By Seanica Reineke
"Nebraska has a lot to offer in terms of not only our water resources, but also the variety of different things that you can see across the state in terms of institutions, laws, integrated management, crop production methods and irrigation methods," said Anthony Schutz, assistant professor in the University of Nebraska College of Law, "which is important in growing more food with less water."
Without water laws, there's no "particular right to use water, and because water's so necessary, you have to have protection of the rights you do have in order to fulfill your needs," said Schutz. Since Nebraska is a state that relies heavily on water for agricultural irrigation, Schutz said many Nebraska lawyers spend time dealing with water law, and it is something Nebraskans especially should care about. "Without water law, there's nothing that ensures the presence of that water. If you don't have that, then it's hard to care about much else," Schutz said.
Schutz said Nebraska's water situation is unique for a couple of reasons. One, it overlies the Ogallala Aquifer. People continually learn more about the aquifer, including management techniques related to both the groundwater and stream flow. He said the aquifer is a dynamic system that changes across the state. It is a porous structure with water flowing in and out naturally, Schutz said, adding that water also is withdrawn, primarily for agricultural irrigation, but also for other purposes.
"There are areas where we've used water in storage in the aquifer and haven't replaced it," Schutz said. "It's in the western regions of the state you can look at groundwater depletion maps, or things along those lines, that give an indication of how much the static water level has dropped over time. In other parts of the state, though, we've drastically increased the amount of water in storage." He said one area where aquifer water storage has increased is the groundwater mound under the Central Nebraska Public Power and Irrigation District's facility near Holdrege.
Nebraska is unique, too, because of the wide fluctuation in rainfall from the East to the West, according to Schutz. The eastern region gets around 30 inches of rainfall annually and the western region around 10 inches annually. Schutz said there's as much variability in rainfall across the state of Nebraska as there is from Omaha to Washington D.C. For these reasons, Schutz added, water law is necessary to protect the limited resource, foster investment and resolve conflicts.
What is Water Law?
Water law is regulation by the local, state and federal governments and encompasses protection of water quality, protection of water quantity and resolution of conflicts. Nebraska's first water law was adopted in the 1880s, and by 1894, the state adopted the Irrigation Act. At that time, Schutz said, there wasn't much groundwater use compared to the usage today. He also said it was harder to tell how much groundwater was available than it was to determine the amount of surface water available. It was important to learn how the resource behaved and how to manage it, Schutz said.
At that time, Nebraskans were just beginning to understand how that aquifer water was distributed, stored and moved underground. "The combination of a huge supply, as well as the uncertainty associated with how that supply behaved, led to significant delays in adopting water laws," Schutz said, "and ultimately led to the adoption of markedly different regimes for surface and groundwater."
Local, State and Federal Laws
Local, state and federal government departments and divisions regulate various measures of water law. One main law today is the Clean Water Act, which establishes the structure for regulating discharges of pollutants into United States waters and regulates the quality of surface waters. The Department of Environmental Quality (DEQ), Department of Natural Resources (DNR) and Natural Resources Districts (NRD)- which are state agencies- all have particular measures to regulate. The DEQ enforces state and federal quality protection measures, dealing with both surface and groundwater. The DNR regulates surface water quantity and NRDs regulate groundwater quantity, to ensure an adequate supply of water is allocated among its users.
The primary role of water law is to assure that people will have water, making sure it's a reliable resource for everyone. For example, if a river has multiple appropriations, the law sets rules to resolve conflicts and makes sure people have a predictable supply of water in certain situations, called prior appropriation. "If they have that reliable source of water, then they're apt to make investments, for example, in developing agricultural lands," said Schutz.
Water Law's Impact on Nebraska Agricultural Production
Near Nebraska's Blue River Basin and Platte River Basin, there are regulations specifying when fertilizers can be applied because of groundwater quality concerns. Schutz said agriculture generally has relatively few point sources of water pollution. Point sources, such as concentrated animal feeding operations, are required to have a permit, Schutz added, but crop production doesn't include point sources. He said non-point source pollution is the most difficult problem facing water quality today. Non-point source pollution is defined as pollution that comes from a variety of sources, both rural and urban, but may be as a result of runoff from agricultural lands, such as nitrogen and phosphorus.
"The Gulf hypoxic zone is primarily due to agricultural production in the United States," said Schutz. The hypoxic zone is an area along the coast of Louisiana and Texas in which water at the bottom of the Gulf of Mexico holds less than two parts per million of dissolved oxygen, which causes hypoxia. Hypoxia causes fish to leave the area, but also causes stress or death to organisms at the bottom of the Gulf that can't leave the zone.
That is why Schutz believes fertilizer and pesticide applications are going to come under closer scrutiny in the future. He said devising ways to deal with those problems will be difficult because of the large numbers of operators involved. "Permits and regulations are not easy, but they're at least feasible in many cases," Schutz said. "But when we have a million farmers in April applying fertilizer or in the fall applying fertilizer, that's a little different to watch and regulate."
Water scarcity is primarily a problem for agricultural production in Nebraska, Schutz said. In Nebraska, irrigation in the western part of the state is a competitive component of a scarce resource. With water law in regard to groundwater use, Schutz said, it allows people to use water as a supplemental irrigation supply in times when rainfall isn't enough. However, he said that could result in exhaustion of the resource if the supply doesn't meet the demand. Water law was developed to deal with these situations.
Water law imposes restrictions on people's use of water to help preserve and sustain the water supply over time. Also, the legislature provides funding for the DNR and even for university researchers, which develop information upon which decisions about restrictions, conservation and sustainability efforts can be made. Schutz said water law also creates reservoir systems- like those in the Republican River Basin- to integrate irrigation with flood management. Reservoirs hold back flood waters, releasing the water over time so huge flows don't destroy tens of thousands of acres of farmland or developed land. Schutz said these reservoirs also help ensure users receive an adequate water supply in dry times.
Schutz said water law has changed a lot within the last 130 years, but there's always more to learn and ways to adapt. "We have to be nimble, always operating in the present, learning from the past and thinking about the future. And because we will make mistakes, we have to make sure we don't make mistakes that can't be undone. But the hope is, over time, we'll get better.
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