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Last modified
1/26/2010 12:30:58 PM
Creation date
10/11/2006 10:24:23 PM
Metadata
Fields
Template:
Water Supply Protection
File Number
8407.400
Description
Platte River Basin - River Basin General Publications - Nebraska
State
NE
Basin
South Platte
Water Division
1
Date
3/1/1983
Author
Nebraska Natural Res
Title
Policy Issue Study on Selected Water Rights Issues - Riparian Rights
Water Supply Pro - Doc Type
Report/Study
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<br />aspect of owning land meeting the two require- <br />ments described above. <br />The amount of land in Nebraska which qualifies <br />as legally riparian land is unknown. Much of the <br />land in eastern and central Nebraska probably <br />was settled by 1895. Whether this is true for the <br />sandhills region and western Nebraska is un- <br />clear. If much physically riparian land is not <br />legally riparian, however, one issue to consider in <br />evaluating riparian right policy alternatives is <br />how phYSically riparian land should be treated. <br />For example, if a policy alternative deals with <br />livestock watering disputes, it may be applicable <br />to such disputes generally whether or not legally <br />riparian land is involved, as in Brummond4 <br />(1969). Similarly, alternatives dealing with extra- <br />preference uses may be relevant to any surface <br />water conflict involving these uses even if legally <br />riparian land is not involved. Addressing the <br />riparian rights issue may require addressing the <br />related policy issues of how conflicts involving <br />livestock watering and extra-preference uses <br />should be addressed. <br /> <br />Potential Riparian-Appropriative Con- <br />flicts. <br /> <br />The potential for riparian-appropriative con- <br />flicts is the basis for recommendations that <br />riparian rights be integrated into the appropri- <br />ative system.5 If riparian rights had been <br />judicially defined such that they did not threaten <br />appropriations, as was thought to be the case <br />prior to Wasserburger I (1966), the need to in- <br />tegrate riparian and appropriative rights <br />probably would not have been perceived. <br />Future riparian-appropriative conflicts are <br />most likely to arise in two situations: irrigation- <br />stockwatering conflicts and conflicts involving <br />extra-preference uses. These two conflict situ- <br />ations represent the two major water use <br />categories popularly perceived as falling outside <br />the appropriation system. Appropriations have <br />not been acquired for livestock watering be- <br />cause of the popular perceptions (1) that the <br />1895 appropriation act applied only to high- <br />volume diversions of water and (2) that the <br />domestic preference protected livestock water- <br />ing rights. Appropriations for extra-preference <br />uses have not been acquired because of popular <br />and official perceptions that such uses were <br />outside the appropriation system. <br /> <br />High-volume riparian uses. A third potential <br />conflict involving riparian rights should be dis- <br />pensed with. High-volume riparian uses could be <br />initiated that could interefere with existing ap- <br />propriations. However, it is unlikely that any <br />significant high-volume riparian uses are <br /> <br />2-2 <br /> <br />currently being made. The Nebraska Department <br />of Water Resources (DWR) administers appro- <br />priations on virtually all streams in Nebraska <br />during these periods of water shortage. Any high- <br />volume riparian use should have been identified <br />by the DWR during these periods of water right <br />administration. If new high-volume riparian uses <br />were initiated in the future which interfered with <br />an appropriation, however, the appropriator <br />would be entitled to enjoin by court order the <br />riparian use under the authority of McCook6 <br />(1905). Thus, these kinds of potential riparian <br />water uses merit little further consideration at <br />least on those streams administered in the past. <br /> <br />Livestock Watering Riparian Con- <br />fl iets. <br /> <br />Likelihood of litigation. Basically, litigation is <br />a last resort in conflict resolution. Riparian <br />stockwatering litigation is likely to occur (1) only <br />when water supplies are inadequate to meet all <br />needs and the parties are unable to find a com- <br />promise, or (2) when one party dislikes the other <br />and uses water as a pretext for spite litigation. <br />Litigation will not occur when surface water <br />supplies are adequate because there is no con- <br />flict. When surface water supplies are inade- <br />quate but groundwater is readily available litiga- <br />tion is likely to occur (1) if the party forced to <br />develop groundwater believes it has a legal basis <br />for recovering part of the costs incurred (e.g. if the <br />insurance companies litigate the liability issue) <br />or (2) for spite. If surface and groundwater <br />supplies are both inadequate[as was the case in <br />Wasserburger I (1966)] litigation may occur if the <br />parties cannot find a compromise because there <br />is a genuine conflict. Because groundwater <br />supplies generally are available throughout most <br />of Nebraska at a reasonable cost, riparian stock- <br />watering litigation has been less frequent than if <br />water supplies were more limited. Riparian <br />stockwatering litigation is most likely to occur <br />where the water conflict is genuine (and the risks <br />of litigation therefore are worth taking) or where <br />spite is involved. <br />For purposes of this discussion, livestock <br />watering includes the watering of domestic live- <br />stock and livestock on pasture (up to the normal <br />dryland capacity of the land) but excludes the <br />watering of livestock in a feedlot. Stockwatering <br />conflicts are unlikely to arise frequently because <br />groundwater is the major source of livestock <br />water in Nebraska. However, groundwater is in- <br />adequate for livestock watering in several parts <br />of Nebraska, including: (1) the White River-Hat <br />Creek basin--northern part of Dawes, Sioux, and <br />Sheridan counties, (2) the Niobrara River basin-- <br />parts of Boyd and Knox counties, (3) the Repub- <br />lican River basin--scattered areas along the <br />
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