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GJJl'>b!t greater uniformity of application that should flow from more detailed legislative pronouncements_ Socia. Economic Impacts As a more sophisticated version of the Eastern Reasonable Use Rule. the Restatement Rule dI- minishes some of the disadvantages discussed under the Eastern Rule. Particularly. the Restate- ment Rule offers a landowner much more security than the Eastern Reasonable Use Rule while preserving a great measure of flexibility. A landowner is secure in a right to capture water found beneath his land as long as the capture does not result in unreasonable harm to another. While "unreasonable harm" is subject to judicial interpretation, the Restatement contains criteria constraining the choice. The flexibility of the rule probably allows a state to adopt most forms of regulation without fear of constitutional challenge. The equity impacts of the Restatement Rule cannot be determined accurately since much turns on specific holdings of reasonableness. As a rule of non-liability however, it tends to favor current users over future users. Physical.Hydrologic and Environmental Impacts Physical-hydrologic and environmental im- pacts of Alternative #6 cannot be determined with any degree of precision. Too much dependS upon the manner in which "unreasonable" is interpreted in judicial decisions. A potential for minimizing adverse consequences is present, however, given the flexibility of the alternative. Alternative #7: Adopt a First User Rule as the definition of ground- water property rights in Nebraska. Description and Methods of Implementation A recent law review article suggested three alternatives to the non liability rule set forth in RESTATEMENT (SECOND) OF TORTS 9 858 and discussed in AlternatIve #6.33 The first suggestion is discussed here and the other two in the next two alternatives. The authors' first proposal would incorporate principles of western prior appropriation law into groundwater property rights. The suggested rule would read as follows. A possessor of land or his grantee who uses groundwater from an aquifer is subject to liability for interference with the use of water. or lor damage to the land surface or structures upon the overlying land. caused to another whose use of specific nature and amount predates his use, unless such prior use con- stitutes waste34 The First User Rule is more certain than the Restatement of common law rules and hence, should encourage early investment and dis- courage litigation. The rule may not be perceived fair, however. since it prefers early, less valuable uses, over later. more valuable uses. Further. more. the rule may be difficult to administer because, at least in theory,each subsequent use would cause some injury to all prior uses located over a common aquifer. Some of the above diffi- culties could be lessened, however, by adopting a full-fledged prior appropriation system as dis- cussed in Alternative :# 1 O. Finally. a First User Rule does not prevent or control aquifer de- pletion. Socia-Economic Impacts A First User Rule gives a landowner greater security of right than some other rules provided the holder of the right is an early user. Favoring early users is not necessarily economically efficient. however, since early uses may be less valuable than later uses. It is thus necessary that rights and priorities be transferable if First User Rules are to lead to efficient results. A First User Rule also is somewhat infleXible since. once the rule is established, regulating the activity of early users would be constitutIonally suspect. The equity impacts of thiS alternative favor early users over later users and users of water over conservers of water. Since aquifer depletion is not controlled by a First User Rule, current users are favored over the public generally. This rule contains no preference between overlying owner and off-land users. Physical.Hydrologic and Environmental Impacts A lirst user rule. absent additional regulation, would likely lead to rapid aquifer depletions since some users would have an absolute right to continue pumping. The rule is more concerned with who gets prime access to groundwater than with permissible levels of extraction. Alternative #8: Adopt a Prefer' ence in Use Rule as the definition of groundwater property rights in Nebraska. 3-11