WSP06827

• 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

C J ;

variety of specific management options 10 be
used to implement the policy goals suggested by
the property rights themselves. This study. how-
ever. is limited to the narrow issue of property
rights. not the broader issues of management or
regulation. These broader management issues
were addressed in the Ground Water Reservoir
Management Report approved by the Com-
mission in January. 1982. Nevertheless. speCifi-
cations of the groundwater property rights
system is one possible starting point for any
system of groundwater management. In areas
where public management systems are not
needed or at least not implemented, ground-
water property rights may be the only guide to
resolution of disputes between individual users.

ALTERNATIVE LEGISLATIVE POLICY
ACTIONS

Alternative #1: Make no changes in
present policy.
Alternative One anticipates no additional leg.
islative action speCifically designed to define
the nature or extent 01 individual property rights
in groundwater. Present pOlicies as described in
this report would remain intact. but would be
subject to later interpretations and refinements
by the courts.
It is not the intent of Alternative One to
prevent any additional legislation regarding the
use of groundwater. New policies relating to
public management of groundwater supplies or
to relationships between individual users of
groundwater could be enacted. Only alternatives
designed to directly define a groundwater
property right would be precluded by this altern-
ative. It should be recognized. however, that
action on other groundwater policies could in-
directly have as much impact on the nature and
extent of the groundwater property right as
enactment 01 anyone of the other twelve altern-
atives in this report.
Alternative #2: Adopt the English Rule of
Absolute Ownership as the definition of
groundwater property rights in
Nebraska.
Alternative #3: Adopt the American Rule
of Reasonable Use as the definition of
groundwater property rights in
Nebraska.
Alternative #4: Adopt the California Rule
of Correlative Rights as the definition of
groundwater property rights in
Nebraska.
Alternatives Two through Four represent the
three classical expreSSions 01 groundwater
property rights. the English Rule. the American

Rule. and the California Rule. Alternative Two is
a pure rule of capture. Landowners are tree to
capture as much water as they can and are free to
use it however they wish. wherever they wish. It
encourages a maximum rate of aquifer depletion
as landowners attempt to outcapture their
neighbors. As a pure rule of capture, it is in-
compatible with any degree of regulation. To the
extent groundwater IS subject to a publiC trust.
the EngliSh Rule also would be mcompatible with
the state's fiduciary obligations under the trust.
Alternative Three also is a rule of capture but
landowners are limited to the amount of water
that they can put to reasonable and beneficial
use on overlying land that they own. As a practical
matter, the American Rule protects agricultural
users from the demands of municipal or other off-
land users. Absent additional regulation. how-
ever. the American Rule does little to slow the
rate of aquifer depletion. Alternative Four is a
modification of the American Rule. The American
Rule generally governs unless an overdraft
occurs. in which case landowners must share
available supplies by making proportional re-
ductions in use. Excess waters over and above
the amount needed by overlying landowners are
available for appropriation for use on distant
lands. In theory. the California Rule encourages
maximum use of average annual recharge while
limiting total withdrawals to the safe yield of the
aquifer. Groundwater is allocated among over-
lying landowners and distant users according to
complex rules. In practice, however. the major
impact of the California Rule has been to
determine who is required to pay for more
expensive imported water.
Alternative #5: Adopt a Rule of Reason-
able Use as developed in certain eastern
states as the definition of groundwater
property rights in Nebraska.
Alternative #6: Adoptthe reasonable use
rules found in the RESTATEMENT
(SECOND) OF TORTS ~ 858 as the defin-
ition of groundwater property rights in
Nebraska.
Alternatives Five and Six give landowners a
right to use as much groundwater as they can.
provided that their use is "reasonable" in re-
lation to the needs of other landowners.
Under Alternative Five, reasonableness is the
subject of a case'by.case judicial determination_
Under Alternative Six, reasonableness is de-
termined by reference to a list of enumerated
criteria. Both alternatives permit great flexibility
in reaching equitable solutions to groundwater
use conflicts but neither alternative gives the
landowner any certainty of right.
Alternative #7: Adopt a First User Rule as
the definition of groundwater property
rights in Nebraska.

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