|
<br />are given in the discussion below underSpec,ific
<br />Comments, While also rejected as inappropriate
<br />as separate and complete property rights rules
<br />for Nebraska, Alternatives #3, #4, #8, #10, and
<br /># 13 each have their place as a part of the overall
<br />policy structure for groundwater. As noted in the
<br />material which follows, rejection of those alterna-
<br />tives here is not meant to be and should not be
<br />interpreted as a total rejection of the concept of
<br />those alternatives to the extent they are now or
<br />can later be incorporated into a more com pre'
<br />hensive ground water management system,
<br />
<br />Specific Comments
<br />
<br />Alternative #2, which would adopt the English
<br />Rule of Absolute Ownership as a definition of
<br />groundwater property rights in Nebraska is
<br />rejected in total. It fails to recognize either the
<br />rights of surrou nding landowners or the rights of
<br />the public in the use of groundwater in the state,
<br />It is considered outdated and counterproductive
<br />to sound management of the groundwater re'
<br />source,
<br />Alternatives #3 and #4 are among those al-
<br />ternatives for which an unfavorable recommend,
<br />ation should not be considered as a total re'
<br />jection, Both the American Rule of Reasonable
<br />Use and the California Rule of Correlative Rights
<br />are reflected in current Nebraska policy, How-
<br />ever, in that policy they are properly balanced
<br />against each other. The Commission does not
<br />believe the enactment of either as the sole
<br />governing standard would serve the interests of
<br />the state,
<br />Alternatives #5 and #6 are similar, with both
<br />establishing reasonableness as the basic
<br />standard tor groundwater use, They prescribe
<br />that what is reasonable will be determined in
<br />relation to the needs of other landowners, While
<br />either alternative could be implemented in a way
<br />similar to the correlative rights portion of existing
<br />Nebraska law, such a result is not assured, The
<br />uncertainty that these alternatives would thus
<br />introduce is not desirable, Because of this un'
<br />certainty, these alternatives might discourage
<br />investments and prevent additional groundwater
<br />development where it could properly occur.
<br />Alternative #7 is an attempt to Introduce, at
<br />least in part, the concept of a surface water
<br />appropriation system into the administration of
<br />groundwater in the state, The Commission
<br />believes that first in time, first in right rules have
<br />no application to the management of ground-
<br />water in the manner proposed by Alternative #7,
<br />At any given point in time, at least all then present
<br />users of water for the same purposes should
<br />share equally in the available water supply,
<br />Current Jsers should be favored over pOSSible
<br />future users only in extreme circumstances, such
<br />
<br />\I
<br />
<br />as those recognized for imposition of a mora.
<br />torium by the Nebraska Groundwater Manage,
<br />ment and Protection Act.
<br />Alternative #8 is another alternative which
<br />would be inappropriate as a sole governing factor
<br />for groundwater use, but clearly does have a role
<br />in an overail management scheme, Alternative
<br />#8 is very similar to current Nebraska prefer-
<br />ences law, including the results of the only
<br />Nebraska case, Prather v, Eisenmann, which thus
<br />far has interpreted statutory groundwater
<br />preferences, The Commission's rejection of AI,
<br />ternative #8 should by no means be conSidered a
<br />rejection of the need for groundwater prefer.
<br />ences, It is also not a rejection of any of the
<br />alternatives recommended in the report com,
<br />pleted in October of 1981 and entitled"Prefer-
<br />ences in the Use of Water",
<br />Having considerable appeal from an equity
<br />standpoint, Alternative #9 is rejected because of
<br />the impracticability of assessing liability
<br />between groundwater users on a comparative
<br />cause basis, Proving that one groundwater use
<br />interfered with another is extremely difficult and
<br />any attempts to quantify the degree of inter-
<br />ference would be virtually impOSSible in most
<br />situations,
<br />Alternative # 1 0 is rejected because it is not felt
<br />that permits to use ground water are necessary
<br />statewide at present. Large areas of the state
<br />continue to have adequate water supplies and
<br />are experiencing no decline in water levels and
<br />no deterioration in water quality, To require
<br />permits before initiation of use in such areas
<br />would seem to require needless paperwork and
<br />bureaucracy, However, permits should continue
<br />to be required in groundwater management
<br />areas and groundwater control areas, and before
<br />municipal or industrial water is transferred from a
<br />well field to the ultimate place of use,
<br />Alternatives #11 and #12 are very similar,
<br />differing only in the manner in which water would
<br />be allocated to individual overlying landowners,
<br />They both require quantification of the amount of
<br />water hydrologically available and an allocation
<br />of a portion of that amount to each landowner
<br />whether they're interested in utilizing it or not. To
<br />make either alternative work efficiently, it would
<br />need to be accompanied by legislation author'
<br />izing each landowner to sell his or her rights to his
<br />or her share of that available water supply, The
<br />Commission does not believe that granting the
<br />authority to market rights to use groundwater
<br />would be a sound policy decision for the state,
<br />The final alternative, Alternative It 13, has been
<br />discussed earlier under "Recommended Al-
<br />ternative", Reference should be made to the
<br />discussion there for details of the Commission
<br />recommendation regarding that alternative,
<br />
|