Date of this Version
NEBRASKA LAW REVIEW 91 (2013), pp. 805-865
At a time when many, if not all, western states are under pressure to redefine how water resources are managed, this Article provides insight into how one state—Nebraska—has attempted to modify the water management institutions within its borders to implement more integrated management approaches that embrace flexibility and adaptability. Nebraska is a state that has extensive surface and groundwater development and different legal systems and management agencies for governing surface and groundwater resources. This late in the game, the state is unlikely to assimilate governance of surface and groundwater resources into a single, overarching legal system. Instead, Nebraska has adopted a system that gives authority over groundwater resources to twenty-three local management districts, known as Natural Resources Districts (NRDs), while the state manages surface water resources. Recently, legislative revisions to the state’s water code have required greater cooperation between the NRDs and the state. We consider whether the hurdles posed by a system that was historically bifurcated between local and state authorities can be overcome through integrated management planning and coordination and, if so, whether such an approach can be used as a model for other western states under pressure to devise more holistic and adaptive approaches in managing water resources. Part II introduces the physical and institutional context of water resources management by exploring state law governing water allocation and use within Nebraska, as well as federal laws applicable to water and water-dependent species throughout the nation. Part III discusses the principle of adaptive management and best practices for its use. Using these defining features, Part IV assesses the adaptive capacity of Nebraska’s water institutions. It is followed in Part V by a comparative look at the efforts of other western states to implement adaptive, integrated water management, with a specific focus on Kansas and Colorado. The article closes with insights on adaptive, integrated management efforts within and beyond Nebraska. While recent legislative efforts have moved Nebraska much closer to an adaptive, integrated framework of management, the system remains divided by separate authorities and separate legal doctrines for surface and groundwater. While it may not be a perfect model, it is a commendable advancement in achieving more adaptable water resource institutions and it is imperative that Nebraska and other western states continue to use the platform of integrated management planning to shape water management decisions into the future.