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

CUi.H\"U

upper limit to the right of private landowners to
withdraw groundwater Given publiC ownership
of the groundwater. the legislature retainS the
power to define what shall constitute reClsonable
and beneficial use. Absent legislative directive. it
seems likely that any use of water on the over-
lying land suitable to the character of the land
would be deemed reasonable and beneficial as
long as the water was not wasledJ;? or used for
malicious purposes.

3. If aquifer supplies are insufficient to
meet the reasonable and beneficial
needs of all overlying owners. ground-
water supplies are SUbject to apportion-
ment among the overlying owners.

Although apportionment has never been
accomplished judiCially In Nebraska. repeated
case references to "sharing In time of shortage"
leave little doubt that this element of the
California Rule has been incorporated tnlo
Nebraska case law Precisely hOw sllch waler
would be apportioned or when a shortage is
"triggered" have never been established hy
deCision. Presumably a '.shortage" may exist to
activate the correlative rights apportionment
whenever an aquifer is depleted below its long
run sustainable Yield level. Jl1 other words. when-
ever an aquifer is mined As to the apportionment
itself. a variety of possibilities exist An attempt
could be made to hydrologically estimate the
relative proportion of the aquifer thaI underlies a
particular tract of overlying land and to apportion
accordingly- Another alternative would be 10
establish a uniform allocation per acre of surface
area or overlying lands. A third possibility would
be to apportion water based on the character of
the overlying land. for Instance. apportioning the
bulk of the allocated water to overlying irrigable
land in rural areas It is unclear. however. whether
apportionment would limit use of water to the
apportioned Quantity or whether apportionment
would merely entitle injured parties \0 compen-
sation from others for excessive use.

4. Supplies of groundwater in excess of
those necessary to satisfy the reason-
able and beneficial uses of overlying
owners may. with public consent. be
transferred away from the overlying
lands without any overlying landowners
suffering a compensable injury.

Although this rule has never been explicitly
stated by the Nebraska Supreme Court it does
seem to be the clear Implication of the Metro-

po/itan Utilities case and it is consistent with
publiC ownership of groundwater and with the
California Rule of correlative rights.

5. Among members of the same preference
class. overlying owners have no right to
maintenance of a particular water table
or artesian head.

This rule was announced in Prather. An
exception to the rule might occur in the event of
an apportionment if the apportionment con-
templated maintenance of a long run static water
table.

6. Among members of different preference
classes. preferred users are protected
from unreasonable reductions in the
water table or unreasonable reductions
in artesian head caused by the actions
of less-preferred users.

ThIS rule also follows from Prather. It is not clear
whether all subsequent Interferences with prior
preferred uses are unreasonable or whether a
more sophisticated balancing of the equities of
competing users will be used. Furthermore. it is
not clear whether or not a subsequent preferred
user can enforce a right to a water level or
artesian head against a prior less preferred user.
II seems likely. however. that a preferred user
must have a current use interfered with by a
subsequent non+preferred use to recover
damages.

7. Subirrigation of crops is a reasonable
and beneficial use of groundwater.

ThiS is one implication of Luchsinger It may.
nevertheless. generally prove impossible to
maintain water levels required for subirrigation
since presumably sllblrrigation and surface irri-
gation would fall with the same preference class.

Consequently undel Prather. a landowner
would have no fight 10 maintenance of water
levels for subirrigation purposes against a
pump irrigator responsible for a decline in
the water table

Additional uncertainties exist under the series
of cases set forth above These uncertainties and
Questions are discussed in the next chapter.
which bnefly discusses the limitations inherent
in the presently existing set of property rights. at
least as articulated above

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