WSP03064 - Laserfiche WebLink

Home Browse Search

amount of water that can be withdrawn by an overlying owner exist, but there is at least a theoretical limit. 5) Water in place beneath the soil is not protected from exploitation by others and hence, little incentive to conser'lle groundwater exists. 6) There is no clear indication of when a "shortage" exists that would bring the "sharing" language common to many groundwater cases into play. 7) Neither those entitled to share in times of shortage nor the method of sharing are delineated. 8) A landowner has no means by which he can quantify the rights he has in ground- water found beneath his lands. 9) Limits that might be imposed on private exploitation of groundwater in order to protect public rights to the resource are not articulated. 10) Rights to use groundwater are not freely transferable to higher and better uses. 11) The property rights system does not provide for correlating groundwater and surface water rights. Whether these points constitute strengths or weaknesses is, of course, largely a matter of individual value judgment. FOOTNOTES ,. 208 Neb. 703, 305 NW.2d 614, rev'd, 50 U.S.L.W. 5115 (U.S. July 2, 1982). 2. The Nebraska Supreme Court has repeat- edly held that overlying landowners are "entitled to appropriate subterranean waters" found under their land. See, e.g., Olson v. Wahoo, 124 Neb. 802, 811, 248 NW. 304, 308 (1933) (emphasis added). 124 Neb. 802, 248 NW. 304 (1933). See generally Chapter One, supra. 124 Neb. at 811, 248 N.W. at 308. The groundwater right would thus be an- alogous to common law riparian surface water rights. Such rights are not acquired by use, nor are they lost by nonuse. They are defined in relation to the reasonable and correlative needs of all other landowners abutting a stream. 7. The constitutional difficulty arises from the existence of a property right in groundwater that is separate and distinct from an interest in land, although intimately tied to an in- terest in land. Landowners, under the theory, acquire a proportional interest in the waters of an underlying aquifer by virtue of their land ownership. This interest, however, is subject to the paramount right of the state to direct that water be used elsewhere, or not at all. To the extent that some ground- 3. 4. 5. 6. 2-4 water use is permitted, however, land- owners each may have an equal right to a fair share of the aquifer's production. Well drilling moratoria would deny some land- owners access to the aquifer thereby destroying their proportional interest in the aquifer production. The destruction of the groundwater right could thus be an uncon- stitutional taking unless compensation was paid. To the extent that new well moratoria could be characterized as merely regulation of land use, a taking might not arise since the right in question would be the right to land, and not the right to water. Since the value of the property right in land would be diminish- ed, but not extinguished, by the regulation, the regulation might not be characterized as a taking. Olson provides that a landowner cannot extract water "in excess of a reasonable and beneficial use upon the land which he owns, ...." See Olson v. Wahoo, 124 Neb. 802, 811, 248 NW. 304, 308 (1933). 10. Current statutory direction is limited to run- off controls. See NEB. REV. STAT. Ij 46- 664(1) (Reissue 1978). 1,. A common law action could presumably correlate the rights of all users to maintain an existing supply of groundwater, but the users would not gain a quantified right to continue a specified level of withdrawals indefinitely. Given public ownership of the water, correlation would only establish an upper limit on groundwater withdrawals; the state would remain free to set more stringent requirements. 12. See generally W. Rodgers, Environmental Law Ij 2.16 (1977). 13. See The Institutes of Justinian 2.1.1 (T. Cooper trans, & ed. 1841). 14. See generally Johnson, Public Trust Pro- tection for Stream Flows and Lake Levels, 14 U.C. Davis L. Rev. 233 (1980). 15. Seeid. 16. See generally Wilkinson, The Public Trust Doctrine in Public Lands Law, 14 U.C. Davis L. Rev. 269 (1980). But cf. City of Eau Clare v. Dep't of Natural Resources, 2 E.L.R. 20,512 (1972) (holding the public trust doctrine applies only to navigable waters, and hence not to ground- water). 18. See Niles Sand & Gravel v. Alameda County Water District, 37 Cal. App. 3d 924, 112 Cal. Rptr. 846 (1974), hearing denied (Cal. Sup. Ct., May 8, 1974),cert. denied,419 U.S.869 (1975). 19. See Johnson, supra note 12, at 242-44. 20. See generally Johnson, supra note 12. 8. 9. 17.