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<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 />