Water Law Regulates Usage

By Tim Duey

The University of Nebraska-Lincoln's David Aiken has been observing Nebraska water policy debates for over 30 years, witnessing a historic policy change in 2004.

"Things have quieted down a lot in terms of water law," Aiken said. " We passed legislation in 2004 which gives the state the authority to close areas of the state to new high capacity wells, and that has gone a long ways in terms of keeping us from developing water problems in the future."

According to Aiken, Texas did not make the same prudent decisions that Nebraska did in 2004 and now Texas has lost over 2.5 million acres to groundwater depletion. Aiken believes that the 2004 law is progressive enough to overcome past shortcomings in Nebraska's water resources management. In the early 2000s, Kansas and Nebraska were locked in a contentious legal battle over the right to water
from the Republican River. The case, Kansas v. Nebraska, was eventually settled out of court, but subsequent enforcement actions led to a ruling that Nebraska had used significantly more water in dry years than it was entitled to and would have to cut back.

Aiken said things are better today than they were 30 years ago. In his opinion, after a long period of inaction by Nebraska's Natural Resource Districts, or NRDs, the state has finally gotten things right, and, if the state follows through with its plans to reduce the amount of water it uses from the Republican River to levels similar to those of the mid-90s, Nebraska should finally achieve water harmony with Kansas. As a result of the 2004 legislation, the state closed off the Republican River to new wells. Now, most of western Nebraska is also closed to new drilling, and Aiken says that has had a major impact in helping Nebraska better manage its water resources.

"The reason the legislature did that is that the legislature realized that groundwater feeds the streams," Aiken said. "and that if you pump enough of the groundwater out then the streams are going to dry up ... not many states do that, not many states say that you can't get a well because it could hurt the stream, and so it was a very progressive piece of legislation. I was astounded when the legislature passed it because it was such a good idea. It kind of blew me away."

But although Aiken thinks Nebraska's progressive water management legislation is a good idea, he also recognizes that not everyone is going to be affected positively by it. Instead of drilling new wells, people who want to start farming in much of Nebraska will have to buy existing wells. This could negatively impact the rural economy, Aiken said, because when a farmer has a grown child who wants to begin farming, it's often a tradition for the parent to drill a new well or two for that new farmer to use. That's not going to be an option anymore in much of Nebraska.

Another part of the new legislation is that the NRDs will buy back wells from farmers so that the state can eventually reduce its overall water use in problem areas, such as the Platte and Republican basins. But grain prices and land prices both are very high right now, which makes the business of buying back wells that much more expensive. "This started out as a 20- or 30-year program, but if prices
stay high it's going to be a 50-year program," Aiken said. "Because with prices this good, farmers say 'well, if you want me to quit irrigating, you're going to have to pay more.' And it's going to be a lot."

According to Aiken, the NRDs can impose a tax of up to $10 per irrigated acre on Nebraska farm land to fund the well purchases. There is a legal challenge to the tax right now, so NRDs are either not collecting the money or not spending it at this point.

Aiken also believes it's time to start working more closely with Kansas to avoid paying penalties for overuse of water during dry years.