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r.l)~ ~, .1 Summary CURRENT StTUATION Source of Conflict The purpose of this study is to address a narrow, but important. issue in groundwater law, namely the specification of the properly rights to the ground water resource_ Except for the soil Itself. water is the most valuable natural resource in the State ot Nebraska As is becoming all too apparent. how- ever, the supply of this resource is not in- exhaustible. But scarcity is directly related to value and as water becomes more scarce it becomes more valuable. The result is increased attention paid to the nature and extent ofground- water property fights, as it is these rights that determine which of the state's citizens will directly benefit from groundwater supplies_ Current users are concerned that their access to water not be unduly restricted. Nonusers are concerned that supplies of water be available should they wish to initiate use at a future date. The general publiC is concerned that supplies of groundwater remain available to meet the needs of future generations and to continue 10 support an economy that has become very dependent on groundwater. Rural and urban residents alike depend on groundwater for a source of drinking water. Finally, groundwater feeds many of the state's streams. provides subirrigated crops in the state's river valleys. and is the source of lakes and wet meadows in the Sandhi lis. With so many of the state's citizens dependent in one way or another on groundwater supplies. the need to clearly understand groundwater property rights is essential. The nature and extent ot those property rights are significant not only to the constitutional bounds ot permissible regulation. but also to the relationships between individual groundwater users in areas where no regulations are in effect. - Nebraska Law According to the mosl recent Nebraska Supreme Court deciSion addressing the subject. State v Sporhase, groundwater in Nebraska IS public property Moreover, the Nebraska court seems to have concluded that groundwater remains publiC property even after it has been captured by pnvate landowners. The Sporhase case involved the constitution- ality of a Nebraska statute governing interstate exportation of groundwater withdrawn in Nebraska The Nebraska Supreme Court de- cision upholding the constitutionality of that statute was appealed to the United States Supreme Court where it was reversed. In arriving at its decision, the U.S. Supreme Court address- ed the state supreme courl's claims that ground- water in Nebraska was publicly owned. The U_S. Court dismissed such a claim as a means to avoid scrutiny under the Commerce clause of the United States Constitution and found that a reciprocity clause in the antiexportation statute did unduly burden interstate commerce. How- ever, the Court did not strike down the declar- ation of public ownership and in fact gave con- siderable support throughout its opinion to the real purpose of such a declaration - to demon- strate the state.s power to preserve and regulate the use of important resources. For the purposes of this report, the Nebraska Supreme Court declaration that groundwater is publicly owned appears to remain valid even though the state court decision was reversed on another point. Notwithstanding the public ownership con- clusion ot the Nebraska Supreme Court in the Sporhase opinion, an unbroken series ot cases beginning in the 1930's have stated that private landowners also have an interest in water found beneath their lands, a property interest defined by a unique Nebraska Rule of Reasonable Use. This rule has recently been confirmed in a general way through the enactment of Legis- v