WSP02891 - Laserfiche WebLink

Home Browse Search

~ I" ' I'" I,.J'I,I the allocation calculus of an interstate stream if an economically efficient allocation of water is to be made. II recognizing instream appropri- ations or holding instream uses to be beneficial would enhance the prospect of including such uses in any system of interstate allocation, then the alternative would make it more likely that an efficient allocation of water would be achieved. Alternative #5: Provide that certain uses of water are not considered beneficial uses. Description and Methods Implementation. Water in Nebraska can be appropriated only for benefical uses. The term "beneficial use" is not currently defined in any Nebraska statutes ex- cept those pertaining to interbasin transfers. In some cases, narrow definitions of lawful benefi- cial use have been used to restrict diversions of water. The State of Montana, for example, has enacted a law prohibiting the use of water for the slurry transport of coal.4 Similar restrictions as to other uses of water likely to be large interstate uses might also be possible, Care should be used in selecting these prohibited uses so as not to similarly restrict desired in-state uses of water. In light of the decision in Sporhase, this alternative could pose some interstate commerce Quest- ions. This alternative could be implemented in one of two ways. The legislature could define beneficial use as excluding those uses for which prohibi- tions on diversions are desired, or it could take the path of the state of Montana in specifying those uses that are not to be considered as beneficial. Physical/Hydrologic/Environmental Im- pacts. The impact of this alternative would depend on what types of water uses were de- termined 10 be beneficial and what were not. II the purpose is to prevent large-scale diversions of water out of stale, then a long term result may be more water available in the future in the state than would have been if such development had been permitted, Socio-Economic Impacts, This alternative would have definite negative economic impacts unless the "nonbeneficial" uses were defined as uses that were wasteful and of no economic value. Generally, however attempts to restrict use, as typified by the Montana coal slurry statute. are economically inefficient on their face. The very purpose of such statutes is to prevent an economic use of water. Alternative #6: Strengthen the in- terstate groundwater transfer statute. Description and Methods of Implementa- tion. In Sporhase v. Nebraska5.the United States Supreme Court held that the reciprocity require- ment contained in Nebraska's non-exportation statute. ~46-613.016. was an unreasonable burden on inters tate commerce in violation of the Commerce Clause. In declaring water an article of commerce, the Court subjected the state's non-exportation statute to strict scrutiny to de- termine If it was discriminatory. The reciprocity provision is apparently the only part 01 the statute which failed to legitimately meet the stated ob- jectives of conserving and preserving diminish- ing sources of groundwater. Groundwater regulations which would meet this conservation end might. however, survive the court's strict scrutiny test and offer ways to strengthen the interstate groundwater statute. The state would have to be careful to impose the same restrictions on its own citizens. The Court observed that. "Obviously. a state that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the un- controlled transfer of water out of the state,"] Whether the state perceives the control of out-of- state transfers of groundwater important enough to justify the same regulation of Its own citizens is a policy decision which will have to be weighed. Examples of restrictions which could be im- posed are limitations on transfers not to exceed one Quarter mile from the point of withdrawal and speCific limitations on Quantity. This alternative could be implemented by an amendment to the statutes. By placing restrict- ions on transfers not to exceed a certain distance or Quantity, the large scale interstate demands tor water, such as energy development, would be prevented. Physical/Hydrologic/Environmental Im- pacts. Presently, there are only a few isolated situations of groundwater being transferred for use in another state, Consequently, no signifi- cant physical/hydrologic/environmental impacts should result Immmediately from the implement- ation of this alternative. With the reversal 01 the Nebraska $porhase decision by the U.S. Supreme Court. the potential for massive transfers of groundwater continues to exist. The criteria set out in the statute are such that large scale transfers in some areas might not be preventable. This alternative could be used to make them preventable. thus pre- serving those groundwater supplies lor Nebraska use. Socia-Economic Impacts. An absolute ban on the interstate transler of groundwater would be economically inefficient. Economic criteria support the use 01 water where It will earn the 3.5