Remember our rivers! An overview of instream flows in Nebraska

States that straddle the 100th meridian have long wrestled with the complex issues surrounding Great Plains and Mountain states water rights. The home state of Prairie Fire, Nebraska, has often postponed the resolution of many aspects of various struggles over water rights. Even in the recently adjourned session of the Unicameral, days were spent attempting to balance the interests of surface water and groundwater users, given that many of Nebraska’s rival basins are now fully appropriated or even overappropriated. The Nebraska Legislature did not take the first step to recognize the obligation to protect streams as a fish and wildlife resource until 1984. Even so, in the intervening years, only slightly over 2% of Nebraska’s streams and rivers have received instream flow protection.

Instream flows—defined simply as the water flowing in a stream channel and its variations in flow levels across different seasons and wet, dry and normal years—have received renewed attention as the water struggles continue between surface water users and groundwater users. The subject has an enormously complex history. Accordingly, we decided to publish a comprehensive, albeit lengthy, essay on instream flows in Nebraska. We hope that our efforts, combined with Gene Zuerlein’s, will succeed in equipping our readers with the knowledge needed to effectively engage in the many water discussions that lie ahead in this, the Century of Water. -Publisher

By Gene Zuerlein

Nebraska’s obligation to protect streams and fish and wildlife resources (recognized as the Public Trust Doctrine) originated in the 6th century A.D. in Roman history. Justinian, emperor of Rome at the time, codified a law stating “By the law of nature, these things are common to mankind—the air, running water, the sea, and consequently, the shore of the sea.” England adopted this Public Trust Doctrine as common law, which was subsequently exported to the original 13 colonies here in the United States. Following the fight for independence, the Public Trust Doctrine was adopted as part of the basic laws in each state. Under U.S. Constitutional provisions, rights and obligations not specifically reserved for federal jurisdictions were transferred equally to all new states joining the union. When Nebraska accepted statehood in 1867, it accepted certain rights, common laws and obligations provided to the 13 original states and each additional state. Among others, each state accepted the common law known as “The Public Trust Doctrine (PTD).

The Constitution of the State of Nebraska states “The use of the water of every natural stream within the State of Nebraska is hereby dedicated to the people of the state for beneficial purposes” (Article XV, Sec. 5). “The right to divert unappropriated water of every natural stream for beneficial use shall never be denied except when such denial is demanded by the public interest” (Article XV, Sec. 6).

Pre-1984

The public trust doctrine revolves around the concept that government owes its citizens special duties of stewardship regarding common property resources which the state holds in trust for the public. The public trust doctrine holds that government must act as a fiduciary (one to whom property or power is entrusted for the benefit of another) in its management of the trust resources. The beneficiaries of this trust are the citizens of the state, including future generations. Common property resources, including water, fish, wildlife, air and land, are held by the states in their sovereign capacity and are subject to the public trust.

When covered wagons rolled across Nebraska in the mid- to late 1800s, there were no laws governing use of surface waters. Naturally, controversy occurred over who could use it, and 22 years after Nebraska became a state, the legislature enacted a law on March 27, 1889, which recognized and protected rights to appropriate surface waters of the state. This act established the fundamental principals to the appropriative system: first in time, first in right. Six years later, the Comprehensive State Code Act of April 4, 1895, created the State Board of Irrigation and firmly established the current appropriation system for surface water rights. Eventually, this state agency became known as the Department of Water Resources, and in more recent times, the Nebraska Department of Natural Resources (NDNR). While the appropriation system worked well during the development years of the state, it may not be the best for future generations because much more than three or four instream flow purposes need to be protected. It is pretty much recognized today that human welfare is dependent upon ecological health and that when rivers no longer support living things, they will no longer support human affairs as well. How much can we depart from the natural flow patterns of any particular river and still retain enough semblance of the natural character to meet ecosystem needs? Protecting rivers should really be about preserving the processes and functions needed to sustain ecosystems and the many amenities they provide to society as a whole.

Although pumping groundwater was in its infant stages in the 1920s, the “correlative use doctrine” was legally recognized in Nebraska in 1933. Basically, correlative use means that in times of water shortages adjacent users must share and share alike. Management of groundwater resources up to this point has, for the most part, been relegated to 23 political subdivisions of the state called Natural Resources Districts (NRDs) with some oversight by the Nebraska Department of Natural Resources. These NRDs, organized on a watershed basis in 1974, are charged with regulating groundwater pumping. Up until passage of LB 962 in 2004, two sets of laws, one governing surface water appropriations and one governing groundwater pumping, existed, with neither recognizing the conjunctive aspect of both sources of water.

Both surface and groundwater resources have been extensively developed since 1889. In water year 1975, 93.2% of all water used in the state was for irrigating 5,400,000 acres. Groundwater irrigation accounted for 66.7% and surface water irrigation accounted for 26.5%. By 1986 approximately 7,200,000 acres were under irrigation. Nine years later (1995), more than 7,448,700 acres were irrigated. Groundwater provided 82.6% and surface water provided 17.4% of the water consumptively used. During 2001, there were 8,175,000 acres irrigated in Nebraska.

While irrigation was expanding in Nebraska, other authorities recognized the potential risk and were advocating change. The 1976 “Missouri River Basin Commission’s Platte Level B Study” boldly stated:

“Progressively greater use of groundwater for irrigation and other uses as well as direct uses of the surface waters, particularly for irrigation, are having adverse effects on wetlands, natural lake levels and on stream flow regimes. These adverse effects will continue, unless there is recognition in state law and policy of the need to maintain certain minimum stream flows to ensure the maintenance of the fishery resources, wildlife, and other environmental resources.”

In 1976, portions of 21 streams in northeastern Nebraska became totally dry and fish kills during the summer were the most numerous in recorded history. Drought, excessive stream withdrawals and groundwater mining contributed to the lowering of stream levels. For example, on the dry Platte, some surface water appropriators reverted to digging holes in the bed of the river so they could get their stingers to suck up the last drops of subsurface water for irrigation. In advocating for an instream flow law, one concerned citizen stated, “The Nebraska environment must not be blindly sacrificed in the name of economic development.” Another citizen stated, “The past few years have demonstrated that water, like any other natural resource, is exhaustible. It is evident from dewatering of Nebraska streams that the water laws of Nebraska have not kept up with the needs of the environment.”

In 1978, the Legislature passed LB 957 and LR 300, directing the Natural Resources Commission (now Nebraska Department Natural Resources or NDNR) to accelerate state water planning. This led to nine Policy Issue and one Summary and Review Policy Issue Studies. One of these studies, “Instream Flows,” specifically identified streams and rivers which contained unappropriated water. It also recommended flows required for: fishery needs in 13 streams/rivers, canoeing in six rivers, compact flows for the Little Blue and Big Blue, on-stream hydroelectric generation flows for four rivers and Minnechaduza Creek, recharge of Lincoln’s well field along the lower Platte, and flows for whooping crane habitat on the Niobrara River. In the summary section of this report, it distinctly states that “Nebraska’s present system for acquiring and administering appropriative rights was adopted in 1895 and has undergone little change … under Nebraska law an appropriator may impound or divert the entire flow of a stream if necessary to satisfy his water right regardless of the impact on stream flow values” (emphasis added).

Post-1984

In 1984, after almost a decade of debate and study on the need for instream flows and 95 years after Nebraska water laws were first adopted, the Legislature passed LB 1106. For the first time in state history, a statutory mechanism to protect instream flows in streams and rivers with unappropriated flows materialized. This legislation was significant because it finally recognized that surface water appropriations for instream flow values of fish, wildlife and recreation could be obtained. The Legislature gave responsibility (but no money) for obtaining instream flows to the Nebraska Game and Parks Commission and the 23 Natural Resource Districts in the state. During the 23 years since 1984, only 255 miles (2.1%) of Nebraska’s 12,371 miles of streams and rivers have been protected with instream flow appropriations. Protected reaches include eight miles on Long Pine Creek (a tributary to the Niobrara River), 147 miles on the middle Platte and 100 miles on the lower Platte River (Table 1). One has to wonder where the state of Nebraska would be now in protecting its public trust waters if each NRD had just filed for one instream flow appropriation to protect the main river in their district during the past 23 years. While all initial applications for instream flow protection have been contentious, many river basins are now fully or overappropriated. Most basins have no instream flow appropriations for fish, wildlife or recreational resources and consequently many of the amenities flowing water could provide to our society are in jeopardy unless actions are taken to change state policy to better protect stream resources for future generations.

In 2004, the Legislature passed LB 962 to make the NDNR and 23 NRDs more proactive in anticipating and preventing conflicts between groundwater and surface water users. In fully or overappropriated basins, the NDNR must work with the NRDs to develop and implement integrated management plans. The NDNR must also annually evaluate each remaining river basin to determine if it is fully appropriated. However, unless there is an instream appropriation in the basin, there is no mandatory requirement under LB 962 for NDNR’s evaluations to protect public trust instream resource values. All they can do is listen to concerns about the many other amenities a river provides. If streams continue to be depleted, biological opinions regarding instream flows needs for threatened or endangered species may very well be another factor to consider in fully appropriated river basins. The fact remains that until adequate flows through an instream appropriation are actually granted, new surface water appropriations and groundwater pumping permits are likely to continue to be issued until a stream is declared “fully appropriated.” Since the majority of streams and rivers do not have instream flow protection, once a fully appropriated status is declared for a basin, water will have to be leased (or someday purchased) similar to what is being contemplated for the fully appropriated Republican River Basin and major portions of the Platte River Basin. The status of each river can be see in Figures 1, 2, and 3.

A new provision of LB 962 allows leasing of the consumptive portion of a surface water appropriation (e.g., an irrigation diversion appropriation) for instream flows or other uses within a basin for a period of time up to 30 years. This is a start, but it may also be more appropriate for those who are going to have to provide tax dollars to allow for perpetual purchasing of such water in the long term. During 2006, when assessing hydrological connections along streams and rivers, the NDNR adopted a hydrologically connected area regulating rule called “10-50.” Under this rule, groundwater supplies are considered to be hydrologically connected to a stream or stream reach if the groundwater is draining to the stream. In accordance with NDNR Rule 457 NAC 24.001.02, the area within which groundwater is hydrologically connected to a stream is the area within which “pumping of a well for 50 years will deplete the river, or a base flow tributary thereof, by at least 10% of the amount pumped in that time.” Wells within the geographic boundary defined by the 10-50 rule can legally be regulated to prevent a basin from becoming overappropriated, but wells outside the 10-50 line may not be regulated even though they may also contribute to depletions of stream flows.

The provision to allow leasing of the consumptive part of a surface water appropriation will have merit in the recently approved 2006 Platte River Recovery Implementation Program, where the state of Nebraska will have to pick up the costs of replacing any depletions from designated target flows which occurred after July 1, 1997, because of the Cooperative Agreement signed by the governors of Nebraska, Wyoming, Colorado, and the U.S. Department of the Interior Director on this date. While the purpose of the Cooperative Agreement is to improve and maintain habitat for the endangered whooping crane, interior least tern and piping plover (threatened) in the critical reach of the central Platte River, and endangered pallid sturgeon in the lower Platte River reach, better flows in the central and lower Platte will help many other species and their habitats as well, not to mention other amenities to communities and citizens living along these reaches. Tough decisions remain to be made to fulfill this obligation. It seems prudent that the state of Nebraska could save taxpayers a lot of money if rivers and streams were protected before they become fully or overappropriated. Since the waters of the state are public trust resources belonging to all citizens, it begs the question: How well have the state of Nebraska and its officials protected the public trust?

The United States has passed through four eras of public land and resources management, each with its own legislative policies and environmental ethic. There was settlement and development of the original public domain (1789–1834); next, a public land resource stewardship with a conservation ethic began with President Theodore Roosevelt in the early 1900s; after World War II there was ensuing national growth, including many water development projects such as dams (1941–1962); last, there was the environmental law era of 1962–1990. These four eras paved the way for the present era of watershed restoration and collaborative stewardship.

State-of-the-art understanding of the dynamic nature and ecology of streams and rivers and their importance to providing ecosystem goods and services to mankind has increased tremendously in the last two decades. While the task of protecting instream flows to sustain these uses is a daunting one, those responsible for protecting the public trust must join hands with fellow citizens if future generations are to have any hope of enjoying what present generations enjoy as part of their quality of life here in Nebraska. The need for ecosystem management of large rivers and their floodplains has never been greater. Significant economic advantages, as well as increased biodiversity, can result from restoration of impaired systems. Because ecosystem goods and services rendered by rivers and streams were not well understood historically, they were underappreciated. As a society, we are just beginning to awaken to the true cost of ignoring them. In many cases, it will be cheaper to restore them than to exploit them beyond sustainability.

Nebraska’s surface and ground waters have been extensively developed for many purposes, but irrigated agriculture is the largest consumptive user of water in the state. Some would construe the development and over-exploitation of our surface and groundwater to be a “Tragedy of the Commons.” In this context, state property right laws (e.g., when a surface water appropriation to divert is issued and perfected, it becomes a property right, or the unlimited issuance of irrigation well permits to pump groundwater by NRDs) have failed to safeguard important public trust natural resources which belong to all citizens. Together, they are impacting many stream and riverine natural resources which contribute to the physical, social, biological and economic aspects of Nebraska’s economy. Collectively, some people refer to these resources as ecosystem goods and services. Essentially, they are environmental flow regimes of a particular magnitude, frequency and timing necessary to ensure that a river system remains environmentally, economically and socially healthy for its citizens. Environmental flow regimes are heartbeats for rivers and should not be flatlined.

Although this sounds bleak for managing public trust natural resources on a sustainable basis, much work remains to be done. There are some rivers with unappropriated water left which can be protected with instream flows. On May 24, 2006, the Nebraska Game and Parks Commission (NGPC) Board of Commissioners passed a resolution directing staff to protect existing instream flows already granted and to secure instream flows on streams with high-value natural resources, particularly the heartbeat of the Niobrara River with its high-quality tributaries. (Note: The Central Platte NRD instream flow appropriations on the central Platte, reaching from Lexington to Columbus, are up for a 15-year review in 2009, and the NGPC complimentary instream flow appropriations on the central and lower reaches of the Platte are up for a 15-year review in 2013.)

Should more and more basins become fully or overappropriated and streams and rivers dry up more frequently, the state of Nebraska could very well have to lease or purchase water back to restore and protect public trust/public interest values. Depending upon assumptions made and analyses conducted, it could cost millions of tax dollars to accomplish this. Since surface water is a public resource regulated by the NDNR and groundwater is a public resource regulated locally by NRDs, it remains to be seen whether or not the fortitude to prevent or solve overexploitation of both exists. Funding for NRDs primarily comes from local property tax levees, but state officials may not be open to raising state taxes on all citizens in the future to bail out local NRDs whose decisions result in overexploitation of groundwater in their basins, thus resulting in depletion of hydrologically connected stream/river flows and, subsequently, the loss of current and future ecosystem goods and services.

More than three out of four Americans participate in active outdoor recreation each year. Yet many people fail to realize that having fun and staying healthy in the outdoors is essential to the growth of our economy. According to the Outdoor Industry Foundation, the active outdoor recreation economy contributes $730 billion annually to the US economy. During 2006, an independent economist from ECONorthwest by the name of Ernie Niemi out of Eugene, Ore., evaluated the potential to grow Nebraska’s economy by capitalizing on natural-resource-related, amenity-driven growth in Nebraska. His report, entitled “Natural-Resource Amenities and Nebraska’s Economy: Current Connections, Challenges, and Possibilities,” is available from the Nebraska Game and Parks Commission. [The July 2007 issue of Prairie Fire covered the Niemi report in detail. —Ed.] His conclusion: Natural-resource-related amenities may be able to stimulate economic growth through four mechanisms.

*Improving the quality of life by making the state attractive to entice entrepreneurs.
*Improving feedback to the farm sector by increasing off-farm job opportunities.
*Expanding recreational and other commercial uses of natural resources.
*Protecting environmental values by sustaining species and keeping the web of life together.

A significant proportion of Nebraska’s future economic vitality could potentially revolve around its streams and rivers if natural attributes are protected enough so they can generate amenities citizens are seeking. Examples where this is happening include ecotourism on the central Platte for bird-watching; ecotourism on the Niobrara for canoeing and tubing; and ecotourism on the Missouri River from boating and many other recreational uses. The Missouri River has an active recovery program for the endangered pallid sturgeon, least tern and piping plover, as well as for the diversity of habitats needed to support a healthy riverine ecosystem. A healthy Missouri River means that historically forgotten amenities will be more prominent in the future to help grow Nebraska’s (and other basin states’) economy by paying dividends to many Nebraska citizens seeking fun places to connect with nature, the outdoors and rivers.

While Nebraska’s instream flow provisions are the most restrictive among western statutory laws, they could be improved upon considerably. Adequate instream flows benefit both ecological and economic interests. They are the essence of what makes a river and contribute to many ecosystem goods and services, including filtration and dilution of sewage and associated effluents for water quality; livestock watering; increased land values; cooling water for electrical generating plants; hydro-generating plants; drinking water sources and groundwater recharge; recharging riparian wetlands; subirrigating wet meadow grasslands; fish, wildlife and recreational uses; and many, many other things important to the quality of life here in Nebraska.

However, the question remains: when stream and river flows can legally be diverted or diminished by some combination of surface water diversions and/or groundwater depletions to the point where the lifeblood is drained out of them and they no longer flow, has the state of Nebraska fulfilled its obligation of protecting the public property rights embodied by the public trust? Has the public interest of present and future generations been served?

All photos and information graphics in this article are provided courtesy of the author and the Nebraska Game and Parks Commission.

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