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000857 . , CHAPTER 2 CRITICAL ANALYSIS OF EXISTING LAW INTRODUCTION Uncertainty has not been eliminated in the existing law of groundwater property rights in Nebraska. This uncertainty is particularly pro- nounced with respect to the right of an individual iandowner to use water found beneath the surface of his land. Recent Nebraska Supreme Court opinions concerning groundwater, parti- cularly State ex. reI. Douglas v. Sporhase,l con- firm that the groundwater itself is public property. From a landowner's point at 'IIiew, however, many questions remain unanswered about his or her rights to use that water. Such questions include: 1. Are private rights to use groundwater anything more than mere permissive licenses that can be altered or revoked at will by the state? 2. Must landowners actually use ground- water to acquire groundwater property rights? As a corollary question, would moratoria on new drilling sur'lli'lle con- stitutional scrutiny absent payment of compensation to those prohibited from drilling new wells? 3. Do groundwater users have a vested right to continue groundwater use or can the state order existing wells to stop pumping temporarily or permanently without pay- ment of compensation? 4. Can current statutory use preferences be altered without payment of compen- sation if existing uses are adversely affected? 5. Can the state regulate the quantity of water subiect to capture and can the state apply such regulations to existing users without payment of compensation? 6. What means, if any do landowners have to protect their source of groundwater supply from encroachment by others? 7. Do landowners have any means for forcing a quantification of their private rights of use? In addition, the current law of groundwater rights is somewhat uncertain as to public rights to use the resource. This uncertainty exists despite the Clarifying language of Sporhase. Specifically: 1. Does the state have unlimited power to appropriate and use groundwater for public purposes? 2. Are there any limits on the power of the state to authorize private use of ground- water? As a corollary question, is ground- water in Nebraska impressed with a public trust? Much of the uncertainty typified by questions raised above probably cannot be eliminated with- out litigation since constitutional issues are in- volved. Legislative judgments that fall within the outside parameters ot constitutionality, however, will be sustained. Consequently, the strengths and limits of the existing set of groundwater property rights can be found by analyzing current rights in an attempt to delimit the power of the legislature to regulate groundwater capture and use. In contrast to the uncertainties noted above, Nebraska groundwater property rights are char- acterized by extreme rigidity in some other respects. For example, neither groundwater nor the right to capture and use groundwater can be transferred apart from the land without express authorization of the state. Strengths and weaknesses of existing law can best be identified by focusing on two broad issues: 1) What protection does current law give private landowners who want to produc- tively use or conser'lle groundwater found beneath their land, that is, how are private rights protected? 2) How, if at all, does current iaw limit the power of the legislature to vest public groundwater in private hands, that is, how are public rights protected? PROTECTION OF PRIVATE RIGHTS Despite the assertion of Sporhase that ground- water is public property in Nebraska, earlier cases seemingly established some private right of use. In those'areas where the legislature has 2-1