State water law shifting toward local regulation

LINCOLN, Neb. -- Having enough water is an increasingly important issue for Nebraska farmers and city dwellers alike, but regulating water use is not something new for state policymakers.

Nebraska has a long history of water law, and with the complex interplay of water rights, recent droughts and continued legal pressure from Kansas over the Republican River, state water laws have gone through many changes, with an increased emphasis on local control of water management.

Nebraska's water law history began with surface water. In 1895 Nebraska created a "first in time, first in right" rule, which was designed to promote settlement in the state, said Dean Edson, executive director of the Nebraska Association of Resources Districts.

While governing water rights was first established for surface water, groundwater beneath the surface soon became of increasing importance as irrigated agriculture grew. The majority of Nebraska's approximately 10 million irrigated acres comes from groundwater, and the expansive Ogallala Aquifer is critical for farmers in the western part of the state.

"Nebraska is the Saudi Arabia of groundwater," said Dave Aiken, University of Nebraska-Lincoln professor and water law specialist.

Groundwater regulation began with the concept of correlated rights, which allowed landowners to extract water from the ground for a beneficial purpose. With Nebraska's deep and expansive source of groundwater in the Ogallala Aquifer, having enough of it was never an issue for most farmers, as they could drill deeper when they needed more water, Aiken said.

But, given the value and necessity of these water sources, over time the state began to recognize the need for more water management. This led to the establishment of 23 Natural Resources Districts (NRDs) with the passage of the 1975 Groundwater Management Act. Instead of being divided along political subdivision lines, districts were established according to river basin boundaries so water and natural resources in each area could be better managed depending on their needs, Edson said.

"We're so diverse in this state that we don't have a water policy to implement that would be one-size fits all," said Edson, whose association represents all 23 NRDs.

Three years later, the state gave the districts legal authority to regulate groundwater, and in the mid-'80s districts were required to develop management plans for water quantity and water quality.

While Nebraska had begun to regulate groundwater, little had been done with regulating surface water use. This started to become an issue as more people realized the interconnectedness of groundwater and surface water. About half of the stream water flow in Nebraska can be attributed to groundwater, Aiken said.

"If groundwater was red, all the streams in Nebraska would be pink," he said.

The relationship between groundwater and surface water regulation can become particularly problematic when water sources flow between states, such as in the case of the Republican River, which flows through Colorado, Nebraska and Kansas.

Nebraska officially recognized the surface water and groundwater relationship with 1996 legislation, and more joint regulation of surface water and groundwater started to take shape in the early to mid-2000s with the creation of the Water Policy Task Force, which was established to address how to manage both water systems.

Legislation passed soon thereafter allowing NRDs to take annual assessments of all the watersheds in Nebraska and designate their water as fully, under- or over-appropriated. Depending on the NRD, certain regulations would kick in if a watershed was fully or over-appropriated, Edson said.

This new authority gave greater control to the NRDs instead of the state determining much of the water regulation.

"Even though we were given the authority to regulate groundwater back in the '70s, we didn't really get all of the authorities we have today right away; those got piecemealed in," Edson said

The most recent change relating to state water law took place earlier this year when the legislature established a Water Sustainability Fund, which authorized increased state support for NRD projects related to integrated management of groundwater and surface water, among other provisions.

Both Aiken and Edson said they don't expect any major changes to Nebraska water law in the near future. But the demands on water related to climate change and an increasing population may continue to put pressure on the NRDs and lawmakers to come up with new ways to protect Nebraska's valuable water supply.

"There will be issues, but I think that we'll be able to handle it," Aiken said.