State policies muddy water regulations

Thursday, September 25, 2014

LINCOLN, Neb. -- With ongoing summer droughts in many states across the country, water scarcity continues to be a threat, shifting water regulation policies in some states to focus on more local management plans like Nebraska has.

Nebraska's system of regulating water is managed at a local level with its 23 Natural Resources Districts (NRDs). The NRDs are divided by river basin boundaries and have legal authority to create water regulation policies within each district. Nebraska's system is unique compared to other states because of the way boundaries are drawn and the significant legal authority NRDs are given, said Dean Edson, executive director of the Nebraska Association of Resources Districts.

In contrast to Nebraska's local-level system, many other states have water laws controlled at the state level or are beginning to change their water laws in response to increasing concerns. A number of factors can affect water regulation in a state, such as number of irrigated acres, population size and how much water the state has.

"When you look at the states that actually have the groundwater, they all have less regulation than the states where the groundwater is really scarce," said Dave Aiken, University of Nebraska-Lincoln professor and water law specialist. "And so the states where it is really scarce, they regulate the most, because it is so scarce."

This differentiation in water law is especially apparent between the western and eastern halves of the United States.

In the eastern U.S., most states follow a riparian rights system, which allows only those who border streams or water basins to use the water from that source. In certain cases these water users can divert the stream flow if it doesn't harm anyone else and the use is reasonable. During times of water shortage, lawsuits often arise over whose water use is reasonable and whose is unreasonable.

In a few other eastern states, water use is governed by water permits. All high-volume users must obtain water permits, and during times of water shortage, how much water they take can be regulated if their water uses aren't for cities or homes.

While riparian rights and water permit laws govern water use in most eastern states, the situation becomes much more complicated in the western states, many of which are top agricultural producers. In Nebraska and these other states, irrigation is a big source of water consumption and is essential for many farmers.

"We've got a robust irrigated ag economy," Edson said. "If you didn't have irrigation you'd lose billions in economic activity."

Along with Nebraska, Texas and California are two other top western states that have large sources of groundwater and rely heavily on irrigation, Aiken said. California in particular is in the middle of one of its biggest water debates after a number of drought years. For a state that produces nearly half of the fruits, nuts and vegetables grown in the U.S., protecting the diminishing water supply has forced lawmakers to pass tougher groundwater regulation.

"They've taken a step in the right direction," Aiken said.

Previously, most of California's groundwater regulation had developed out of lawsuits and there were still no real restrictions on groundwater pumping, Aiken said. The new law, passed earlier this month, requires local and state agencies to develop management plans and gives them the power to restrict groundwater pumping.

This shift toward state and local regulation in California is something Edson and Aiken say has already taken place in Nebraska for many years with its Natural Resources Districts.

"We're 42 to 43 years into water management; we're ahead of the curve," Edson said.

Also similar to Nebraska's water management approach, water regulations in Texas are determined at a more local level with Texas Underground Water Conservation Districts. Unlike Nebraska's system however, these districts are determined by county boundaries and have more strict state supervision.

Texas, Nebraska and many other western states share other similarities in surface water management with a prior appropriation system that grants a "first in time, first in right" basis for surface water rights. Those who obtained their rights earlier have priority for their water rights.

Despite some similarities, specifics of the prior appropriation system and developing water management plans continue to vary from state to state, making the issue of how to address water management a difficult one for lawmakers across the country.

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