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b.......21 Comments and Recommendations of the Natural Resources Commission INTRODUCTION AND PURPOSE The responsibility of the Natural Resources Commission in preparing policy issue study reports is twofold. First, the Commission is responsible for presenting policy alternatives which are both representative in scope and objective in substance. It is hoped that this report accomplishes that purpose. Second. the Commission is responsible for providing its opinion and recommendations on the various alternatives presented in each report to the general public, the Legislature. and the Governor. The Commission arrived at the following recommendations atter a review of the report and consideration of comments generated from public hearings and from the Public Advisory Board. RECOMMENDATIONS At the present time, the Commission recom- mends that neither Alternative #2 (register riparian rights) or Alternative #3 (register and adjudicate riparian rights) be adopted. Following the 1966 case entitled Wasserburger v. Caffee, there was much concern that conflicts between riparians and appropriators would occur at an ever increasing rate and would Soon constitute a major prOblem in Nebraska water Jaw. That concern has not materialized and the Com- mission believes that attempts now to register riparian rights orto integrate them into the appro- priation system could well cause more prOblems that it would solve. What are potentially thousands of now dormant riparian rights could suddenly become active claims to use water in conflict with presently recognized appropriative rights. Such a reaction would be counterpro- ductive to the overall objective of promoting harmony between water users. The Commission recommendation that neither -- - - - - - Alternative # 2 or Alternative #3 be implemented Is not without qualification. In previous policy issue study reports. the Commission has recommended that the water use preferences be modified and that insteam flow values be recog- nized in the state's water allocation system. Depending upon how those earlier recommend- ations would be implemented by the Legislature, such implementation could increase the likeli- hood of conflicts between appropriative rights and riparian rights. For example, in implementing a pOlicy in favor of protecting instream uses the Legislature might not restrict the right to protect those uses to public entities. Consequently, an individual riparian landowner's chances of successfully using his riparian right to maintain instream flows would be significantly increased. Because of this and similar possibilities, the Com"mission recommends that a decision now not to register or to integrate riparian rights be reassessed each time other pOlicy decisions are made which could affect the type and frequency ot riparian rights claims. Given certain combin- ations of policy decisions. registration or adjUd- ication of riparian rights may prove to be more attractive than they are at present. While the Commission does not presently favor either Alternative #2 or #3, we do recommend that positive legislative action be taken towards implementation of Alternative #4 (define and protect domestic uses of surface water). In the report entitled "Preferences in the Use of Water': issued in October of 1981, the Commission recommended that domestic use of waler be defined and that it be given an absolute prefer- ence for both surface water and groundwater. Alternative #4 in this report is consistent with that recommendation and may in fact go a necessary step beyond. Although there is some case Jaw to the contrary, preferences are gener. ally thought to be available only to appropriators. Since instream domestic uses of water custo- marily do not obtain appropriative rights, the -- - -- ------- -