WSP03064

• File Number: 8407.400
• Description: Platte River Basin - River Basin General Publications - Nebraska
• State: NE
• Basin: South Platte
• Water Division: 1
• Date: 1/1/1983
• Author: Nebraska Natural Res
• Title: Policy Issue Study on Selected Water Rights Issues - Property Rights in Groundwater
• Water Supply Pro - Doc Type: Report/Study

Cf:(JS58

Possible limits on state power to divest itself of
groundwater rights are suggested by the public
trust doctrine, which holds that certain types of
natural resources are held in trust by government
for the benefit of the general public. Natural
resources impressed with a public trust are pro-
tected from dissipation and unfair dealing.12
Consequently, if applied to groundwater in
Nebraska, the public trust doctrine might bar
state sanctioned modifications of groundwater
property rights that would give landowners
expanded private rights to water found beneath
their lands.
The history of public rights in water dates to the
days of the Roman Empire.' 3 At the same time,
the history of the development of the common
law is the history of the development of private
property rights. The tension between public and
private rights to water has led to the development
of accommodation doctrines. One such accom-
modation is the public trust doctrine.
Historically, the public trust doctrine was used
to preserve public ownership of the beds and
shores of navigable waters to protect public
rights of fishing, navigation, and commerce.'4
More recently, the doctrine has been used to
protect public interests in such in-place uses of
water as bathing, swimming, boating, open
space, climate, aesthetics, environmental
quality, and ecoiogical diversity. Viewed
functionally, the public trust can be seen to
operate in riparian rights cases that protect lake
and stream levels, in federal navigation servitude
cases that protect the right of navigation, and in
cases which protect public recreation rights in
streams which run across privately owned
beds.15 Moreover, a variation of the public trust
doctrine seems to have found widespread appli-
cation to the federal public lands.16
The public trust doctrine apparently has never
been explicitly applied to groundwater.17 On the
other hand, a California court has found a public
ser'llitude for groundwater and groundwater con-
ser'llation purposes inherent in C;:llitornia's cor-
relative rights doctrine.18 Furthermore, many of
the reasons that have led to impOSing a public
trust on surface waters, such as the uniqueness
and importance of the resource and the need to
preserve it for use by all for all time, apply with
equal force to groundwater.
Although the existence of a publiC trust does
not preclude change or forbid use ot natural
resources, the doctrine does impose a fiduciary
duty on the state. Thus, the state must assure that
trust resources are used forthe benefit of all and
not the few, and that trust resources are pre-
ser'lled from seriously disrupting depletions.
Traditionally, the public trust doctrine has been
invoked in a variety of ways to enforce this

fiduciary duty.19 Thus, the doctrine has been
used as follows:
1) to require express legislative action
betore trust property can be committed to
private uses;
2) to invalidate legislation that would
transfer public property into private
hands in violation of the trust;
3) to uphold the power of the legislature to
rescind a purported transfer of publiC
trust property;
4) to limit excessive delegation of power
over trust property to private parties;
5) to require broad based decision-making
where trust properties are at issue;
6) to limit the rights of landowners who own
stream beds from interfering with public
use of the stream;
7) to require comprehensive water planning
before significant appropriations of water
for energy production could be approved;
and
8) to require reasonable efforts to mitigate
harm to a public trust resource.20
If applied to Nebraska groundwater, the publiC
trust doctrine would limit significantly the
number of property rights systems that could
pass constitutional muster. By restricting the
power of the legislature to vest groundwater
property rights in private hands, imposition of a
trust would protect public rights to groundwater.
In addition, the public trust doctrine might limit
significantly the power of the legislature to
delegate authority over groundwater property
rights to administrative agencies. Although the
issue is by no means clear, Sporhase provides a
strong basis for arguing that such a public trust is
impressed on the state's groundwater resources.

SUMMARY

The nature and full extent ot groundwater
property rights in Nebraska remains somewhat
uncertain. However, with the benefit of current
cases, statutes, and some speculation, the
nature and extent of those rights may be sum-
marized by the following points:
1) Private landowners may have no more
than a political assurance of continued
rights to use groundwater, thus giving the
legislature great latitude in designing and
implementing legislation to manage
groundwater resources.
2) It may be possible to alter groundwater
preferences without compensating those
disadvantaged by the change.
3) Groundwater users may gain no rights
from a long history of uninterrupted use of
the groundwater resource.
4) No clearly defined upper limits to the

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