<br />measures enacted by the Legislature,
<br />In the last several years, the Legislature has
<br />exercised its authorities in this regard on several
<br />occasions, The action most directly related to
<br />this study was taken in the enactment of LB 375
<br />during the 1982 session of the Nebraska Legis-
<br />lature, That bill establishes a comprehensive
<br />system for management of groundwater outside
<br />of groundwater control areas, It includes in its
<br />initial section the following statement about
<br />property rights in groundwater.
<br />"Every landowner shall be entitled to a
<br />reasonable and beneficial use of the
<br />groundwater underlying his or her land,
<br />subject to the provisions of Chapter 46,
<br />article 6, and the correlative rights of other
<br />landowners when the groundwater supply is
<br />insufficient for all users.',33
<br />This legislative statement about property
<br />rights generally restates case law, but does not
<br />do so precisely, The significance of any differ'
<br />ences between what the court has said and what
<br />the Legislature has now enacted will not be
<br />known until the courts have been asked to in'
<br />terpret this legislative expression, Also unknown
<br />is whether this legislative action has had the
<br />effect of vesting a property right in groundwater
<br />where none previously existed, If so, the bill could
<br />make future attempts to manage the ground,
<br />water supply more difficult or in some cases
<br />perhaps impossible, Since LB 375 makes these
<br />property rights subject to Chapter 46, article 6
<br />(Nebraska groundwater statutes), any such
<br />effects should, however, be minimized,
<br />As indicated earlier, a large number of other
<br />legislative actions also affect, though not as
<br />directly, the nature and extent of the ground,
<br />water property right. Well spacing statutes,34 the
<br />first of which was passed in 1957, limit, and in
<br />some cases may prevent, installation of wells by
<br />groundwater users, Under the Ground Water
<br />Management and Protection Act35 passed in
<br />1975,and amended in 1982 by LB 375,36control
<br />areas and management areas can be
<br />established and regulations can be adopted by
<br />natural resources districts for the purpose of
<br />addressing' several different types of ground-
<br />water problems, Once those control areas or
<br />management areas are established, permits
<br />must be obtained before large capacity wells can
<br />be drilled,37 All wells, including those existing
<br />prior to the designation of the control area or the
<br />management area, are subject to pOSSible reg-
<br />ulations that restrict the amou nt of water that can
<br />be pumped,38 Where wells can be located is also
<br />subject to regulation,39 In extreme situations,
<br />and in control areas only, the Groundwater
<br />Management and Protection Act authorizes the
<br />establishment of moratoria on additional well
<br />
<br />1-6
<br />
<br />drilling40
<br />I ndustries which plan to use more than 3,000
<br />acre-feet per year and municipalities are also
<br />subject to special permitting requirements and
<br />are able to transport water for their intended
<br />purposes only if certain criteria can be sat is-
<br />fied41
<br />The constitutionality of most of these regula-
<br />tory measures has not been tested in the
<br />Nebraska Supreme Court. Discussion of some of
<br />the issues that would be involved in addressing
<br />such constitutionality is contained in Chapter 2,
<br />However, if these regulatory measures are con-
<br />stitutionally sustained, their implementation
<br />certainly has an effect on the nature and extent of
<br />the ground water property right. These effects
<br />could not be ignored in any consideration of that
<br />right or of any changes in it.
<br />
<br />SYNTHESIS AND CONCLUSION
<br />
<br />Recent cases decided by the Nebraska
<br />Supreme Court and recent legislative actions
<br />have clarified many of the issues relative to
<br />groundwater property rights that have been
<br />unclear in the past. Significant questions remain
<br />to be answered, however. Nevertheless, it is
<br />possible to articulate presently existing property
<br />rights to groundwater with some degree of
<br />confidence, The following principles seem more
<br />or less well established in current law,
<br />
<br />1. Groundwater in Nebraska is public
<br />property.
<br />
<br />Any doubt that this is the case was clearly
<br />dispelled by the Nebraska Supreme Court's
<br />Sporhase decision, Consequently, private use of
<br />public water is always subject to regulation and
<br />control by the legislature, Furthermore, the cases
<br />strongly suggest that groundwater remains
<br />public property even after permissive capture by
<br />private landowners, If so, the legislature could
<br />freely regulate use in addition to its power to
<br />regulate withdrawals, In fact, it may be im'
<br />possible to conceive of a regulation governing
<br />groundwater use that, if properly drafted, would
<br />fail to survive a constitutional challenge,
<br />
<br />2. Absent public authorization, a land-
<br />owner can withdraw only that amount of
<br />water which he can putto reasonable and
<br />beneficial use on overlying land that he
<br />owns.
<br />
<br />The traditional American Rule limitations on
<br />place of use and prohibition of waste establish an
<br />
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