Tapping Into Nebraska Water Laws: The Past, Present, and Future of Our Most Vital Resource

Access to water has been a driving force behind the growth of agriculture, industry, and cities throughout American history. As the nation developed from early colonial days to the present, water rights laws adapted to address increasing demands, competition among industries, and environmental shifts. In this post, we’ll trace the evolution of these laws, examining the key doctrines that shaped U.S. water rights and exploring their lasting effects on today’s agricultural practices.

Water law in Nebraska is a complex and vital area, particularly due to the state’s significant agricultural economy and reliance on water for irrigation and livestock. Nebraska’s unique position in the High Plains Aquifer (including the Ogallala Aquifer) and its numerous river basins makes water law a central concern for landowners, agricultural producers, and policymakers. Here’s an in-depth look tapping into Nebraska water laws, their implications, and key issues.

Water Right Doctrine History

Water law in the United States is governed by two primary doctrines: the riparian doctrine and the prior appropriation doctrine. They operate on very different foundations and have different historical reasoning.

Riparian Doctrine

The riparian doctrine originated in England and was brought to the U.S. with early settlers. Under this doctrine, landowners whose property borders a water source (such as a river or lake) have the right to use the water reasonably as long as they do not significantly impair the water’s quality or quantity for others downstream. This doctrine worked well in England, where water was relatively abundant, and populations were lower, and it was effective in the early colonies, where water scarcity was less of a concern. This doctrine is still prevalent in states with abundant water resources, primarily in the eastern U.S., where water availability is relatively stable. The riparian system emphasizes shared use and is based on fairness between landowners, allowing all to access water as long as their use does not unreasonably harm others.

Prior Appropriation Doctrine

The prior appropriation doctrine emerged during the 19th century in the arid western U.S. during the Gold Rush, as settlers moved into regions where water was scarce. The traditional riparian rights doctrine would not meet the needs of communities and industries in the drier western states, where water was scarce and where agricultural and mining operations required reliable, large-scale water access. The prior appropriation doctrine is often summarized as "first in time, first in right." It grants water rights to the first person to divert and use water from a source for a beneficial purpose, prioritizing that person over those who come later. This doctrine is used in most of the western states, where water scarcity can be an issue. The prior appropriation system emphasizes water use based on necessity and efficiency, with rights determined by the timing and beneficial use of the water.

While these are the two primary foundations of water rights, many states use a hybrid system that combines aspects of both doctrines, and Nebraska is one of those states.

High-Plains Aquifer

The High Plains Aquifer is one of the largest aquifers in the world, spanning roughly 174,000 square miles across eight states, from South Dakota to Texas. This underground water reservoir provides crucial water resources for agriculture, drinking water, and industry across the central United States. Its most productive areas are in Nebraska, Kansas, and Texas, where it supports large-scale irrigation for crops.

While some areas of the aquifer are depleting, leading some to think we are losing water in Nebraska, it is not quite so simple. The aquifer is not one single underground cavern but is more like a labyrinthine with a significant structure. This prevents water from flowing freely between all areas. The portion of the High Plains Aquifer below Nebraska is called the Ogallala Aquifer.

The different portions of the aquifer also recharge in different manners, and Nebraska makes use of the sandhills. The Nebraska Sandhills are one of North America's largest intact prairie ecosystems, spanning over 19,000 square miles and sitting above the Ogallala Aquifer. This vast, rolling landscape of grass-stabilized sand dunes acts as a natural water recharge area, playing a crucial role in replenishing the aquifer below.

The Sandhills are unique because their highly permeable sandy soil readily absorbs precipitation. When rain falls, the sandy soil allows water to infiltrate quickly, preventing excessive runoff and directing it downward into the aquifer. The sparse population, native grasses, and limited development in the region help maintain this natural recharge system. Unlike other areas with more impermeable soils, the Sandhills effectively capture and filter water, enhancing the aquifer’s levels and sustaining a reliable groundwater source. This makes the sandhills key to how water is treated in Nebraska.

Water Rights in Nebraska

Nebraska operates under a dual water law system, regulating both surface water and groundwater separately. Farmers in Nebraska must be familiar with these regulations to avoid legal issues, particularly if their operations rely heavily on irrigation.

Surface Water Rights – Prior Appropriation

Nebraska follows the prior appropriation doctrine for surface water, often summarized as “first in time, first in right.” This system means that the first person to obtain a water right for a specific use has priority over others during times of scarcity, subject to a hierarchy of domestic>agricultural>industrial>recreational. Surface water permits are granted by the Nebraska Department of Natural Resources (NDNR), and farmers must maintain proper documentation of their water rights.

• Water Allocation and Permits: Farmers need a permit from the NDNR to legally divert surface water for agricultural use. The permits specify the amount of water allowed, the purpose of use (e.g., irrigation), and where the water is diverted. Permit holders may lose their rights if they do not use their allocated water beneficially over an extended period. Using water within the limits set by the permit is essential to avoid penalties or having the water rights revoked.

• Regulation During Drought: During droughts or water shortages, those with older (senior) water rights have priority over newer (junior) users within their class of water use. This can lead to limited water availability for farmers with more recent permits. Understanding your priority status is crucial for planning during dry periods.

Groundwater Rights – Correlative Rights

Nebraska’s approach to groundwater law differs from surface water, adhering to the correlative rights doctrine. Under this principle, all landowners have a shared right to access groundwater beneath their property but are limited to reasonable use to avoid harming neighbors' rights.

Nebraska is unique in its groundwater management, establishing 23 Natural Resources Districts (NRDs) across the state to oversee and manage groundwater resources locally. The NRD boundaries were centered around different watersheds in Nebraska. NRDs monitor usage, implement regulations, and enforce conservation measures tailored to the region's needs.

• Irrigation and NRD Regulations: If your farm relies on groundwater for irrigation, you must comply with local NRD regulations. These regulations vary by district and may include restrictions on well placement, pumping limits, and the use of irrigation technology. Some districts may also require farmers to obtain groundwater use permits or register their wells.

• Conservation Compliance: NRDs also enforce conservation practices, including crop rotation and reduced tillage, to protect groundwater quality. Violating these rules can result in penalties or restrictions on water use, so it’s essential to stay up to date on local NRD requirements.

Conjunctive Management: Integrating Surface and Groundwater

Nebraska is among a few states with a "conjunctive management" approach, which considers surface water and groundwater as interconnected resources. This approach recognizes that groundwater pumping can deplete surface water flows, impacting river ecosystems and surface water rights holders.

• Integrated Management Plans (IMPs): NRDs and the DNR collaborate to develop IMPs in fully or over-appropriated basins. These plans regulate both surface and groundwater use to maintain a balance that protects existing rights and environmental health.

• Streamflow Depletion: When groundwater pumping reduces streamflow, the DNR and NRDs may restrict pumping or require offsets (such as retiring wells) to protect surface water rights.

Water Quality Regulation

Nebraska Department of Environment and Energy (NDEE):

The NDEE oversees water quality and pollution control, enforcing federal standards under the Clean Water Act and state water quality standards. The NDEE regulates discharges from agricultural, industrial, and municipal sources, ensuring that water bodies remain safe for human use and ecological health.

Local Water Quality Initiatives:

NRDs are also involved in water quality protection, particularly in monitoring nitrate levels and contamination from agricultural runoff. They may enforce localized measures to manage fertilizer application, prevent pollution, and promote best practices for sustainable land use.

Emerging Issues in Nebraska Water Law

1.    Climate Change Increasing climate variability poses a growing challenge. It can affect water availability and potentially lead to more frequent droughts, which can impact agricultural output.

2.    Groundwater Depletion Some areas face declining groundwater levels due to prolonged high demand, necessitating stricter management to ensure long-term viability.

3.    Technological Advancements Advances in precision agriculture, data monitoring, and remote sensing provide new tools for efficient water management and enforcement, aiding NRDs and landowners alike.

Legal Challenges and Advocacy

Water law in Nebraska is frequently contested, with stakeholders including agricultural producers, environmental groups, municipalities, and industry representatives. Key issues often include water rights disputes, allocations, environmental regulations, and compliance with interstate compacts. These disputes are sometimes resolved in state courts, while interstate disputes may reach the U.S. Supreme Court.

Conclusion: Protecting Your Water Rights and Ensuring Compliance

Nebraska’s water laws are essential to balance the interests of agriculture, the environment, and urban needs. With its unique management approach and commitment to sustainable practices, Nebraska strives to protect water resources while supporting its agricultural economy. For those engaged in agriculture or land management, understanding Nebraska’s water laws and actively participating in NRD activities is crucial for protecting water rights and contributing to responsible resource stewardship.

If navigating Nebraska’s water laws feels complex, you’re not alone. At Midwest Ag Law, we understand water's vital role in agriculture and business, and we’re here to help you secure and protect your water rights. Don’t risk interruptions to your operations—reach out to Midwest Ag Law today to get experienced, agriculture-focused legal support.

Disclaimer: The information provided in this blog is for general informational purposes only and is not intended to be legal advice. Reading this blog does not establish an attorney-client relationship between you and Midwest Ag Law. You should not act upon any information in this blog without seeking professional legal counsel. Laws may change, and each situation is unique; therefore, consult an attorney for advice regarding your specific circumstances. Midwest Ag Law expressly disclaims any liability concerning actions taken or not taken based on the content of this blog.