Water Law 101: Part 6, Sharing Water with Other States and Water Use within the State

Smith Falls
Smith Falls on the Niobrara River, Cherry County, Nebraska. (Photo by Gary Stone)

Water Law 101: Part 6, Sharing Water with Other States and Water Use within the State

Part 6 of a series about basic water law in the United States, predominately in the western part of the country, and how it affects this finite resource. Water law can be traced back to Roman times and also has roots in English common law. Across the United States, it varies from state to state, and from East to West. When conflicts arise, courts usually determine the outcome, unless there are state or federal laws or previous case studies to resolve the issue. Exceptions to the law can arise from differences in each state’s water laws.

 

Part 1: Basic concepts and legal terms, including riparian doctrine and prior appropriation.

Part 2: Other types of water rights and legal doctrines and concepts.

Part 3: Terms and definitions used in administering surface-water rights.

Part 4: Groundwater terms and definitions

Part 5: Groundwater — Wells

Part 6: Sharing Water with Other States and Water Use within the State

 

For a state located in the middle of the continent, Nebraska has an abundance of water (in most years, that is, and in many parts of the state, but not everywhere all the time).

The Cornhusker State has more miles of streams and rivers than most other states, and more groundwater in underlying aquifers than any other states. The High Plains aquifer is an average of 600 feet in thickness under the Sand Hills but can be as much as 1,000 feet thick. Outside the Sand Hills, its average thickness ranges between 100 and 400 feet.

Total water use in Nebraska breaks down to approximately 81% groundwater irrigation, 13% surface water irrigation, 4% domestic water uses. The remaining 2% comprises other uses such as livestock, industrial and mining.  

Nebraska has approximately 9 million irrigated acres of cropland (about 3 out of 8 total crop acres), making it the top state in irrigated acres. The amount of water applied per irrigated acre is approximately 10 inches, ranking fourth nationally (compared to California, 34 inches; Arkansas, 23 inches; and Texas, 16 inches).

There are over 107,000 registered irrigation wells in the state. Eighty percent of the state’s public drinking water and private water supplies come from groundwater sources.

But Nebraska’s water is not confined to the state’s borders. Surface water enters the state as stream flow and precipitation, and the water that isn’t used here might flow into other states.

Water flowing into and out of the state can be expressed as a generalized water budget. Per the Groundwater Atlas of Nebraska (2013 edition) and the USGS National Water Survey Summary (1987), the generalized calculated numbers are: Streams in, 0.4 inches per year; precipitation, 22.6 inches; runoff, 0.9 inches; evapotranspiration (ET), 19.9; recharge, 1.9; and streams out, 2.2. Note that precipitation is the largest “in” component and evapotranspiration is the largest “out” component; and that streams flowing into the state carry less water than streams flowing out of the state.

Nor does groundwater respect state borders. The High Plains Aquifer underlies eight states from Texas to South Dakota. In Nebraska, the High Plains aquifer underlies approximately 84% of the state. The High Plains aquifer is a group of aquifers, which include the Ogallala aquifer; the Brule, Arikaree, Broadwater groups and formations; and other younger, unconsolidated units.  

Here are some terms and concepts related to sharing water among states:

An Interstate water compact is an agreement between two or more states regarding competing demands for a water resource that are beyond the legal authority of one state alone to solve. States administer water rights within their own political boundaries; however, the process becomes more complicated when involving an interstate body of water (interstate water).  Under these conditions, there are three possible ways to achieve an interstate allocation of water: a suit for equitable apportionment brought by the states in the U.S. Supreme court; a congressional act; and an interstate compact.  

An interstate compact is an agreement negotiated between states, adopted by their state legislatures, and then approved by Congress. Once an allocation of interstate water is determined by such a means, each individual state may then issue water rights to its share of the water through its normal administrative process. Interstate compacts have been traditionally used in making water allocations in the western states (for example, the Republican River Compact between Colorado, Kansas and Nebraska). 

Decreed rights are water rights determined by court decree. An example is the North Platte River Decree between Colorado, Nebraska and Wyoming. One element of the North Platte River Decree is equitable apportionment, in which the U.S. Supreme Court essentially applied prior appropriation across state lines to determine water rights.

Fully appropriated basins in Nebraska are river basins (or sub-basins) where water coming into the basin is equal the amount of water taken out or otherwise leaving the basin. These areas are closed to both new high-capacity wells (over 50 gallons per minute, gpm) and to new appropriations. Fully appropriated basins are designated by the Nebraska Department of Natural Resources.

Over-appropriated basins in Nebraska are river basins (or sub-basins) where water coming into the basin is less than the amount of water taken out or leaving the basin. These areas are closed to new high-capacity wells. Over-appropriated basins are designated by the Nebraska Department of Natural Resources (or in the case of the Platte River Basin, state statute). 

Navigable waters: The traditional view of this concept, was upheld in a Kansas case, State Ex Rel. Meek vs. Hays), which ruled that a stream must be navigable for commercial purposes to legally be considered “navigable in fact.” If the stream or river was not used for commercial navigation at some point, then it is non-navigable. Then the adjoining landowners therefore own to the thread (middle) of the stream, and therefore no right of public recreation on the stream itself. If the stream is navigable, the state owns the bed of the stream and the public has a right to recreate on the stream.

A more modern view (Wyoming – Day vs. Armstrong) is that if a stream can be used for recreational purposes, then it is considered navigable, and the public has a right to recreate on the stream.

Some states use the commercial navigability test to determine stream bed ownership, whether the state or the adjoining landowners own the bed of the stream. Some states use the less restrictive recreational navigability test to determine whether the public has a right to recreate on the stream or not. So, you can have states where the bed of the stream is privately owned (because the stream was not used for commercial navigation) but the public nonetheless has a right to recreate on the stream because you can canoe it. In Nebraska, the law is unclear. 

What if the stream bed is private property but the public has the right of recreational navigation? In this case, the public will often have the right to “incidentally” touch the bed and will have an additional right of portage — the ability to take a boat or other watercraft around any obstructions in the stream. But generally, the public will not have the right to (1) cross private property to get to the stream without the owner’s permission (2) to leave the canoe and picnic, etc. on private property without the owner’s permission. If they do, they have committed trespass. The public never has an automatic right of way across private property to gain access to a public stream for recreational purposes.

Similarly, even though ground water is considered public property in Nebraska, you still need the landowner’s permission to access that ground water if you don’t own the land yourself. Public ownership does not give the public an unlimited right of access to the public resource.

We made it to the end of this series, but by no means the end of the ongoing water story.

Excellent resources for this series and more information include the ACEN 457/857 Water Law Class, David Aiken, JD, University of Nebraska; “Flatwater: A History of Nebraska and Its Water;” “An Atlas of the Sand Hills;” “The Groundwater Atlas of Nebraska” (1998 and 2013 editions); and “USGS Estimated Use of Water in the United States” (C1344 and C1441).

The University of Nebraska Institute of Agriculture and Natural Resources, Water for Food Daugherty Global Institute, Nebraska Water Center, and other partners at the local, state and federal level lead the world in water research. The leadership, research and education these partnerships provide will ensure efficient water use and stewardship of this finite resource for the state and its residents for years to come.

Water, our finite resource has many uses. Agriculture, domestic, power generation, wildlife and habitat, aesthetics, and recreation are just some of those uses.  

Water is life, life is water.

And to repeat the question that concluded previous parts of this series, what is your answer: What is water worth?