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

GOOS5~

CHAPTER 3
ALTERNATIVE LEGISLATIVE
POLICY ACTIONS

INTRODUCTION

Scope of Chapter

Previous chapters have analyzed Nebraska
groundwater property rights in some depth and
have discussed the strengths and limitations of
existing law. The Nebraska system of ground-
water property rights is unique in American juris-
prudence, though it borrows heavily from more
traditional property rights systems adopted in
other states. The salient feature of Nebraska law
is public ownership of groundwater. While
Chapter Two discussed possible limits on the
power of the state to vest public property in
private hands, the state apparently has great
power to specify a new system of private
groundwater rights. This chapter lists alternative
systems of property rights and assumes that the
state has the power to implement them. In fact,
however, state power may be limited under the
public trust notions discussed earlier. Such limit-
ations might act as a bar to adopting property
rights systems that vest too much control of the
groundwater resource in private hands.
No alternative was included because it was
thought to be politically acceptable. Similarly, no
alternative was excluded because of political
unacceptabiiity. An attempt was made to fairly
and objectively present the full range of altern-
atives available.
For the most part, the policy alternatives listed
in this chapter are mutually exclusive. Adoption
of one alternative necessarily precludes
adoption of another alternative as the overall and
sole poliCY for the state. A few of the alternatives,
such as Alternatives #8 and # 1 0, could be
combined with others if care is taken on the
methods of combination.
Finally, it should be noted that the list of policy
alternatives presented in this chapter is not
necessarily exhaustive. Possible alternatives are
limited only by the imagination. The range of
alternatives listed, however, does fairly cover the

subject. Additional alternatives likely would be
variations of those set forth in this chapter.

Identification of Alternatives

Alternative # 1: Make no change in present
policy.
Alternative #2: Adopt the English Rule of
Absolute Ownership as the definition of
groundwater property rights in Nebraska.
Alternative #3: Adopt the American Rule of
Reasonable Use as the definition of ground-
water property rights in Nebraska.
Alternative #4: Adopt the California Rule of
Correlative Rights as the definition of
groundwater property rights in Nebraska.
Alternillive #5: Adopt a Rule of Reasonable
Use as developed in certain eastern states
as the definition of groundwater property
rights in Nebraska.
Alternative #6: Adopt the reasonable use rules
found in the RESTATEMENT (SECOND) OF
TORTS Ij 858 as the definition of ground-
water property rights in Nebraska.
Alternative #7: Adopt a First User Rule as the
delinition 01 groundwater property rights in
Nebraska.
Alternative #8: Adopt a Preference in Use Rule
as the definition of groundwater property
rights in Nebraska.
Alternative #9: Adopt a Comparative Cause
Ruie as the definition of groundwater
property rights in Nebraska.
Alternative #10: Adopt a groundwater property
rights system where rights are created and
evidenced by securing a permit from a state
agency.
Alternative # 11: Quantify the amount of water
hydrologically available beneath particular
surface formations and give each land-
owner a vested right to withdraw a particular
quantity of water based on the total number
of acres of overlying land owned by the
landowner.

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