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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 405 (b) Texas. In noting that under the statute the administrator's duty is to reject applications when there is no unappropriated water in the source of supply, the Texas Supreme Court stated that: "The facts as to that question can be determined by the board by the mere matter of adding up the amount of water previously appropriated and shown on their records, and subtracting it from the amount of state water which they had previously determined the stream furnished. That is clearly administrative."883 This comment makes an unsuccessful attempt to oversimplify a situation that in actual practice is well known by administrators to be far from simple. This is owing to complications of available streamflows, status of unappropri- ated rights of record, effects of return flow from diversion and use of water, riparian rights where recognized by the courts, and other factors. (c) California. Much the same contention was made in a California case to the effect that an independent judicial determination of the issue of availability of unappropriated water could be made simply by comparing the aggregate of existing rights with estimated supplies, with the result that the expense of numerous hearings on applications for permits before the State agency could be avoided.884 The supreme court, however, was not impressed. In this case, the court referred to one of its previous decisions885 in which the opinion stated that it was manifestly impracticable for the State agency to authoritatively determine that there is not water in a given stream subject to appropriation, that "What is unappropriated water is a constantly fluctuating question, depending upon the seasonal flow of the stream, the annual rainfall, the forteiture of prior appropriations, and default in the use of riparian rights." Following this quotation from an earlier decision, the supreme court went on to say that a future determination as to existing appropriative and riparian rights rests upon then present uses which may be quite different at a later time. Hence, a determination as to the future availability of water can be only an estimate. If, said the court, the administrator erroneously concludes that unappropriated water is available to supply an applicant, when there actually is no reasonable expectation of such a supply, the error may be corrected upon a review of the determination. "But a holding that such a danger is so imminent as to justify an independent judicial proceeding to determine the availability of unappropriated water before the department considers an application, would deprive the administrative proceeding of all of its proper functions in the issuance of a permit. No such danger will be presumed." (d) Washington. In the view of the Washington Supreme Court, the Director of Ecology is vested with a considerable degree of discretion in making investigations and findings and otherwise exercising his delegated functions. He **3Motl v. Boyd, 116 Tex. 82,126, 286 S.W. 458 (1926). ***Temescal Water Co. v. Department of Public Works, 44 Cal. (2d) 90,105-106, 280 Pac. (2d) 1 (1955). 885 Tulare Water Co. v. State Water Comm'n, 187 Cal. 533, 537, 202 Pac. 874 (1921). |
