Water Policy & Water Law Practice

Trial Lawyers in Omaha, Nebraska

The Domina Law Group's broad practice with agriculture and prominent legal issues makes it essential for the Firm to be involved in water law issues. The Firm filed one of the most significant challenges to the State’s “sketchy water policy” in late 2012 for irrigators in south central Nebraska. The filing promptly made its way to the hands of a Special Master appointed by the United States Supreme Court to adjudicate issues involving one of Nebraska’s Rivers.

Why is water law so urgent? Well, Domina recalls what the ancient Roman playwright said, “It is wretched business to be digging a well just as thirst is mastering you.” Water is so basic to all things, and so essential. The balancing of domestic users, irrigators, and industrial users, is a sensitive process. “Only planning with a very long range view can provide good policy or make good decisions about how to protect, and allocate water.” Domina says.

Nebraska’s State Constitution includes three sections dealing with water. The State’s statutes are a patchwork of laws on the subject. Much policy making and implementation is left to Natural Resource Districts or NRDs. A summary of basic legal ideas can be read here. Domina Law lawyers are helping Northeast Nebraska irrigators to understand the State’s water laws and try to “work out issues with domestic users to allow families and irrigators to both meet their needs."

Sometimes, the people are too passive and let bad laws be made. Sometimes, the government agencies act too soon, or on too little information, or because they are too impacted by special interests. When that happens, Domina Law reminds its clients that “The people are like water and the ruler a boat. Water can support a boat or overturn it.” A recent review of water user concerns and potential action resulted in a presentation by Dave Domina and Brian Jorde to a group of 200 irrigators at Pierce NE on January 6, 2013. See the presentation outline here.

Importance and Increasing Scarcity of Water

Leonardo da Vinci said “water is the driver of Nature.” Jacques Cousteau stated, “We forget that the water cycle and the life cycle are one.” Even though most people on Earth realize the truth of these statements worldwide use of a finite fresh water supply and conserving and intelligently rationing this water supply isn’t front page news, yet. There is no doubt, however, that it will be for decades to come.

National Water Shortage - Why is water law so urgent? Well, Domina recalls what the ancient Roman playwright said, "It is wretched business to be digging a well just as thirst is mastering you." Water covers roughly 70% of the Earth's surface but only a tiny fraction of that, less than 1%, is available for our use. The remaining is either salt water found in the Seas, frozen in the ice caps, or too inaccessible for realistic use. This tiny fraction of water that is available for use must be shared all over the world for domestic, agricultural, commercial, and other needs.

With water usage increasing in the United States, many areas have begun to feel the inevitable pressure of declining water availability. At least 36 states throughout the US are anticipating water shortages in the near future. According to the U.S. State Department the need for fresh water will exceed the supply by 40% by the year 2030. Without significant change in our daily water consumption the United States will have a critical water shortage having extreme impacts, both direct and indirect, on almost every area of life.

Determining Water Use - Surface and ground water are two separate entities but they are part of an interrelated system needing an increasing amount of management. Surface water takes the form of water collecting on the ground or in a stream, river, lake, wetland, or ocean. Surface water is naturally replenished by precipitation and naturally lost through discharge to evaporation, seepage into the ground, and human use.

Groundwater is water located beneath the earth's surface in soil pore spaces and in the fractures of rock formations, which result in aquifers. Groundwater is recharged from and eventually flows to the surface naturally, often at springs and seeps. Groundwater is most often withdrawn for agricultural, municipal, and industrial use by constructing and operating extraction wells.

Surface Water - The hierarchy of water use can vary greatly from state to state, even when two states use the same management system. States have the right under police powers, and often their Constitution, to regulate the use of natural rivers and streams so that waste is eliminated. For example, in Nebraska, site of the largest fresh water reserve in the Western preference is given to appropriators using water for domestic and agricultural purposes and the right to appropriate water for irrigation purposes is limited to water of natural streams. Cozad Ditch Co. v. Central Neb Public Power & Irr. Co., 132 Neb. 547, 272 N.W. 560 (1937); Rogers v. Petsch, 174 Neb. 313, 117 N.W.2d 771 (1962). Thus, in times of shortage the hierarchy of who has claim to water may vary greatly.

As another example, the state of Indiana sets out water allocation priorities for withdrawals from State financed reservoirs. First priority is for the use of water for domestic purposes; second priority for the use of health and safety; third priority is for the power production that meets contingency planning provisions; fourth priority is for industry and agricultural; fifth priority is for a purpose that does not meet the contingency planning provisions of drought alerts; and sixth priority is for any other purpose. Rule 312 IAC 6.3-4-1.

Ground Water - Ground water can either be publicly or privately owned. If ground water is owned by the state, it is typically distributed through an appropriation system. If it is privately owned, limited or unlimited production rights will be allowed based on liability rules and land ownership. While the production of ground water and the spacing of wells may be regulated under any system, the effectiveness, methods and results may vary dramatically from one system to the next.

These systems include a rule of capture, similar to the appropriation doctrine with surface rights; riparian rights, also similar to surface water rights, or a reasonable use rule. This third system involves private ownership rights which does not guarantee the landowner a set amount of water, but allows unlimited extraction as long as the result does not unreasonably damage other wells or the aquifer system. Again, disputes with what a reasonable use is and how much water may be used is settled within the courts.

Water Conflicts

Personal Use & Consumption- Lake Mead, the West’s largest and most important reservoir, has remained dangerously close to the level at which the U.S. Secretary of the Interior would likely declare a water shortage, rising only slightly in the past couple years. Lake Mead’s water level has been near its lowest point since the reservoir began filling in the 1930’s in recent years. There are 30 million Americans who depend on this reservoir’s supplies, which come from the Colorado River.

Agricultural & Food Production - Domina Law lawyers are helping Northeast Nebraska irrigators to understand the State’s water laws and try to “work out issues with domestic users to allow families and irrigators to both meet their needs." Large amounts of water are vital to our nations agricultural and food production needs. Ground water irrigation has increased rapidly in the last few decades, largely because of increased crop yields in comparison to dryland farming.

For example, in Nebraska about 60% of corn grown is irrigated, with reported yields in the range of 180 bushels/acre versus 130 bushels/acre for dryland. Many agricultural states are starting to feel the impact of water shortages. Some northeast Nebraska farmers are facing new irrigation rules which would bar expansion of irrigation to new areas as well as bar offseason irrigation. There are irrigation educational requirements and irrigators must now install groundwater pump monitors and some of the irrigators will have annual limits on how much water they can pump.

Another example of major concern and consequence is the depletion of the largest underground reserve of water in the United States, the Ogallala Aquifer. The Aquifer covers 174,000 square miles and stretches from southern South Dakota through parts of Nebraska, Wyoming, Colorado, Kansas, Oklahoma, New Mexico, and northern Texas. It has been critical for agriculture throughout the Midwest, which provides crops for the entire United States. Farmers use water from the Aquifer to irrigate more than 15 million acres of crops each year.

For decades the Aquifer has been tapped at rates thousands of times greater than it has been restored. Throughout the span of the Ogallala Aquifer water level declines of 5 to 40 feet are common due to irrigation. Without adequate levels of water available to farm, billions of dollars from our nation’s economy will be impacted either directly or indirectly. In Nebraska alone, it is estimated that irrigated agriculture contributes $3.6 to $4.5 billion in net economic impact.

Industrial Users - Industrial manufacturers across the United States rely on water supply to keep their businesses running. Although most manufacturers use considerably less water than residential and agricultural users, water is a critical input to the production process for many manufacturing industries. These plants have had to take extensive steps to conserve water and improve efficiency of in-plant water use. With limited water supply, plants may be forced to limit their output which would cut back on jobs and have a huge impact on many areas of our economy.

Recreation - The low level of Lake Mead has forced the U.S. Bureau of Reclamation to cut power from the lake’s Hoover Dam by 20%, impacting fishing and boating most notably due to a shrinking shoreline. Relocating a marina to accommodate boat slips because of the lower water levels can cost up to $100,000 per relocation. Other reservoirs throughout the United States are experiencing similar dangerously low water levels. The San Luis Reservoir in California is currently three-quarters empty and projected to drop to historic lows by the end of the summer, impacting both recreation and farming.

Legal Issues

Abandonment and Forfeiture - Under the Appropriation Doctrine, a state water resource agency may determine that a water right has been abandoned or forfeited. Abandonment requires intent to give up the water right permanently while forfeiture results from failure to use the water in the manner described within state statutes.

Adjudication - is an administrative or judicial determination to establish the priority, place, nature of use, and the quantity of water used among claimants within a stream system or watershed. These stream or watershed adjudications can be initiated by a water user or by the state.

Beneficial Use - Found within the Appropriation Doctrine, beneficial use is an important principle. It has two components: 1) The nature or purpose of the use and 2) The efficient or non-wasteful use of water. State constitutions, statutes, or case law may define what uses are beneficial and may change this definition over time. The right to use water established under state law may be lost if the beneficial use is discontinued for the allotted time period.

Consumptive- use characterizes the difference between the amount of water diverted and the amount of the return flow to the system, such as a surface stream or underground basin. It is the total amount which has been depleted.

Instream Flow Requirement - Instream flow is the amount of water needed in a stream to adequately provide for downstream uses occurring within the stream channel while maintaining an appropriate water level. Instream values and uses include: protection of fish and wildlife habitat, migration, and propagation; outdoor recreation activities; hydropower generation; water quality; and ecosystem maintenance. Water requirements sufficient to maintain all of these uses at an acceptable level are the instream flow requirements.

Water & Flood Management

Flowage Easement - A flowage easement is the right of the government to use another's land, usually as a perpetual right, power, privilege, and easement to overflow, flood, and submerge the lands affected within the granted easement.

There are several types of flowage easements including:

1. The Right to Overflow Permanently
2. The Right to Overflow Occasionally
3. Valuation of Land Not Permanently Inundated

Regardless of the type of flowage easement, the landowner still reserves the rights and privileges of their land. However, the landowner has a responsibility to do so without interfering with or abridging the rights granted in the flowage easement.

Land Takings & Eminent Domain - As water shortages increase, there is a higher probability that land near you or even your land may be taken for storage use. Dams are an increasingly attractive option for permanent water storage. Some legislators are also exploring the possibility of strong water underground, in manmade reservoirs. There are currently three such reservoirs in Texas and several Texas lawmakers have introduced legislation to begin more of these projects. The lawmakers claim that evaporation is reduced and they are cheaper and faster to build than surface reservoirs. In order to build these manmade reservoirs, great amounts of land will need to be taken from private landowners.

Domina Law Group & Water

The era of depleting our Nation’s water resources while assuming there is an infinite amount of water has come to an end. With cutbacks on water supply and heavy regulations looming, it is inevitable that farmers, residential users, and manufacturers will be fighting for this valuable resource. Thousands of cases have already been litigated across the United States related to water and even more are to come.

Domina Law Group's experience with water law related issues spans from Federal to State to Local courtrooms. Whether your water related issue is about your fear an international oil pipeline may affect your future ability to irrigate your farm ground or that you are in a fight with the government who wants to take your land for a flood easement preventing future farming, or whether your residential water supply is in danger due to nearby industrial users or anything in between regarding water, we are here to help you.