Friday, October 19, 2012

Surface Water and Groundwater Regulation

In Nebraska, Conflict Develops Over Water Appropriations both Above-ground and Below
By Aaron John

Nebraska is not only in a conflict over water with other states, like Kansas and Colorado, but there is also conflict within the state over water appropriations.  Groundwater and surface water users are finding themselves in a fight over who has claim to Nebraska’s water resources.  Irrigation water is an essential element of the Nebraskan economy and some irrigators are feeling like the water has been taken literally right from under their feet.

As Nebraska water regulation developed there was little need to regulate groundwater use until 1949 when a Texas farmer changed the whole agriculture economy.  That year, Frank Zybach invented a new way to distribute water to his farm fields known as center-pivot irrigation.  This revolutionary new tactic made it possible for farmers to water crops using a groundwater well even when the field was not close to a stream or irrigation canal.

Through the proliferation of center-pivot irrigation systems in Nebraska and the lack of an adequate mechanism to reconcile the two systems or water use, Nebraskan farmers are finding out that water use doesn't always abide by the legal framework legislators attribute to watershed management.

Under Nebraska law, surface water users, those that use the water that is above ground, are regulated under a “first in time, first in right” system known as the prior appropriation system.  A prior appropriation system regulates water users by the date in which they obtained a permit to use the water.  As long as the water is being used for the same purpose, like agricultural irrigation, than the user with the most senior use permit is allowed to divert enough water to satisfy the limits of their permit.

The prior appropriation system is limited by three main distinctions. First, the system only applies to natural streams of the state and does not include drainage ditches.  Secondly, differing uses of water are governed by a priority system whereby water used for domestic use carries the highest priority.  After domestic use, agricultural uses take precedence over industrial or manufacturing uses.  Finally, the prior appropriation system applies only to surface water users and not groundwater users.

Groundwater users, those that pull water up from below the surface, are regulated by a reasonable use system.  Much like the surface water system, groundwater use gives first preference to domestic water users over agricultural users.  Although, when two agricultural groundwater users are in conflict, the rule of reasonable use regulates their consumption.

The tension between the prior appropriation and the reasonable use systems develops when hydrologically connected groundwater and surface water becomes over appropriated.  In some areas of Nebraska, farmers are finding out that when a groundwater well is situated close enough to a river basin the well begins to pull subsurface water from under the basin and causes the surface water to fill in this depletion.  Surface water users are claiming that groundwater wells are literally taking the water right out from underneath their feet.

Surface water users are calling for a regulatory system recognizing the need to address hydrologically connected watersheds.  Currently, the Department of Natural Resources regulates surface water use and Natural Resource Districts regulate groundwater use.  Surface water users are claiming that there needs to be a regulatory system that will ensure that their own water supply is not being taken from them while ensuring that both groundwater and surface water users are able to use water resources efficiently.   

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