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, .l'}n .) I CHAPTER 3 RESOLUTION OF RIPARIAN-APPROPRIATIVE CONFLICTS IN OTHER WESTERN STATES RECOGNITION OF THE RIPARIAN DOCTRINE Of the seventeen contiguous western states. nine have recognized both riparian and appro- priative surlace water rights. These "dual- doctrine" states include the coastal states of California. Oregon and Washington, and the states lying on the 100th meridian: North and South Dakota, Nebraska, Kansas. Oklahoma and Texas. These states are generally more humid than the arid mountain and southwestern slates where the riparian doctrine has never been recognized as a general basis for surface water allocation.' The dual doctrine stales have en- countered some of the problems Nebraska has in attempting to judicially and legislatively interre- late appropriative and riparian suriace water rights. The facets of the riparian doctrine as imple. mented in the dual-doctrine states are varied and contain many aspects not relevant 10 decision makers attempting to determine whether ripar. ian and appropriative water rights in Nebraska should be integrated. Rather than review all elements of the riparian doctrine in other western states, the issues relating to legislative and judicial integration of riparian and appropri- ativewater rights in Nebraska will be evaluated in this chapter. These issues include: (1) what purposes of use have been recognized or should be authorized under a riparian right: (2) whether and the extent to which dormant riparian claims should be recognized; (3) how riparian livestock watering uses should be addressed. and (4) if riparian rights are transformed into appro- priative rights. what priority date the new appropriation should be given. What administrative procedures the dual- doctrine states used to integrate riparian rights into the appropriative system is a fifth possible issue, which is not discussed because these states did not establish special procedures for riparian rights adjudication. The first four issues are art based on the premise that riparian right claims should be integrated into the appropri- ative system by registration and adjudication of riparian claims and Ihe issuance of new appro- priative rights in lieu of the common law riparian rights. PURPOSES OF USE A major policy issue related to riparian rights is whether a legislative definition of riparian rights should recognize"any beneficial use" of water, or whether recognition should be limited to domestic, agricultural and manufacturing purposes. In other words, the issue is whether extra-preference uses of surface water, such as mining, municipal use, commercial use, industrial use. groundwater recharge, recreation, aesthe- tics, fish and wildlife. and other ";nstream" water uses should be established as legitimate riparian water uses. This issue has not been addressed directly by the Nebraska Supreme Court. In an early decision, however, the court in dicta suggested that a riparian could use streamflow for "any" purpose.2 The court did not discuss the difference between what may be referred to as "utilitarian" (i.e., domestic and profit seeking uses) and other water uses. such as aesthetics or recreation. Courts in California and Oklahoma have also stated that the riparian right extends to "any beneficial use."J Other recognized beneficial uses include: domestic, stockwatering, irriga. tion, water power, municipal, mining. and in- dustriar.4 Courts in some western states have ruled that a riparian landowner could not claim a riparian right for aesthetic purposes if such uses would prevent upstream uses for "strictly utilitar- ian purposes."5 However, courts in California. Texas and Washington have recognized riparian 3.1