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..v (~i CHAPTER 2 EFFECT OF RIPARIAN RIGHTS ON SURFACE WATER ALLOCATION IN NEBRASKA This chapter discusses the practical effects of riparian rights on surface water allocation in Nebraska: what ripaflan-appropriallve conflicts may arise in the future. the likelihood of riparian- appropriative conflicts actually leading 10 litiga- lion, and how Courts are likely to deal with those contlicts. PRACTICAL EFFECTS OF RIPARIAN RIGHTS Role of Riparian Rights in Water User Expectations Before discussing potential riparian-appropri- ative conflicts. the role 01 riparian rights in form- ing water user expectations deserves briel con- sideration. When Nebraska was first settled. the settlers probably did not seek and did nol have format legal opinions regarding waler rights. Those seWing riparian lands assumed they were entitled to use streamflow as it flowed through their lands for domestic and other purposes (including irrigation and water power). This reasonable expect:\tion was a primary reason for the adoption of the riparian doctrine by the Nebraska Supreme Court. 1 When the Nebraska Legislature enacted the 1895 appropriation act. the reasonableness of the expectation that riparian proprietors were free to use water lor any purpose was fundamentally changed, at least regarding high-volume water uses. The legisla- tion established an administrative system lor allocating surface water rights. While this system appeared comprehensive. it left some gaps (at least as pOPuldrly perceived) regarding livestock watering and "extra-preference"' uses (i.e. uses outside the preferences provisions. such as fish, wildlife, and recreation, and induced ground- water recharge). Therefore this change in water law doctrine probably did not significantly affect landowner expectations regarding livestock watering uses. Riparian landowners historically have not relied on nparian rights to any signifi- cant degree except for livestock watering. The legal existence of riparian rights does not signifi- cantly influence the ownership and management decisions of riparian landowners. Rather, riparian rights are a legal alternative attorneys might discover in counselling riparian clients regarding surface water supply shortages. This last point is worth emphasizing. In other western states (notably California) riparian rights are similar to appropriative rights in Nebraska. In California. for example, riparian rights can represent a secure legal claim for a dependable water supply for high-volume uses. Because of this riparian rights in California are the basis lor significant land Investment and management decisions. This is not the case for riparian rights in Nebraska except perhaps for livestock water- ing (as discussed later). Riparian rights in Nebraska represent a possible claim for live- stock watering and a potential legal basis for claiming rights lor extra-preference water users. The practical signIficance of riparian rights, beyond livestock watering, is not the water supply security they afford. but the possible legal claim they may represent for extra-preference surface waler uses. If riparian rights in fact represented secure water rights for high-volume water uses, the practical significance of riparian rights would be much greater than presently is the case. Basis of Riparian Rights Wasserburger I 2 (1966) established that for a tract of land to legally have riparian status it generally must have been in private ownerShip before April 4. 1895 (the effective date of the 1895 appropriation act). and must have fronted on a stream continuously since April 4. 1895.3 Land meeting these requirements is legally riparian even if ownership has changed, Riparian rights are not evidenced by a permit or a notation on the land title or deed, but are an unwritten 2.1