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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 323 adjudicate any rights except those on which the State Engineer's decision is final unless it is set aside.498 The Utah Supreme Court recently declared it to be well-settled that in these judicial review proceedings, the trial de novo specified in the statute comprehends a trial of all pertinent issues to determine whether the applicant has made his burden of showing that the necessary conditions exist to warrant approval of his application.499 Procedural steps in appropriating water.- (1) In general. The procedure for acquiring an appropriative right in the 16 States that have water administrative systems for control of such function conform to a generally similar pattern. In some phases of the process, as would be expected, there are important differences from State to State. The typical procedure originated in the water administration act passed by the first State Legislature of Wyoming. Except for a few States in which there are certain preapplication provisions (see "(2) Exceptional preapplication provisions," below), the first step in the appropriative process in all 16 appropriation-permit States is the making of a written application for permission to appropriate water. The application is filed in the office of the State Engineer or other comparable official or agency. The statutes provide for giving notice of the application, and for hearing and acting upon protests from persons concerned with the possible effect of the proposed provision on their own water enterprises, or who may advance other objections. The administrator is directed by the legislature to consider the implications of the proposal, if consummated, on the public welfare and on the rights of interested parties. The Oregon State Engineer is authorized to hold a hearing to determine whether the proposed use may prejudicially affect the public interest.500 If in his judgment this will be the result, he must refer the application to the State Water Resources Board for consideration before acting upon it pursuant to the board's order.501 In Arizona, approval of an application to appropriate water for generation of electrical energy in excess of 25,000 horsepower, or to build a dam therefor, requires an act of the legislature.502 As a result of investigations required by the statute, the administrator reaches a determination either that the application be refused, or that it be approved with or without modification of the proposed plan. If the proposal 498 United States v. District Court, 121 Utah 18, 24, 242 Pac. (2d) 774 (1952). See further, Bullock v. Tracy, 4 Utah (2d) 370, 373, 294 Pac. (2d) 707 (1956); East Bench In. Co. v. Utah, 5 Utah (2d) 235, 238-240, 300 Pac. (2d) 603 (1956). 499Shields v. Dry Creek In. Co., 12 Utah (2d) 98, 101-102, 363 Pac. (2d) 82 (1961). In another recent case, it is said that the trial court's approval of certain applications to appropriate water should be affirmed if the supreme court finds probable cause to believe that unappropriated waters are available and that the application can be made without interfering with prior rights to the use of the water by others: Reimann v. Richards, 12 Utah (2d) 109, 111, 363 Pac. (2d) 499 (1961). S00Oreg. Rev. Stat. § 537.180 (Supp. 1969). 501 Id. § 537.170(1). 502 Ariz. Rev. Stat. Ann. § 45-146 (1956). |