Navigating Legal Systems for Sustainable Water Use

Water governance in agriculture is very important, especially given an increase in weather extremes and precipitation variability, leading to higher water demand for crop production. The absence of robust water governance can lead to faster depletion of water resources and a higher likelihood of disputes between different water users. Successful water governance frameworks tend to focus on the local context, which often requires navigating complexities around local hydrology, the underlying water law and communities’ needs. This article will highlight the role of complex water law in seeking to establish sustainable agricultural water use pathways.

In U.S. agriculture, the allocation of water resources is primarily shaped by state water law. The law defines various location-specific aspects, including the following:

• Water law informs who can hold water rights (e.g., landowners, organizations, public entities), for what purpose (e.g., agriculture, environment, public water supply), and whether a water right can be separated from land ownership.
• The law determines the amount of water that can be used under each water right.
• Water law specifies conditions for maintaining the right to use water.

Legal frameworks for water use in the U.S. are highly complex and variable, often with weak monitoring and enforcement, especially for groundwater.

Legal frameworks for water use in the U.S. are highly complex and variable, often with weak monitoring and enforcement, especially for groundwater. This variability in water law and governance approaches can significantly impact the pathway toward sustainable water use outcomes. For example, Nebraska, Kansas and Texas, underlain by the High Plains Aquifer, each have distinct groundwater rights systems. Texas defines groundwater as private property, Kansas follows a seniority-based approach and Nebraska uses a combination of two legal systems, imposing proportional reductions during shortages. These differences, along with variable climate and hydrology, have contributed to varying groundwater extraction practices and, consequentially, different levels of aquifer depletion, with Texas experiencing the most severe declines.

To better understand how water policy and technology could be designed to adapt to water shortages and drought impacts, it is critical to know location-specific legal systems for water use. In many cases, water rights systems are not flexible or fair and do not reflect current water scarcity-related challenges. Yet, they can add risk to agricultural production and contribute to serious economic consequences for farmers, business owners, lenders and rural communities.

Various efforts have been initiated to modify water rights systems to be more relevant to current water challenges. For example, California passed the Sustainable Groundwater Management Act to help protect its groundwater resources from overuse. Kansas repealed its “use it or lose it” law to encourage conservation. Also in Kansas, in a region known as the Sheridan 6 Local Enhanced Management Area, irrigators collectively agreed to reduce groundwater use, ignoring the differences in the seniority of their rights.

The path to sustainable water use in agriculture is complex. Understanding the details of local systems that allow legal water use can help us better comprehend the challenge and focus collaborative efforts on addressing it, leading to a stronger and more adaptable water governance system.

Renata Rimšaitė, PhD, is a senior program manager for the Daugherty Water for Food Global Institute at the University of Nebraska. Views or opinions expressed in this column do not represent her employer.