WSP01433

• 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

rights to have lake levels maintained to protect
the value of private residential and commercial
recreational developments.6 Recreational uses
have been recognized under riparian rights in
California, Oklahoma, South Dakota, Texas and
Washington'? Fishing and fish propagation have
been recognized by courts in Texas, Oklahoma
and Washington.s
Other western states which have legislatively
integrated riparian and appropriative rights
seemed to have acted on the assumption that
competing riparian and appropriative water
users were seeking to use the available water for
basically the same purposes. Categories of
"legitimate" riparian uses of water were not
identified. The only categories of water use
receiving special treatment were domestic and
livestock watering uses, which were generally
exempted from any riprian or appropriative rights
registration or regulation.9

Dormant Riparian Rights

The second major issue is whether dormant
riparian rights should be recognized. Owners of
riparian land meeting the Wasserburger /10 tests
have a riparian right to use streamflow, even if
they have never used streamflow for any
purpose. Under the general riparian doctrine, a
riparian proprietor may initiate a new water use at
any time, so long as it is reasonable in relation to
the needs and uses of other riparian proprietors.
The policy issue is whether dormant riparian
rights can be legislatively cancelled. In other
words, if a riparian landowner is not actually
using water, can legislation prevent him from
using water in the future without first obtaining
an appropriation? The reason for doing so is to
end the uncertainty associated with outstanding
riparian claims that may interfere with currently
authorized appropriative water rights.
Other western states have integrated riparian
and appropriative rights by legally recognizing
riparian water rights only where (1) water was
being currently used, or (2) where the riparian
was in the process of developing a water use.11
~In t~ese cases, however, the state was enacting
Its first appropriation statute. Any water claim
wo~ld be adjudicated, whether it was a riparian
claim or a claim based on actual water use. In
~ont~ast, this study is dealing with integrating
riparian and appropriative rights after the fact, Le.
87 years after an appropriation statute was
enacted.) By limiting legal protection to current
or. developing riparian water uses the appropri-
ation statutes of other dual-doctrine statutes
constituted in effect a legislative declaration that
dormant riparian uses were null and void. In
addition, active riparian claims have been re-

3-2

quired to be filed and adjudicated by the state
water rights agency. This adjudication procedure
is the same process that occurred when water
claims were adjudicated in Nebraska from 1895
to 1900. Dormant riparian claims have been
protected, if at all, for domestic and livestock
watering purposes only. While the nullification of
dormant riparian rights has been challenged as
an unconstitutional taking of property, these
challenges have not been successfu1.12
The major exception to this approach for in-
tegrating riparian rights into the appropriative
system is California. Similar to Nebraska, the
California legislature has not attempted to in-
tegrate riparian and appropriative rights. What
integration has occurred has been through liti-
gation. Dormant riparian rights, therefore,
represent substantial water right claims in
California, particularly because the "priority
date" of a riparian right in California is the date
the land was severed, regardless of when the use
was actually initiated.13

Riparian Livestock Watering

The largest probable riparian water use in
Nebraska is livestock watering. The question is
whether domestic and livestock watering uses
should be treated differently from other riparian
claims.
In other western states where riparian and
appropriative rights have been legislatively in-
tegrated, domestic and livestock watering ri-
parian uses typically have been exempted from
any riparian rights registration and appropriation
procedural requirements.14 In Oregon domestic
riparian rights are protected in that irrigators are
administratively required to pass water down to
downstream riparians for domestic and livestock
watering purposes.15 These states have elected
to allow riparian landowners to make limited use
of surface water without having to comply with
the formalities of surface water law. It is unclear
whether this decision was made because of
political considerations, with the number of
domestic and stockwatering users overwhelm-
ing the administrative system for adjudicating
and administering water rights, or because the
quantities of water involved in domestic and
stockwatering uses were so small as not to
warrant adjudication and administration.

Riparian Priority Dates

If riparian water rights are brought into the
appropriation system through registration and
adjudication, a major issue is whether the priority
dates for the "new" appropriative rights will be (1)
the date the riparian land was severed from the