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3-18 3) fair share of the groundwater found be- neath lands that they can own. The right of overlying landowners to capture and use groundwater found beneath the surface of their lands is limited to the amount of groundwater that can be put to reasonable and beneficial use on overlying land owned by the land- owner. Any use of groundwater on the overlying land is declared to be reasonable and beneficial provided that the use is suit- able to the character of the overlying land and provided that the use does not con- stitute waste. Captured groundwater may not be trans- ferred off the overlying land owned by the withdrawing party without express public approval. The right of each and every landowner overlying a particular aquifer to capture and use groundwater found beneath their lands is correlative with and limited by the rights of all other overlying owners. If groundwater supplies are insufficient to meet the reasonable and beneficial needs of all overlying owners, overlying owners are entitled to have existing supplies apportioned among themselves. Groundwater supplies are insufficient to meet the reasonable and beneficial needs of overlying owners whenever average annual withdrawals are expect- ed to exceed average annual natural recharge. In apportioning groundwater in times of shortage, consideration shall be given to the geologic and hydrologic parameters of an underlying aquifer, the amount of water in storage, the number of acres overlying the aquifer, the character of the land overlying the aquifer, and the size, character, and underlying aquifer char- acteristics of particular tracts of land among which the water is to be ap- portioned. Judicial apportionment of groundwater in time of shortage shall be without regard to history of use and without regard to present or future intent to commence or continue use. Supplies of groundwater in excess of the reasonable and beneficial needs of over- lying owners, may, with public consent, be transferred away from the overlying lands and overlying landowners will not be deemed to have suffered any compen- sable injury as a consequence of the transfer. 4) 5) 6) 7) 8) 9) 10) 11 ) 12) Landowners who acquire groundwater property rights pursuant to the above sections may not sell, give, lease, or in any manner convey the rights to water so acquired without the express consent of the public. 13) Nothing in the above sections shall be construed to prevent parties possessing the power of eminent domain from acquir- ing the rights of overlying owners through eminent domain proceedings. While the above formulation is not necessarily the way in which the Nebraska Supreme Court would resolve all issues of Nebraska law, it is consistent with existing law and could probably be implemented without constitutional object- ion. A major limitation of the approach, however, is the use of judicial allocation in place of admin- istrative allocation. It would likely be more ex- pensive to allocate through repeated litigation than through administrative actions. Further- more, judicial allocation over time is less likely to yield consistent results than would an adminis- trative procedure. Additional major weaknesses of the above approach include the absence of any explicit mechanism to consider the mining of groundwater, prohibitions on transfers and perhaps pooling of groundwater rights, the lack of any written documentation of the existence of a groundwater right, and lack of specific direct- ives as to how specific provisions such as the "public trust" and "apportionment" are to be implemented. On the other hand, a formulation similar to that above would clarify many nebulous points in current law and give the courts greater legislative direction than has been present in the past. Socio-Economic Impacts Codifying existing law would result in a sub- stantial increase in landowner's security of right to groundwater. All else being equal, an increase in security of right would enhance the prospect of achieving economic efficiency. Codifying exist- ing law, however, would significantly decrease flexibility that might be required to address changed circumstances in the future. Thus, the relative efficiency of the perceived existing set of rules is all important. Although existing law as defined in this alternative is not necessarily efficient, it is, for the most part, consistent with efforts to achieve economic efficiency. A major problem with existing law, however, is its silence on the issue of groundwater mining, an activity that might, at times, be efficient. From an equity perspective, this alternative would transfer wealth from the general public