Sec 37-1154. Public improvements in beds of navigable watercourses; definition

A. A determination that a watercourse is navigable does not affect the right of a public entity to own, operate, maintain or repair a public improvement reasonably constructed in the bed of the watercourse under the public entity's powers if the improvement was constructed before the determination that the watercourse is navigable and does not materially impair the public trust. The public entity is considered to have obtained this state's consent to construct the public improvement and is not liable to pay compensation to this state for the land on which the public improvement is constructed if the improvement does not materially impair, obstruct or destroy the function of the watercourse for public trust purposes.

B. If the commissioner determines that the public improvement described in subsection A of this section does not, or will not if appropriate conditions are followed, materially impair the public trust uses, the department may require the public entity to obtain a permit for the improvement pursuant to section 37-1153 but shall not assess any fee for issuing the permit.

C. At least thirty days before issuing a decision under subsection D or E of this section the department shall provide written notice of the proposed action and an opportunity to comment to any person who has previously requested notice of actions under this section. The department shall provide contemporaneous written notice of the final decision to any person who filed a comment.

D. If the commissioner determines that the public improvement described in subsection A of this section destroys the function of the watercourse for public trust purposes and is not in furtherance of the public trust status of the land, the public entity may petition the department for release of public trust status pursuant to section 37-1151. In evaluating the petition, the department shall consider, in addition to the factors prescribed by section 37-1151, whether constructing the public improvement was undertaken pursuant to the public entity's authority and whether the public improvement continues to serve a public purpose.

E. If the commissioner determines that a release is appropriate under subsection D of this section, the public entity may purchase this state's interest in the land without a public auction by paying an amount to be determined by the department pursuant to section 37-1152 directly to this state pursuant to section 9-401, subsection A, section 11-251, paragraph 45 or section 48-3603, subsection C, paragraph 2, as applicable. No cause of action or claim for reimbursement accrues for the benefit of any public entity that exercises its right to purchase this state's interest pursuant to this subsection.

F. For purposes of this section, "public improvement" includes any facility established, constructed or maintained by a public entity pursuant to law and those works described in section 37-1101, paragraph 4.