Sec 45-256. Technical assistance of director; report

A. The court or the master shall request technical assistance from the director in all aspects of the general adjudication with respect to which the director possesses hydrological or other expertise. In rendering such technical assistance, the director shall expeditiously:

1. Identify the hydrological boundaries of the river system and source and the names and addresses of all reasonably identifiable potential claimants. In identifying potential claimants, the director shall, at a minimum, identify as far as reasonably possible the current record owners of all real property within the geographical scope of the adjudication.

2. Locate, procure and make available all public and other records relevant to determination of any factual or legal issues.

3. Conduct a general investigation or examination of the river system and source.

4. Investigate or examine the facts pertaining to the claim or claims asserted by each claimant.

5. Identify those water right claims or uses within the river system and source that are de minimis uses as prescribed by section 45-258.

6. Make a map or plat on a scale not less than one inch to the mile adequate to show with substantial accuracy the course of the river system and source, the location of the ditch or canal diverting water from such river system and source, and the legal subdivisions of lands which have been irrigated or are susceptible to irrigation from the ditches and canals already constructed. Unless a prior decree provides otherwise, irrigation water quantities shall be assigned in the director's report based on the following on-farm water duties:

(a) A water duty of six acre-feet per acre per year for lands located below three thousand feet in elevation.

(b) A water duty of five acre-feet per acre per year for lands located from three thousand feet through five thousand feet in elevation.

(c) A water duty of four acre-feet per acre per year for lands located above five thousand feet in elevation.

Transportation losses from the point of diversion to the field shall be in addition to the on-farm water duty determined pursuant to this paragraph. Irrigation water quantities that are assigned by the director as prescribed by this paragraph shall be presumed correct by the master and the court and shall be incorporated in the decree, unless rebutted by a preponderance of the evidence offered by a claimant who has made a proper objection under subsection B of this section.

7. Identify water quantities for diversions and reservoir facilities. Unless a prior decree provides otherwise, the rate of water diversions shall be measured by the maximum theoretical capacity of the diversion facilities, and reservoir storage quantities shall be identified based on the maximum controlled capacity of the reservoir. Water quantities for diversions and reservoir facilities that are assigned by the director as prescribed by this paragraph shall be presumed correct by the master and the court and incorporated in the decree, unless rebutted by a preponderance of the evidence offered by a claimant who has made a proper objection under subsection B of this section.

8. Take such other steps and gather such other information as may be necessary or desirable for a proper determination of the relative rights of the parties.

B. The technical assistance rendered by the director shall be set forth in summary form on a claim by claim basis in a report prepared by the director and filed with the court or the master, which shall then be available for inspection by any claimant. The report shall list all information that is obtained by the director and that reasonably relates to the water right claim or use investigated. The report shall also include the director's proposed water right attributes for each individual water right claim or use investigated as prescribed by this article. If no water right is proposed in connection with an individual water right claim or use, the director's recommendations shall so indicate. Any claimant may file with the court or the master written objections to the report or any part of the report within one hundred eighty days of the date on which the report was filed. An objection shall specifically address the director's recommendations regarding the particular water right claim or use investigated. The court or master shall summarily dismiss with prejudice objections that do not comply with this subsection. Each claimant who has filed timely written objections that comply with this subsection shall have a fair and reasonable opportunity to present evidence in support of or in opposition to those recommendations of the director. Any claimant may present evidence in support of the claimant's claim.

C. Those portions of the report that do not contain the director's recommendations for the water rights claims and uses investigated shall not be summarily admitted into evidence but may be offered into evidence for any purpose relevant to the determination of a water right claim or use that is subject to adjudication. The appropriator and any other claimant who has filed an objection to the water right as prescribed by subsection B of this section shall have a fair and reasonable opportunity to present evidence in support of or in opposition to those portions of the director's report before the conclusion of hearings on the water right. If admitted into evidence over an objection, those portions of the report shall not be given any presumption of correctness.

D. Information that is included in the director's report and that describes a water right claim or use of five hundred acre-feet or less per year for any type of use claimed shall be summarily admitted into evidence. If no conflicting evidence is offered, the director's proposed attributes of the water right shall be deemed correct and incorporated into the decree. If conflicting evidence is presented, the director's proposed attributes of the water right shall be given the weight deemed appropriate by the master and the court consistent with this article.

E. Information that is included in the director's report and that describes a water right claim or use of more than five hundred acre-feet per year shall not be summarily admitted into evidence. If offered into evidence and if admitted over objection, it shall be given no presumption of correctness.

F. Claimants who are in agreement with those parts of the report that describe the claimants' water right claims or uses are not required to file objections to the report and may rely on the report as evidence of their water right. If the owner of a water right claim or use provides evidence in support of the report, that evidence shall be presented after all evidence has been introduced by the objectors.

G. On request of any party, the director shall present evidence concerning the facts stated in the report. Nothing in this section shall be construed to prevent the court or the master from issuing a protective order on a showing of good cause.

H. Prior to filing the report with the court or the master as provided in subsection B of this section, the director shall prepare a preliminary report. The director shall give notice to each water claimant that the preliminary report is available for inspection and comment. Upon expiration of the period provided for timely comment, the director shall revise the preliminary report as may be appropriate and shall file the report with the court or the master in accordance with subsection B of this section. At least one hundred twenty days before the final report is to be filed, the director shall file with the court a notice stating the date on which the final report is to be filed. The director shall adopt such rules as may be necessary to ensure that adequate notice is given, that the preliminary report is sufficiently available for inspection by the water claimants and that provisions are made for adequate time and procedure for comment on the preliminary report.