Legislative Finding Would Codify Land, Water Rights Common Law

Lincoln – The Natural Resources Committee heard testimony Jan. 22 on a proposed legislative finding regarding the separability of groundwater rights and land ownership.

Venango Sen. Dan Hughes’ LB 802 would have the Legislature would declare “that the right to use groundwater is an attribute of owning fee simple title to land overlying the source of the groundwater and is inseparable from the land to which the right applies.”

That provision would not apply to exceptions the Legislature has created regarding municipal and industrial groundwater transfers, among others. It also would not change the regulatory authority granted to the state Department of Natural Resources under the Nebraska Ground Water Management and Protection Act.

Hughes said that LB 802 would codify Nebraska common law, which, with those few exceptions, links the reasonable, beneficial use of groundwater to ownership of the overlying land. He said he introduced the bill on behalf of the Nebraska Cattlemen and the Nebraska Farm Bureau.

Don Blankenau, a private attorney in Lincoln representing the Nebraska Association of Resource Districts, testified that codifying the common law would preserve natural resources districts’ existing rules and regulations and allow lawyers to reference a single statute rather than several court decisions.

Jeff Fassett, director of the state Department of Natural Resources, testified that any changes to state law regarding transfers of groundwater could jeopardize two streamflow augmentation projects that help Nebraska comply with a multistate compact governing water use in the Republican River basin.

Nebraska courts already have settled the issue of separating groundwater use from land ownership, Fassett said, and a clarification of the common law in statute could result in new lawsuits.

– Unicameral Information Office

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