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<br />Description and Methods of <br />Implementation <br /> <br />The second alternative suggested in the Lowe <br />article35 would limit liability for groundwater in- <br />terference to situations in which higher prefer- <br />ence uses were injured by lower preference <br />uses. Preferences would be set by the legislature <br />or by an administrative agency. Such a rule, <br />which would be an extension of Nebraska's <br />current system of statutory preferences,36 might <br />read as follows: <br />A possessor of land or his grantee who uses <br />groundwater from an aquifer is subject to <br />liability for interference with the use of water, <br />or for damage caused to the land surface or <br />structures upon the overlying land, owned by a <br />preferred user. The following uses are listed in <br />order of preference: <br /> <br />1) .. . <br />2) . . . <br /> <br />n) . . . <br />The Preference in Use Rule essentially is <br />grafted onto the English or American Rules and is <br />predicated on an equitable principle which holds <br />that similar users should share the burden of <br />aquifer depletion or well interference caused by <br />their use but should not be required to share the <br />burdens imposed by dissimilar, less preferred <br />users. Preferences could be based on the per- <br />ceived relative social value of the uses or on the <br />magnitude of average withdrawals with varying <br />economic consequences. As with the previous <br />alternative, this rule, by itself, does not prevent <br />aquifer exhaustion. <br /> <br />Socio-Economic Impacts <br /> <br />A Preference in Use Rule promotes economic <br />efficiency only if the priorities or preferences <br />established reflect relative economic values of <br />water use. Rights of preferred users are secure <br />while rights of less preferred users are not <br />secure. A major economic criticism of the rule is <br />its inherent inflexibility once preferences are <br />established. Unless they are modified over time <br />to reflect changing economic relationships, in- <br />efficient water use will be encouraged. The <br />possibility that preferences could change, how- <br />ever, tends to reduce security of right. <br />Equity impacts would depend on the precise <br />list of preferences adopted. Preferred users, <br />however, would be free to injure less preferred <br />users under this alternative and the less pre- <br />ferred users would not need to be compensated <br /> <br />3-12 <br /> <br />for their loss. In addition, current users would be <br />favored over future users and the public gener- <br />ally. <br /> <br />Physical-Hydrologic and Environmental <br />Impacts <br /> <br />The physical-hydrologic and environmental <br />impacts of this rule cannot be determined absent <br />knowledge of the specific preferences establish- <br />ed. In addition, the rule offers no assurance that <br />the rate of aquifer depletion would be regulated. <br />The most that can be said is that widely varying <br />impacts would accompany alternative schemes. <br /> <br />Alternative #9: Adopt a Compara- <br />tive Cause Rule as the definition <br />of groundwater property rights in <br />Nebraska. <br /> <br />Description and Methods of <br />Implementation <br /> <br />The final alternative suggested in the Lowe <br />article37 was stated by the authors as follows: <br />A possessor of land or his grantee who uses <br />groundwater from an aquifer is subject to <br />liability for resulting interference with the use <br />of water, or for damage to the land surface or <br />structures upon the overlying land, in the <br />proportion to which his use during which the <br />impairment or damage was caused bears to all <br />uses of groundwater from the aquifer during <br />that period.38 <br /> <br />The Comparative Cause Rule recognizes that <br />all users of groundwater are responSible for <br />water table declines and other types of ground- <br />water interference. Consequently, the rule <br />requires that costs be shared in proportion to the <br />quantity of water extracted from the aquifer. <br />Thus, if B's new use caused A to incur a $1000 <br />expense to deepen his well and B used three <br />times as much water as A, B would be required to <br />pay $750 and A would be required to pay $250 to <br />deepen A's well. As promulgated by the authors, <br />however, the Comparative Cause Rule also in- <br />corporates first user principles since, in the <br />above example, if B's use was prior, A would have <br />to bear the entire cost of constructing a well deep <br />enough to reach the aquifer. <br />A major problem with the Comparative Cause <br />Rule is in apportioning liability as the number of. <br />parties extracting water from an aquifer in- <br />creases. Furthermore, any new use overlying the <br />aquifer is potentially a new source of litigation, at <br />least once the point is reached where average <br />annual withdrawals exceed the average annual <br /> <br />" <br />