one field to another is permitted
under the provisions of §§ 46-290 through 46-294. With demonstration of diligence, § 46-238
provides for the granting of time extensions to those finding deadlines impossible to meet.

To these examples creative minds will likely expand the list. Given all of that, the issues raised by
Pinkman and Wolf are not dire. Their concerns should not be cause for blocking approval of the
Commission’s applications on account of interference with the exercise of senior surface water
appropriations [§ 46-2,115(3)].

Whooping crane application A-17332

At this juncture the general topic shifts from consideration of the Commission’s three fishery
applications to its whooping crane application, A-17332. Briefly, the Commission seeks the right
to call out junior, upstream users as a means of assuring certain river flows during the spring and
fall when whooping cranes pass through Nebraska during their migrations across the continent.
Channels of the river in central Nebraska are often used by whooping cranes for roosting. More
specifically, the Commission’s goal is to prevent further degradation of roost habitat by
maintaining certain aquatic characteristics within the constraints of present channel morphology
(Tr. pp. 2182 & 2266-2267 & Ex. 12, p. 7). The flow specifications were developed largely from
field observations and from subsequent analysis using a mathematical model.

Whooping cranes are wading birds, and when roosting they do not seek the limbs or branches of
trees. Instead, they nearly always roost in shallow water. In upland areas like the Rainwater Basins,
they have been observed roosting in lakes and lagoons. In the Platte valley, it is reported they show
great affinity for roosting in shallow channels of the river. Reported observations indicate whooping
cranes do not routinely roost in Nebraska. Whooping cranes prefer undisturbed roosting locations
with extensive and unobstructed horizontal visibility which is believed to afford security from
predation. In Platte River channels, roost sites are commonly less than 18 inches deep and are often
near barren sand bars.That brief description can be gotten from the testimony of witnesses
Wingfield (Tr. pp. 2186-2202, 2209, 2354 & 2379), Carlson (Tr. pp. 3764-3765 & 3890-3891)
and Jenniges (Tr. pp. 6550-6552 & 6583) and from Exhibit 12 (pp. 3-4), Exhibit 55 (p. 27),
Exhibit 68 (pp. 6-8) and Exhibit 577. To that description there were no contrary views expressed
by other witnesses, nor can they be read in any of the other exhibits.

By adversely affecting needed wetted width and water depth, additional consumption from the
Platte River would directly compete with existing uses by roosting whooping cranes. In view of
the prospective implications of the State Constitution and the Chapter 46 Section 2 statutes,
specifically referenced previously, the possibility of additional consumptive uses from the river
must be acknowledged. Even though A-17332 would be quite junior in priority, granting it would
at least give existing whooping crane uses a place on the list of current (Ex. 16) and future
appropriators. On behalf of existing whooping crane use, the Commission would be authorized to
call out excessive or unauthorized upstream diversions. Approval of A-17332 would maintain
existing flows needed and used by whooping cranes, and it would be consistent with § 46-2,115(2).

Table 1 of Exhibit 12 and Exhibits 476 and 481 provide undisputed evidence of whooping crane
roosting in the central portion of the Platte valley. Confirmed roostings as early as April 1 and as
late as May 22, in the spring, and between October 13 and November 5, in the fall, are reported.
Although the geographic end points and time intervals of the reported observations do not exactly
agree with the specifications in A-17332, for all practical purposes there is a match. Thus, the
timing and reach specifications of A-17332 are supported by sound evidence.

In contrast to those specifications, the rates of flow chosen by the Commission for its A-17332
was a far more contentious matter. Stating that an appropriation for anything less would result in
further degradation in the availability and quality of whooping crane habitat, the Commission
initially requested 2,400 cfs on a year-round basis (Ex. 12, p. 2). In its subsequent decision, the
fall request was reduced to 2,000 cfs. That willingness to reduce the fall request is somewhat
puzzling in light of the Commission’s stated objective.

In his explanation, Lock said he was given the assignment to develop a biological rationale to
support the amended request for 2,000 cfs (Tr. P. 3171). He referred to Exhibit 12 and noted
only 25 percent of whooping crane roosting occurs in the fall (Table 1), and according to Table 4,
95 percent of the roosting habitat could be maintained with a flow of 2,000 cfs (Tr. pp. 3171-3175,
3324-3326, 3338-3339 & 3429-3432). Based on that rationale, he concluded that 2,000 cfs
would fulfill the purpose of providing whooping crane roosting habitat (Tr. pp. 3174-3175, 3310
& 3316). During cross examination, Lock also indicated autumn roost site characteristics for
whooping cranes are no different than those associated with the spring (Tr. pp. 3317-3318 & 3331).
From all of that, if a particular rate of flow is thought to be sufficient for the autumn time period,
a numerically equal flow ought to be sufficient in the spring. Whether 2,000 cfs during the spring
or fall is the minimum amount necessary awaits the following examination and conclusions.

Two types of analyses were used to support the Commission’s request. Most of the testimony
focused upon a mathematical habitat simulation model which quantified the relationship between
river discharge and roosting habitat. The other merely consisted of examination of flows present
during periods when whooping cranes were known to use the Platte River.

The Commission’s whooping crane model was originally developed by the U.S. Fish and Wildlife
Service and is an adaptation of the PHABSIM model. The whooping crane model combines hydraulic
parameters to relate river discharge with width and depth dimensions believed necessary to satisfy
roosting requirements in each channel reach with a habitat suitability index. In practice the
opponents’ witness Jenniges urged a degree of caution. He claimed inherent errors in measuring
the magnitude of the hydrologic parameters amounts to 10 percent. As a consequence he said there
is no significant difference in the quantity of flow which produces habitat ranging from 90 to
100 percent of optimum. In applying all of that to the data seen in Table 3 of Exhibit 12, he
suggested between 1,600 cfs and 3,300 cfs might be sufficient for achieving the Commission’s
objective (Tr. pp. 6565-6570). No one disputed that portion of Jenniges’ testimony.

The somewhat subjective suitability index is the mathematical product of a wetted width index
value and a percent of optimal flow depth value determined for each transect
(Exhibit 12, pp. 17-18). For wetted widths of 1,000 feet or more, the Commission staff set the
wetted width index at 1.0, the optimum value. Where wetted width was less than 1,000 feet,
smaller index values were assigned on a nonlinear basis (Tr. p. 6570 & Ex. 12, pp. 14-15 & Fig. 1).

While it was agreed a water-filled channel is necessary for roosting habitat, the experts disagreed
over the physical dimensions. Biologist Carlson said 1,000 feet of wetted width is considered
desirable (Tr. pp. 3896-3900 & Ex. 68, pp. 12-13). Carlson and Wingfield attributed that
opinion to the professional judgment of others who have studied whooping cranes
(Tr. pp. 2335-2336, 3906-3908, 3911-3916 & 3922).

Jenniges disagreed. He reported reading nothing in relevant professional literature that mentions a
need for 1,000 feet of wetted width (Tr. p. 6646). Instead, after taking into account several
different data sets, he said in-the-field measurements at known roost sites varied widely but
averaged about 700 feet (Tr. pp. 6554, 6572 & 6629-6630 & Ex’s 479 & 482). Jenniges pointed
out that only two birds were reported to have roosted at sites having a wetted width greater than
1,000 feet (Tr. pp. 6570-6574 & Ex. 479). One of the birds, nicknamed Oklahoma, was observed
on three out of four occasions during the same high flow year and displayed the unusual behavior
of spending an entire winter with a flock of sandhill cranes (Tr. pp. 6573-6574 & 6639-6640).
It was suggested that the roost site characteristics based upon data collection in conjunction with
the two birds may not be representative. Jenniges noted whooping cranes have been known to move
from wide channels to narrower channels, and being free to choose, they have used narrow channels
when wider channels were available (Tr. pp. 6578-6581 & 6647).

Jenniges also suggested persons sometimes confuse or equate unobstructed width with wetted
width requirements. A river channel devoid of dense vegetation would be open to visibility even
though it is not completely filled with water, he pointed out. Jenniges agreed an unobstructed width
of as much as 1,000 feet is important, but he pointed out the index used by the Commission staff
referred only to wetted width (Tr. pp. 6628-6630 & 6660). All else being equal, it is possible
whooping cranes would prefer to roost in a 1,000 feet wide channel, but the Commission’s data and
observations, cited in publications of the U.S. Fish and Wildlife Service, clearly indicate whooping
cranes using the Platte River can and do roost in areas where water filled channels are less than
1,000 feet wide, he said.

Also mentioned in regard to the open-space needs at roosting sites were observations of whooping
cranes seen beyond the confines of the Platte River. Jenniges suggested whooping cranes are
opportunistic. As long as roosting habitat having shallow water and sufficient visibility is available,
he said whooping cranes will roost in a variety of locations (Tr. pp. 6550-6552 & 6577 & Ex. 484).
Wingfield essentially agreed. He mentioned observations reported by researcher Howe and cited in
Exhibit 72. It was reported whooping cranes have been seen to roost in small ponds of less than four
hectares (Tr. pp. 2272-2282 & 2379). In Exhibit 72 (p. 10) it is noted Howe found 40 percent of
the roosting wetlands were smaller than one half hectare. The unrefuted remarks of Jenniges and
Wingfield effectively cast considerable doubt on the propriety of the Commission staff’s wetted
width index.

How to determine the percent optimum flow depth also was cause for extensive testimony. Flow
depth was added to the suitability index (and later to the whooping crane model) using a cumulative
depth distribution function (Ex. 12, Fig. 2). The cumulative depth distribution function was added in
order to recognize the need for both a shallow area in which whooping cranes can stand for roosting
and a deeper area of flow believed necessary for predator protection (Tr. pp. 2325-2326, 3945,
6578-6582 & 6658 & Ex. 12, pp. 16-17).

Support for this aspect apparently rests upon certain data collected at roost sites on the Platte
River. However, Jenniges pointed out many non-riverine roost sites lacked deep water predator
barriers (Tr. pp. 6582 & 6635). He questioned whether whooping cranes are truly sophisticated
and choose their roosting sites based upon an examination and analysis of a range of water depths
(Tr. pp. 6625 & 6658). He suggested the presence of deep water is not necessarily a desirable roost
site characteristic but simply a common characteristic of river channels (Tr. pp. 6582, 6612-6613,
6625, 6634-6636 & 6658-6659). Without more compelling data, the necessity of a deep water
predator barrier is seen as conjecture.

In addition to questions regarding the need for deep and shallow water, the Commission’s opponents
raised concerns about the form of the cumulative depth distribution function. Essentially the
cumulative depth distribution function (Ex. 12, Fig. 2) defines an area or envelope encompassing all
flow depth patterns observed in river transects where whooping cranes have roosted. According to
Carlson, the outer edge of the function does not represent any one transect. Instead, it is the outer
boundary which encompasses a range of ideal transect dimensions (Tr. pp. 3870-3873). In
application the percent optimum flow depth is that proportion of all data points obtained from
measurements made at a particular transect which falls within the envelope depicted in Figure 1 of
Exhibit 12. If all transect data points fall within the area outlined, for example, the transect is given a
weighting of 1.0 (Tr. p. 3900).

Even though sandbars are described as a desired roost site characteristic and were present at 27 of
the 35 roost sites surveyed, Jenniges went on to critically note exposed sandbars were given a
negative value in the staff’s cumulative depth distribution function (Tr. pp. 6583-6585 & 6620).
He also pointed out the cumulative depth distribution function may not be as well developed as
possible because it was based upon field data from only 21 roost sites. It was also said data from
nine of those sites were collected after use by the bird nicknamed Oklahoma. Data from another
seven of the 21 roost sites was collected after use by the two so-called Odessa birds
(Tr. pp. 6614-6615).

Since development of the whooping crane model, more roost site data were collected
(Ex. 12, pp. 9-10). Carlson said he reviewed the new data and concluded the cumulative depth
distribution function did not need modification. His conclusion was said to be based upon the new
data falling within the boundaries (i.e., shaded envelope seen in Ex. 12, Fig. 2) of the cumulative
depth distribution function (Tr. pp. 3886-3888 & Ex. 12, pp. 15-16 & Ex. 482). Wingfield agreed
(Tr. pp. 2360-2361).

Holding an opposing view was Jenniges. He indicated refinements to the cumulative depth
distribution function should have been made. He noted most of the new data graphically plotted
tightly in the upper left portion of the cumulative depth distribution function (Tr. pp. 6594-6596
& Ex. 482, p. 2). Jenniges also questioned whether the cumulative depth distribution function used
by the staff represented the collective opinion of experts. After reviewing relevant literature, he
constructed a theoretically ideal cumulative depth distribution function. As opposed to the perfect
1.0 rating it would receive from the staff appraisal, it was said plotting the newly acquired data on
Jenniges’ theoretically ideal cumulative depth distribution function resulted in a 0.7 rating
(Tr. pp. 6607-6609 & Ex. 452, p. 5).

In earlier cross-examination, Carlson, who from time to time seemed equivocal, evasive and not
always candid, was firm nonetheless (Tr. pp. 3885-3888). He acknowledged the new data clustered
in the upper left portion of the cumulative depth distribution function, but he argued there is no
need to change its nature even if some 100 new data points also clustered similarly. A persuasive
rationale supporting Carlson’s reluctance to alter the cumulative depth distribution function cannot
be found in the record.

Finally, as part of his analysis Jenniges also tested output sensitivity of the whooping crane
PHABSIM model with different inputs from the cumulative depth distribution function (Ex. 554).
He found model output was very sensitive to input changes coming from data which plotted in the
lower portion of the cumulative depth distribution function (Tr. pp. 6597-6599 & Ex. 554).
Jenniges also noted this part of the envelope was largely based upon several deep-water roost site
observations involving only three birds. So that data from each bird’s behavior would be weighted
equally, Jenniges averaged all the roost site measurements collected for the same bird and revised
the cumulative depth distribution function accordingly (Tr. pp. 6591-6603, 6648-6649 & 6647).
When he reran the whooping crane model with his revised cumulative depth distribution function,
he found flows of 1,500 cfs to 1,700 cfs would produce as much roosting habitat as the
Commission staff indicated would result with a flow of some 2,400 cfs (Ex. 554, pp. 3-4).
Jenniges’ results and those of the Commission staff are plotted side by side in Exhibit 554.

Doubts, inconsistencies and conjecture are inherent in the wetted width index and the cumulative
depth distribution function which was used by the staff to determine the percent optimum depth.
The uncertainties were literally compounded when the two elements were multiplied together to
yield a suitability index. On the other hand, Jenniges’ efforts aimed at removing bias appear well
founded, and his findings suggest the staff recommendations for whooping crane roosting habitat
are numerically greater than more careful analysis might support.

In addition to the PHABSIM results, the staff presented and analyzed records of river flow at those
times when whooping cranes chose to roost in the river (Tr. pp. 2232-2240 & Ex. 12, pp. 21-25 &
Table 5). Without the addition of more recent data, flows during stopovers ranged from 506 cfs to
5,150 cfs. Depending on whether only the flow recorded during the first day of a stay was counted,
whether the recorded flow for the first day of each particular roost was counted or whether the
flow recorded for all of the days when roosting occurred was counted, the mean value ranged from
1,591 cfs to 1,878 cfs. In like manner, median values ranged from 1,810 cfs to 2,170 cfs.

Through Wingfield’s input to the record, additional river flow data were added, and the statistical
measures somewhat changed (Tr. pp. 2254-2256, 2294-2300 & 2309 & Ex.’s 478, 479 & 480).
Based upon flow data for only the first day of roosting, mean and median values are respectively,
1,848 cfs and 1,810 cfs. Except to voice objection to the inclusion of certain flow data
corresponding to times when the so-called Oklahoma bird was roosting in the river, witnesses for
the opponents did not take exception to the updated mean and median statistics.

Carlson did not disagree with Wingfield’s statistics either. Instead, he stated that the statistics
reflected only the availability of flows. He claimed the statistics do not indicate the magnitude of
flows preferred for roosting. In order to determine whether whooping cranes preferred a
particular flow, Carlson said it was necessary to compare flows in the Platte River that occurred
when birds roosted to flows that historically occurred during entire migration seasons
(Tr. pp. 3815-3829 & 3934-3936; also Wingfield Tr. pp. 2365-2366). For illustration he
developed the bar graphs seen in Exhibit 483. Employing only first-day-of-roost data from 1974
to 1995, it graphically depicts the ratio of the percent of time whooping cranes have roosted
during passage of certain ranges of flow and the percent of time those ranges of flow were
measured during each irrigation season plotted against various ranges ("intervals" in Carlson’s
terms) of river flow (Tr. pp. 3815-3821 & 3865-3866).

When the ratios are compared side by side, it was said the bars indicating larger magnitude ratios
indicated greater preferences for roosting by whooping cranes (Tr. pp. 3827-3829 & 3936).
For the spring, Carlson pointed out (Tr. pp. 3822, 3827-3829 & 3848), his Exhibit 483 indicated
2,000 cfs to 2,500 cfs was preferable. During the fall interval, preferred flows were said to range
between 1,800 cfs to 2,000 cfs.

Carlson claimed his analysis is often used elsewhere to determine whether animals prefer one
type of habitat over another (Tr. p. 3962). For the record, he was requested to provide a reference
describing his analytical technique (Tr. p. 3963). He said he would, but none was ever received.
Carlson also referred to a Kolmogorov-Smirnov statistical test (Tr. pp. 3853-3854 & 3940),
but he provided none of its results for examination.

As an initial impression, the thrust of Carlson’s analysis resembles the fishery use/habitat
availability work described by Peters. A fundamental difference, however, makes Carlson’s efforts
much different. Very simply, Peters concentrated upon the habitat. River flows, not habitat, was
the focus of Carlson’s effort.

Barring total loss due to a complete absence of river flow, fish are full-time residents of the river.
According to Peters’ research, habitats are selected by fish from a range of available choices.
But, whether river flow is great or small, when whooping cranes arrive in the Platte valley, their
selection of roost sites is based upon a variety of factors. Habitat is only one of them. To a degree
it is directly related to river flow. However, the existence of disturbances, the presence of
predators and local weather conditions may also affect their choices. For reasons having nothing to
do with river flow, they may even choose not to roost on the river. Carlson’s Exhibit 483 isolates
one of the possible factors affecting roost site selection, but within the broader range of
possibilities, it does not point to whether river flow is the most determinative element.

In addition to being fundamentally different than Peters’ work, Carlson’s effort is not reliable for
the purpose he claimed. His analysis did not include a full universe of available data. He only
included flow data for days during migration seasons when whooping cranes were known to have
roosted on the river. Omitted was river flow data for days during migration seasons when
whooping cranes chose not to roost on the river. By analogy, it is theoretically and
mathematically incorrect to claim a coin is "loaded" if it is only known heads were tossed 100
times. Only if the number of times tails was tossed is known can the claim be dismissed with any
level of certainty.

If laid side by side the independent work of Jenniges and Wingfield yield results which are not
far apart. After Jenniges revised the cumulative depth distribution function and made other
refinements, it was said the PHABSIM models indicated optimum habitat was created by flows of
1,700 cfs. Wingfield added recently collected data to older records and computed flow statistics
during roosting. In magnitude his results amount to about 1,800 cfs.

Jenniges suggested the minimum extent of habitat necessary for existing uses could be determined
from computed optimum levels by discounting for the errors inherent in the hydraulic parameters.
Applying his recommendation to the computed optimum number of habitat units yields a
corresponding 1,350 cfs, the flow value urged by Doyle and Orton. Recalling that there were no
objections to Jenniges’ error analysis, the record supports judging his recommendation to be
sound and reasonable. With the evidence at hand, 1,350 cfs is therefore concluded to be the
minimum rate necessary for A-17332.ä

With that conclusion having been reached, the requirements of § 46-1,115(1) are next to consider.
As a means for making the necessary assessment, the statistical analyses contained in Exhibits 573
and 576 were provided by the parties (see page 15 of this ruling for additional discussion of those
exhibits). For the reach specified in A-17332, statistical analysis based upon records from three
measuring stations were provided by the Commission. Statistical analysis based upon data from
only the Grand Island station was provided in the opponent’s Exhibit 576.

On pages 15 and 16 of this ruling, existence of a fatal flaw in the Overton analysis was discussed
in conjunction with one of the Commission’s fishery applications. In essence, failure to make
proper allowance for the passage of appropriated natural flows and previously impounded supplies
passing the Overton station enroute to the Kearney Canal necessitated a disregard for that portion
of Exhibit 573. For the same reasons discussed there, that portion of the Commission’s analysis,
which is based upon the Overton measuring station data, should not be used here as a means to
quantify the 20 percent threshold value for the whooping crane application. Also for the same
reasons as before, the upstream geographic extent of A-17332 should be set at a point
immediately downstream from the Kearney Canal headgate and diversion dam. No other defects
in the Commission’s Exhibit 573 are seen to exist.

Like the fisheries applications, Hutchinson’s remarks (Tr. pp. 1598-1599 & 1613-1615)
indicated the Commission did not, in and of itself, intend to seek the full amounts identified in
A-17332. Effectively in partnership with the Central Platte Natural Resources District
appropriations for whooping cranes, the Commission’s applications were intended only to achieve
the flow levels specified.

After taking into account all of that, consulting Exhibit 16 (pp. 169 & 172) to determine the
magnitude of Central Platte’s appropriations, and recalling the "minimum necessary" conclusions
discussed earlier, the following table can be developed as a means to specify the potential
maximum magnitude of the Commission’s applications:

According to Exhibit 573, Table 16X and from Exhibit 576, Table 2, 1,350 cfs is present in the
river at Grand Island more than 20 percent of the time. Exhibit 573 is more extensive than
Exhibit 576, and for the Odessa station, its Table 9X permits reaching the same conclusion.
Thus, if A-17332 ultimately can be approved, it should be limited to the amounts and time periods
seen in the tabulation above. Conditioning approval of A-17332 in such a manner would eliminate
the "inappropriate overlapping" concerns of attorneys Doyle and Orton.

Should A-17332 be allowed, the Commission would hold an appropriation assigned a
November 30, 1993 priority date. Only appropriations upstream and junior to that date could be
called out and denied their right to function.

The intended geographic location of A-17332 in the central Platte valley is upstream from the
junction of the Platte and Loup Rivers. Uses of water in the Loup River basin could not be
impacted by the Commission’s exercise of a priority right for whooping cranes. Thus, the
concerns of Pinkman and Wolf are irrelevant to A-17332, and the record contains mention of no
other extenuating circumstances to weigh. Consequently, it may be concluded granting A-17332
would not result in interference with senior priority appropriators.

Public Interest

Before taking up other elements in the body of evidence, Exhibits 7 and 8 and a "Motion for
Conditions" filed by the Commission’s opponents is worthy of initial discussion. Exhibit 7 is a
copy of the official minutes, setting down actions of the Game and Parks Commission at a
July 19, 1996 meeting. Among other things, the minutes indicate the Commissioners directed
their staff and legal counsel to request certain so-called public interest exemptions, spelled out
in Exhibit 8, be implemented by the Director of Water Resources. It was suggested the
exemptions be instituted by attaching particular terms or conditions to the approval of the
Commission’s applications; through subordination of the appropriations; or, presumably prior
to initiation of the September 25, 1996 hearing, through amendment of the applications.

Exhibit 8 appears generally to be the Commission’s attempt to reduce or minimize the effect
its would-be appropriations might have upon the activities of others. Hutchinson indicated he
was its principal author (Tr. pp. 669 & 888-889). Nonetheless, his extensive testimony
indicated little understanding of how its terms were supposed to work. Having personally seen
and heard his testimony, Hutchinson’s frequent, awkward and extended pauses, especially
during cross-examination, added to the overall uncertainty created by the contents of his
remarks (Tr. pp. 669, 889-912, 1397-1424, 1427-1454 & 1613-1624).

Beyond only general impressions, the record does not permit better comprehending what the
Commissioners intended with their Exhibit 8 directive. As a result, the exhibit lacks clear
meaning. For the immediate purposes at hand, therefore, Exhibit 8 may be disregarded.

The opponents’ "Motion for Conditions" was filed prior to enactment of LB 877. Most of the
elements in the motion correspond directly with provisions in Section 1 of LB 877. Several
others appear to be agency rule-making suggestions. If implemented, another of them,
element I.B.4., might run afoul of due process considerations.

In large measure the elements of the opponents’ motion were adopted into law through LB 877.
There is no compelling evidence suggesting a need to disregard the provisions of LB 877 and
in their place substitute the provisions seen in the motion. As a consequence, the opponents’
"Motion for Conditions" need not be made part of this public interest review.

In their brief filed subsequent to the hearing, Doyle and Orton discussed collectively a variety
of issues raised during the proceedings. Alternatively, Confer’s initial post-hearing brief
separated the issues according to the categories designated in subsections (1) and (2) of
§ 46-2,116. Because Confer’s separation of issues is consistent with the clear direction seen
in that statute, this review will follow his guidance.

Several witnesses discussed the possible instream worth of the Commission’s applications.
While he did not express it in precise dollar terms, agricultural economist Young pointed to
expected positive intrinsic environmental benefits and to the likelihood of enhanced recreation
and preservation values (Tr. pp. 2394-2403 & Ex. 17, pp. 25-27). To the extent it is difficult to
quantify economic values corresponding to the Commission’s applications, Harvey
(Tr. P. 7120) and Supalla (Tr. p. 7237 & Ex. 232) were heard to agree. As opposed to
"monetizing" benefits associated with required instream flows, Supalla explained the basic
methodology for economists is to treat them as constraints needing to be met (Tr. p. 7273).
Holland claimed no credit for predictions, but his surveys were quantified. They suggest
considerable economic value stems from current fishing, hunting, boating and other outdoor
uses associated with the Platte River (Tr. pp. 4057-4151 & Ex. 28).

Sociologist Allen referenced past surveys done by researchers at the University of Nebraska,
Bureau of Sociological Research (Ex’s. 18 & 19). According to the results of their work, it
was said residents of the state place high value on recreation and environmental qualities.
Allen said results of a more recent survey he conducted were consistent with the earlier
efforts (Tr. pp. 2881-2921 & 2993-3001).

Even though Allen’s response (Tr. p. 2925) to Orton’s inquiry concerning certain
"secondary data" is somewhat troubling, the bulk of his testimony relevant to § 46-2,116(1)
went undisputed. That the majority of people in Nebraska generally have positive attitudes
toward environmental issues and would view favorably the Commission holding
appropriations for instream flows seems undeniable.

Four witnesses familiar with the design and operation of municipal water systems in the Platte
valley indicated approval of the Commission’s applications would result in an incidental benefit.
Miller, speaking with reference to Kearney (Tr. pp. 4153-4261), and McCafferty, with
reference to Fremont (Tr. p. 4363), said appropriations held by the Commission would sustain
flows necessary for the recharge of aquifers tapped by those communities’ wells. Prior’s remarks
(Tr. pp. 5591-5608) concerning Wood River and Central City were broader in sc