Nebraska Surface Water First-in-Time Rule
Nebraska water resources play a major role in the state's heritage and economy. Beginning with the state constitution, Nebraska surface waters have been governed by the Appropriative First-in-Time, First-in-Right Rule which allows diversion of water from the surface waters of the state based upon the date the water right was obtained. Surface water rights entitle land owners or organizations to remove a set amount of water from a specific location.
This system protects those who received their water rights first during periods when the overall water supply is insufficient to meet all appropriated water rights. Thus, the entity with the earliest priority date (First-in-Time) is entitled to their full appropriation (First-in-Right) before a later priority date entity receives any water. The water right issued by the Nebraska Department of Natural Resources (NDNR) is legally attached to a parcel of land or a position in the state and is transferred with the land to subsequent owners.
Nebraska Correlative Water Rights for Groundwater
Correlative Rights (PDF document) govern the use of Nebraska ground waters. Correlative Rights allow land owners to drill wells and extract groundwater from an underlying aquifer for beneficial purposes subject to management by the public. In 1957 the Unicameral passed legislation requiring the registration of all irrigation wells. To execute this right, land owners now must first obtain a permit to drill a well from their local Natural Resources District. If approved, the well permit allows the land owner to drill a well and extract as much groundwater as needed as long as the use is deemed beneficial. When the well development is completed the well permit is registered with the NDNR which places the information in a statewide data base.
Natural Resources Districts
Prior to 1972 Nebraska was organized by Soil and Water Conservation Districts (PDF document). In 1972, Nebraska Natural Resources Districts (NRD's) were initiated following passage of LB 1357 (PDF document) by the Nebraska Unicameral. Three years later, the Unicameral passed LB 577 which assigned the legal authority to regulate the use of groundwater to NRD's.
Groundwater Management Plans
The Unicameral adopted LB 1106 in 1985 which required NRD's to develop groundwater management plans for both water quality and water quantity. Each NRD management plan was approved by the Nebraska Department of Natural Resources. These plans identified ways each NRD proposed to protect water quality and regulate groundwater uses.
Nebraska Chemigation Act
Water quality protection legislation entered the equation when the Unicameral passed LB 284 The Nebraska Chemigation Act in 1986 (Nebraska Code, Chapter 46, Sections 46-1101 to 46-1148). In 1987, the Nebraska Department of Environmental Quality published Title-195 Rules and Regulations Pertaining to Chemigation which called for mandatory safety equipment, chemigator training, and periodic inspections of the equipment installed on individual irrigation systems.
Groundwater/Surface Water Connection and Sale of Water
With passage of LB108 (PDF document) in 1996, Nebraska recognized the hydrologic connection between groundwater and surface water and provided rules for the sale of groundwater to entities inside and outside the state of Nebraska.
Water Policy Task Force
In, 2002, the Nebraska Legislature passed LB 1003 creating a Water Policy Task Force, to be appointed by the Governor. Governor Mike Johanns appointed 49 members to the Water Policy Task Force to discuss integrated management of surface water and groundwater, and, by December 2003, make recommendations to the Nebraska legislature and the Governor relating to any water policy changes deemed desirable. Specifically the task force was asked to:
- Review existing laws related to the integrated management of hydrologically connected surface water and groundwater (LB 108) and determine if any changes are needed to adequately address Nebraska's conjunctive use and integrated management of these resources;
- Evaluate the utility of allowing permanent and temporary transfers and leasing of water rights and creating a water banking system; and
- Determine what issues related to inequities between surface water and groundwater users need to be addressed and what actions need to be taken.
Ground and Surface Water Balance
In 2004, the Nebraska Unicameral enacted LB 962 (PDF document) which required the Department of Natural Resources to conduct an annual assessment of the water balance in each watershed or sub-watershed in the state. The Department was instructed to classify each watershed as being under, fully, or over-appropriated (PDF document) based upon a set of criteria. In order to classify the watersheds, all sources and uses of water (ground and surface water) have to be measured, or estimated using a combination of current water development and model estimates. In areas designated as fully appropriated (PDF document), new high-capacity wells and new surface water rights were banned. Nearly half the state has been designated as fully appropriated or over-appropriated.
Limitation of New Development
In 2009, the Nebrasaka Unicameral passed LB 483 which limits new development of irrigated acres within the Hydrologically Connected areas surrounding Nebraska's surface water resources (streams, lakes, rivers, etc.). This new rule (PDF document) impacts watersheds that were declared fully appropriated by NDNR (map) (PDF document) and the ruling has subsequently been reversed.
From the Encyclodpedia of Water Science, by Dave Aiken, UNL:
- Surface Water Law in the Western United States (PDF)
- Groundwater Law in the Western United States (PDF)
- Nebr. Dept. Natural Resources Rules for Surface Water, Title 457 (PDF)
- Nebr. Dept. of Natural Resources Rules for Groundwater Chptr. 12, Groundwater Wells Registrations
- Nebr. Dept. of Natural Resources Annual 2009 Report (PDF)
Integrated Water Management Options in the Nebraska Ground Water Management & Protection Act, Dave Aiken, from the UNL Water Center archives (PDF)
Groundwater Management in the High Plains Aquifer in the USA: Legal Problems and Innovations, John C. Peck, University of Kansas School of Law (PDF)
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