HOLDING TIGHT TO THE TAP
A 2004 law has some irrigators and municipalities worried about their water future.
ART HOVEY
A mid many signs of trouble - drought, declining groundwater levels, shrunken rivers and streams - Nebraska lawmakers in 2004 passed what many regard as the most far-reaching state water legislation in three decades.
The new law, LB962, extended the state's authority beyond surface water to include groundwater.
Under LB962, for the first time, the state has the power to declare water supplies in the state's 13 major river basins either fully appropriated or over-appropriated.
Fully appropriated means the state regards the available supply of water as equal to the demand for water. Over-appropriated means the demand exceeds the supply and that something must be done, such as limiting pumping per well, to diminish overall use.
Either designation gives state regulators the authority to stop well drillers in their tracks. And Roger Patterson, former director of the Department of Natural Resources, did just that.
Territory along the Platte, North Platte and South Platte rivers west of Kearney moved quickly into the over-appropriated category in September 2004. Eight other water-challenged areas in central and western Nebraska made the fully appropriated list.
Limiting irrigation also limits the state's ability to raise more corn and boost the agricultural segment of the economy.
But the sheer volume of groundwater pumping caused some to push for the legislation and conservation measures.
In 2003 alone, Nebraska farmers used almost 8.5 million acre-feet of irrigation water from surface and underground sources to save their crops from drought.
That is almost five times the capacity of 22-mile-long Lake McConaughy.
Despite broad support for LB962, some have reservations about the law.
Nebraskans First, a watchdog group of groundwater irrigators, is worried about regulations that push surface-water and groundwater irrigation into the same mold.
"Our big fear," said Don Adams, the group's Lincoln-based executive director, "is that groundwater users, if they keep going down this road, are going to be relegated to being second-class citizens in a state that's 85 percent irrigated with groundwater."
Meanwhile, Lincoln and other municipalities are worried that LB962 does not do anything to secure their water future.
"There's not much in there for municipalities," said Steve Huggenberger, an assistant city attorney in Lincoln and a member of the task force that drafted LB962. "I think everybody acknowledges that."
Until now, Nebraska was the only Western state not regulating groundwater at the state level, said Ann Bleed, acting director of the Nebraska Department of Natural Resources. In Nebraska, 23 natural resources districts and their locally elected boards have had that job since they were established in the 1970s. Direct state regulation was confined to rivers and streams.
But the passage of LB108 in 1996 made the principle of "conjunctive use" a matter of law. The legislation acknowledged the hydrologic connection between ground and surface water and the impact of groundwater pumping on surface-water flows.
Patterson presided over surface-water regulations since he was hired by then-Gov. Mike Johanns in the late 1990s. Until he resigned in August 2005, Patterson had almost constant reminders of the state's finite water limits, above and below ground, and the controversies LB962 might now help resolve - a court confrontation, for example, gave Kansas a tighter grip on Republican River flows as they leave Nebraska.
Most recently, the Holdrege-based Central Nebraska Public Power and Irrigation District has gone to the state Supreme Court to try to protect the much-depleted Lake McConaughy by more vigilant regulation of groundwater wells upstream on the North Platte River.
With so many competing demands, how long can the water last?
"We want our supplies to be sustainable," Patterson said. "Not just for the next decade or the next 50 years, but we want them to be sustainable for the long haul."
People ask what that means, said Bleed. "It's very clear that the supply of water has to be in balance with the use. It doesn't mean that, when it's dry, we can't have declining water levels."
Those who dig into the details of LB962 also discover the state and natural resources districts are supposed to work together, from this point forward, to direct the water future. In areas where the water demand is determined to have met or exceeded the supply, the state and locally elected NRD boards will develop plans to roll back water usage or hold the line. LB962 gives districts the authority to lift well-drilling moratoriums - but only under circumstances in which there is no net gain in water demand.
That means, for example, that an NRD could set up an allocation system that limits every irrigator to a certain number of inches. Or irrigation could be withdrawn from one field, and an equivalent amount of water could be dispensed somewhere else.
"Every drop of water belongs to somebody," Bleed said. "So if you allow one person to expand his use of water, it can only come from someone else and water they're entitled to use."
