Instream Flow Legislation

In the west, state law historically considered water left in the stream to be wasted. Western states, which rely heavily on diversions to meet their water needs, have encouraged full appropriation of rivers and streams. In many cases, however, diversions have resulted in the depletion of stream flow reliant ecosystems and adversely affected fish, wildlife, recreation and river navigation. A comparison of Nebraska law to the water law of other western states demonstrates that Nebraska’s existing instream flow legislation is quite narrow. Nebraska statutes impose a variety of restrictions on instream flow appropriations, many of which are unique and even unprecedented. Rather than restricting instream flow appropriations even further, it may be wise to expand instream flow protections to keep pace with contemporary norms by protecting and enhancing the value of ecosystem services such as pollution filtration, wildlife habitat and recreational activities