Tributary ground water, the ground water that reaches a stream, is a major source of streamflow. The United States Geological Survey estimates that ground water is the source of nearly forty percent of all streamflow in the United States. This figure is higher in Nebraska. Ground water was the source of fifty-five percent of total streamflow in Nebraska in 1975 (fifty-one percent on average). This important, but largely unrecognized, fact has not been taken into account by Nebraska water policy makers. Despite the incontrovertible fact that ground water provides the baseflow for most Nebraska streams and is the most stable (and often the largest) contribution to streamflows, Nebraska surface water law ignores the baseflow phenomenon. Instead, surface water and ground water are allocated on almost opposite bases: "prior appropriation" (first in time is first in right) for surface water; and "correlative rights" (proportional sharing) for ground water. The inevitable collision between inconsistent water allocation theories finally occurred in Spear T Ranch v. Knaub, in which the Nebraska Supreme Court adopted section 858 of the Restatement (Second) of Torts as the basis for resolving conflicts between competing users of hydrologically connected ("HC") surface water and ground water. In doing so, Nebraska became the first state to apply the Restatement rule to conflicts involving HC surface and ground water. This Article will describe the tributary ground water issue, discuss the Spear T Ranch decision, and analyze the likely role of the Restatement rule in future Nebraska HC surface and ground water disputes.
Hydrologically Connected Ground Water, Section 858, and the Spear T Ranch Decision,
84 Neb. L. Rev.
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