WSP01433 - Laserfiche WebLink

Home Browse Search

, ~- I....}. 1..1 vitality in Nebraska is the ambiguity of existing law regarding the preference status of livestock watering and the exercise of preferences. Wasserburger J (1966) and Brummond (1969)3 both dealt with irrigation-livestock watering disputes, and demonstrate the failure of existing appropriation law to clearly deal with stackwarer- ing uses. Implementing this alternative would go as far as may be legally possible to implement the absolute domestic preference lor livestock watering which arguably is contained in both the appropriation statutes and the Nebraska con- stitution, and which was inferred in Brummond. Defining domestic use to include the watering of farm and ranch anImals up to the normal dryland grazing capacity of the land would clarify that such livestock watering was a domestic rather than an agricultural use, and would con- form to the reasonable expectation of riparian landowners that their ownership includes the right to water livestock in the stream. (livestock watering would not include watering of livestock in a feedlot). This definition would implement an important prinCiple consistently expressed in water rights law that small-volume users should be legally protected from the disproportionately larger uses of others. Finally, this definition would implement what appears to be the legislative intent in establishing the domestic preference in Nebraska's appropriative statutes. as corrobor- ated by contemporary dicta in Crawford(1903)4. Most commentators have suggested that the Nebraska constitution imposes a compensation requirement for the exercise of a preference. Another interpretation is possible, however. Compensation might not be required for the exercise of a domestic preference by an in. dividual water user. This interpretation is suggested by. although not established in, Brummond (1969). Method of Implementation. Alternative #4 could be implemented by enacting legislation defining domestic use of surface water to include the watering of domestic. farm. and ranch animals in normal farm and ranch operations up to the normal dryland grazing capacity of the land. and requiring the DWR to administer non-domestic appropriations for the benefit of domestic surface water users. Implementing sub-alternative 4a would require further legislation limiting DWR administration for the benefit of stockmen to situations where there was no alternative source of livestock water. Implementing sub-alternative 4b would require legislation speCifying that DWR admin. istration for the benefit of stockmen was not so limited. Implementing Alternative #4 would increase the DWR's responsibilities for administering appropriations during water shortages. In river basins where surlace water was a significant source of livestock water, this increase in admin- istrative duties could be significant. Where groundwater is the principal source of livestock water, however, DWR administrative duties probably would not increase even if sub-alterna- tive 4b were implemented unless stockmen requested DWR administration on other than a "good faith" basis. Changes in Water Use Patterns. Implementing Alternative #4 could give ranchers a more secure surface water supply through DWR regulation of irrigators for the benefit of ranchers. Implementation of sub. ~ ....,...... . ............ -4 ..,~- '~-"'~.~ -. ._-_.~ -~... ----. . ~ -... ...... ~. ~-~ alternative 4b. effective DWR administration protecting stockmen. could reduce the efforts of ranchers to develop alternative livestock water- ing supplies (e.g. through the development of rural water systems). Physical/Hydrologic/Environmental 1m pacts. Implementing this alternative could result in limited and localized physical/hydrologic/envi- ronmental impacts. These impacts would stem from the potential for streamflow and also from surtace waler Quality deterioration resulting from increased livestock wastes in streams. 4.11