Just as a river flows, bends, and changes, the legislation regarding one of our most

important resources has evolved. Dr. Dave Aiken, a water lawyer at the University of

Nebraska-Linoln, has witnessed some of the most important changes in water law in Nebraska's

history.

While pursuing his law degree at George Washington University, Dr. Aiken pursued a job

as a USDA law clerk, working with developing western water law. A native Nebraskan, Dr.

Aiken’s prior knowledge of irrigation and interest in environmental law, made the opportunity

appealing. The position gave Dr. Aiken a front-row seat to the development of this essential

legislation which led him to return to Nebraska in 1975 when a water law position opened at the

University of Nebraska-Lincoln.

Water law in 1975 was far from what it is today. Nebraska had developed its rules for

surface water, but the controversial groundwater rights we are familiar with today had a long

way to go. Surface water is mostly understood by its users, as the effects of overuse or a dry year

can be seen by everyone. However, groundwater has a certain mystery to it, which makes it an

issue easily politicized.

At the University of Nebraska-Linoln, Dr. Aiken not only participated in research but

also was an active participant in extension, taking on the role of an educator during such an

influential time. In the 1980s, new governance emerged with new instream flow legislation.

Instream flow water rights are important because they are responsible for determining how much

water can be used from rivers and streams. Democratic Governor, Bob Kerrey, led the pursuit of

real instream flow governance and was “proactive, and aimed to reach a consensus,’ said Dr.

Aiken. During this important time, Dr. Aiken served on a task force put together by the governor,

which would ultimately lead to the enactment of new rules by the legislature in the late 1980s.
 At this time, there was very little regulation of groundwater development. The governing

body at the time was the Natural Resource District. The role of these multi-county districts was

to monitor groundwater development, and issue permits for new projects. Groundwater is a

highly political issue, but as Dr. Aiken stated, “ the role of politics is to push change.” Governor

Mike Johanns, showed the power of politics on this issue when he appointed a state water chief

with a background in California water law. This new water chief introduced legislation to

determine if parts of the state were over appropriated with underground water rights. This

ultimately slowed groundwater development in Nebraska for generations to come. Even today

there are parts of Nebraska where it takes years to receive a permit to drill a well. The slowing of

groundwater development in Nebraska has made some wonder where water will come from in

the future.

Nebraska Water law has recently been rocked by an old issue made new by Governor

Pete Ricketts. The 1923 South Platte River Compact, gives Nebraska 120 cubic feet per second

(CFS) during the irrigation season and up to 500 CFS in the offseason. These flow rates would

be ensured by the construction of the Perkins canal in northeastern Colorado. Flows have

recently been threatened by the high rate of development in Denver. In a rapidly changing

climate, one thing is for sure, and that is Denver will maximize its legal water right to grow.

The river is divided into two sections, the upper and lower region. Nebraska only has

water rights in the lower section. However, the South Platte River is an essential contributor to

irrigation water for farmers in western Nebraska. The compact is a considerable political move

that not only has a large price tag, but also the potential to change western water law forever.

Dr. Akin says, “ Colorado knows Nebraska is serious. While Denver moves forward with

big water development projects.” The Nebraska Legislature’s approval of partial funding for
further investigation into the Perkins Canal which is included in the compact has led to

negotiations between the states. These negotiations would ensure Nebraska would receive 250 to

300 CFS in the off-season which runs from October 1st to April 1st. If these terms are agreed

upon there would be no need for a canal to be built. Although if these terms are not agreed to, it

will be a costly battle that Nebraska will surely take to the supreme court. Either way, the dispute

over water rights in the South Platte has shown the impact of water law on future generations.

Climate change is a force we have all witnessed change our planet and impact everyday

life. We can be sure that climate change “...will have a massive impact on the water supply and

agriculture throughout the world”, says Aiken. The hard truth is that the future of agriculture and

our natural resources will look different. The recent Nebraska- Colorado dispute is just the first

of many to come. As more cities continue to grow, ensuring safe drinking water for people will

become the largest priority.

While many things are sure to change in the future, we can be sure that many people will

continue to work hard to protect our most important resource. The development of western water

law has come a long way in the last 40 years and is sure to continue to change in the future. As

consumers of water, we must all be vigilant about water conservation and begin to adopt

innovative practices to ensure water for people and agriculture in the future.

Sources

Interviewed: Dr. Dave Aiken

Questions and answers on instream flows - outdoornebraska.gov. (n.d.). Retrieved April 7, 2022,

from https://outdoornebraska.gov/wp-content/uploads/2015/11/Instream_Flows_Q_A.pdf