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G008Sf1 DISCUSSION OF THE ALTERNATIVES Alternative #1: Make no change in present policy Description and Methods of Implementa- tion Alternative #1 provides for no additional legis- lative action specifically designed to define the nature or extent of individual property rights in groundwater. Existing case law would be allowed to stand as would the provisions of LB 375.8 Occasional interpretations and refinements of current policy could be expected through supreme court decisions. Probably the best expressions of current policy are found in two supreme court cases and one Nebraska statute which respectively provide as follows: " ....the owner of land is entitled to appropriate subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, especially if such use is injurious to others who have sub- stantial rights to the waters, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable pro- portion of the whole, ..." Olson v. City 01 Waho09 The public, through legislative action, may grant to private persons the right to the use of publicly owned [ground] waters for private purposes; but .... the public may limit or deny the right of private parties to freely use the water when it determines that the welfare of the state and its citizens is at stake." Slate Ex. reI. Douglas v. Sporhase 10 "Every landowner shall be entitled to a reason- able and beneficial use of the groundwater underlying his or her land, subject to the pro- visions of Chapter 46, article 6, and the cor- relative rights of other landowners when the groundwater supply is insufficient for all users." LB 375,1982 Nebraska Legislature.11 Additionai discussions of current policy and its effects can be found in Chapters One and Two. Socio-Economic Impacts Current policy provides landowners with a considerable degree of certainty while also retaining a level of flexibility for future public actions if deemed necessary. Basically, the land- owner's rights to use the water supply publicly owned is subject only to the correlative rights of others and to public decisions made by or through the authority of the legislature. Certainty in use diminishes where groundwater is being mined or where conflicts are occurring. Decisions to limit or deny use of the water in such situations can result in an economic loss to the landowner either in a previously made in'llest- ment in equipment or perhaps even in the value of the land itself. Physical-Hydrologic and Environmental Impacts Under current policy, development of ground- water can be expected to continue in those areas where supplies are adequate. Development will depend more on economics, water supply, and availability of energy than it will on the nature or extent of the individual's property right in the groundwater. Alternative #2: Adopt the English Rule of Absolute Ownership as the definition of groundwater property rights in Nebraska. Description and Methods of Implementation The English Rule provides that landowners have an absolute right to capture and use water found beneath their lands. It is popularly viewed as giving overlying landowners complete owner- ship of the water found beneath their lands. If that were literally true, no landowner would have the right to pump water that reached his well by percolation from beneath a parcel of land owned by another since to do so would be to take another's property. in fact, the English Rule is a pure rule of capture more properly viewed as a rule of non-ownership, a withdrawal of law rather than a rule of iaw. Landowners can hardly be said to "own" water found beneath their land if courts give such landowners no remedies against the acts of adjoining landowners. Given the total withdrawal of law under the English Rule, con- siderable doubt exists whether Nebraska could, at least by statute, adopt the English Rule. The English Ruie was developed before men had a clear understanding of groundwater principles. Indeed, the fact that groundwaters moved beneath the soil out of sight of men was cited by the court in the leading case of Acton v. Blundell'2 as justification for adopting a pure rule of capture as the definition of a groundwater property right. Not surprisingly, a majority of 3-3