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

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amount of natural recharge. Finally, as with the
previous two alternatives. no provision in the rule
prevents or retards the economic exhaustion of
the aquifer. Consequently, this alternative. and
the two preceding ones, have serious deficien-
cies when applied to jurisdictions where ground-
water mining and water shortages are common
occurrences.

Socio-Economic Impacts

The notion of sharing responSibility for costs of
groundwater depletion among new and old users
tends to promote economic efficiency for forcing
all users to consider part of the costs of aquifer
depletion. A truly efficient Comparative Cause
Rule. however, would be applied independent of
a priority use rule. Economically, potential gains
in efficiency from adopting a rule of comparative
cause likely would be offset by the cost of as-
certaining the relative contributions to cause, a
problem greatly increased in heavy use areas.
Consequently, the rule probably is not feasible in
water short jurisdictions.
The equity impacts of this alternative favor
current users over the public generally since the
alternative contains no provision to prevent or
retard the premature economic exhaustion of the
aquifer. Early users are favored over later users.
b'" not to as great an extent as would occur
under a pure first user rule.

Physical-Hydrologic and Environmental
Impacts

This alternative, as have several previous al-
ternatives, concerns allocation of the economic
costs associated with aquifer declines rather
than with the permitted rate of decline or with
maintenance of an aquifer. Absent additional
regulation. economic exhaustion of the aquifer
remains a possibility. Without knowing the nature
of any regulation. however. physical-hydrologic
and environmental impacts cannot be ascer-
tained.

Alternative #10: Adopt a ground-
water property rights system
where rights are created and
evidenced by securing a permit
from a state agency.

Description and Methods of
Implementation

A wide vanetyof statutory permit systems have
replaced common law groundwater property
rights in many eastern and western states. The

essence of a permit system is a requirement that
property owners receive permission from a state
agency belore they may drill a well and pump
from it. Absent a permit. landowners have no
property right in underlying water that is subject
to constitutional protection.39
In permit states the terms of the permit define
the nature of the groundwater property right. In
many western states a system of prior appropri-
ation is used. A permittee is limited to the amount
of water that can be beneficially used on over-
lying lands with permits issued on a first-come,
first served basis. The number of permits that will
be issued in a particular location varies from
state to state in correlation with the degree to
which a state permits mining of the groundwater
aquifer.
Since most substantive rules of law can be
incorporated inlo a permit which then serves as
the source of a groundwater property right, the
major value of permit systems is the degree of
management that they facilitate_ Consequently,
permits are generally incorporated into "critical
area" legislation in states which lack statewide
water management programs. Permits may also
provide greater certainty to water right holders.
While permits do not inherently increase certain-
ty of rights. they may do so if the parameters of
the permit are drafted with specificity in mind.
Finally, a major value 01 permit systems is the
lOcreased ability to monitor water use changes.
Even where active state or local water manage-
ment is not contemplated. permits provide an
important source of data that can be used to
identify potential future problems at a time when
they can be averted at a relatively low cost.

Case Study

Colorado, a prior appropriation permit state.
uses a two part test to determine the amount 01
nontributary groundwaterdQ available for appro'
priation. Regulation varies depending on
whether the groundwater is found in a designa-
ted or nondesignated basin. Within a designated
basin, new appropriation permits will be issued
unless the current rate of pumping in a circular
area within a three mile radius of the proposed
well equalS or exceeds the rate of pumping that
would result in a 40% depletion of the available
groundwater in that area over a 25year period.41
The three mile rule was adopted to implement a
statutory provision empowering the Colorado
Ground Water Commission to deny an appli.:a-
lion for a groundwater appropriation if it finds that
the proposed appropriation will unreasonably
impair existing water rights from the same
source. taking into account the area, geologic
conditions. annual recharge. the priority and

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