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<br />",/," -,0) <br />lilJUllC\~., <br /> <br />Many of the problems related to interstate <br />compacts stem from the language of the agree- <br />ment itself. Compacts often suffer from a lack of <br />enforcement or adjudicatory powers, and inade- <br />quate administrative mechanisms to deal with <br />evolving problems of a basin. Careful compact <br />negotiation can eliminate most of these weak- <br />nesses if the parties so choose. <br />Groundwater may pose some different <br />problems requiring interstate resolution. The <br />methods just discussed have all been in the <br />context of surface water disputes and may <br />require some modification to deal effectively with <br />interstate groundwater problems. Both the <br />Upper Niobrara River Compact and the Blue <br />River Compact recognize the interrelationship of <br />ground and surface water but do not make any <br />attempt to apportion the groundwater supply. <br />Most interstate weather modification <br />problems in the past have been resolved through <br />cooperation instead of litigation. <br /> <br />ALTERNATIVE LEGISLATIVE AND <br />ADMINISTRATIVE POLICY ACTIONS <br /> <br />Twelve alternatives have been identified for <br />consideration relating to interstate water uses <br />and conflicts. They represent a range of possible <br />policy options. <br /> <br />Alternative Requiring No Action <br /> <br />Alternative #1: Make no change in present <br />policies. <br />This alternative would continue Nebraska's <br />present policy of dealing with interstate conflicts <br />on a case-by-case basis. Existing state policies, if <br />enforced as reflected by interstate compacts and <br />court decrees, however, could result in much less <br />water flowing into the state. Economically, the <br />cost for failure to anticipate problems and seek <br />solutions that avoid them can be high. Existing <br />policy also has a tendency to promote maximum <br />water use at the expense of interstate cooper- <br />ation. <br /> <br />Alternatives to Seek Greater <br />Interstate Agreement <br /> <br />Alternative #2: Authorize and initiate the <br />negotiation and formation of interstate <br />agreements or compacts on the inter- <br />state streams on which no compacts <br />currently exist. <br />The limited applicability of this alternative - to <br />the White River, Niobrara River and Ponca Creek, <br />and the Missouri River - would be a step towards <br />establishing firm water rights to the streamflow in <br /> <br />these streams. Compacts for these streams <br />could provide added protection for both up- <br />stream and downstream rights and a more realis- <br />tic appraisal of the water available for future <br />project development. <br />Alternative #3: Authorize and initiate the <br />negotiation and formation of interstate <br />compacts with states sharing interstate <br />groundwater basins with Nebraska. <br />Two existing compacts to which Nebraska is a <br />party currently address groundwater with re- <br />spect to its effect on surface flows. Where not <br />enough information is available about an inter- <br />state groundwater basin to make an apportion- <br />ment, a compact could be negotiated to conduct <br />a study for the purpose of making a determin- <br />ation on apportionment. <br /> <br />Alternatives to Better Nebraska's <br />Position for Future Interstate <br />Allocations <br /> <br />Alternative #4: Declare that natural flow <br />permits may be issued for other benefi- <br />cial uses including instream uses. <br />By recognizing other beneficial uses including <br />instream uses, Nebraska may be able to improve <br />its overall position in any future interstate water <br />disputes. Courts will generally consider the <br />amount of water appropriated for legal uses in <br />considering the best allocation scheme. <br />Alternative #5: Provide that certain uses of <br />water are not considered beneficial <br />uses. <br />Since water in Nebraska can be appropriated <br />only for beneficial uses, it may be possible to <br />restrict or prohibit certain types of diversions by <br />enacting legislation specifying that such uses <br />are not beneficial uses of water. <br />Alternative #6: Strengthen the interstate <br />groundwater statute. <br />The U.S. Supreme Court decision in Sporhase <br />seems to indicate that a state can impose with- <br />drawal and use restrictions on in-state citizens <br />and out-state water users equally in order to <br />prevent the uncontrolled transfer of groundwater <br />outside the state. Even though this may not <br />discriminate against interstate commerce, the <br />state must be careful in tailoring the regulation to <br />meet a legitimate local interest. The regulation <br />must also be a reasonable one. <br />Alternative #7: Provide for the reservation <br />of waters by the Department of Water <br />Resources to fulfill public interest re- <br />quirements. <br />This alternative would permit the reservation of <br />waters by the Department of Water Resources to <br />meet a legitimate, foreseeable need by setting <br /> <br />VII <br />