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Show 406 APPROPRIATION OF WATER must determine, preliminarily and tentatively, certain questions of public interest including availability of unappropriated water. But he is an administra- tor, not a judicial officer. Hence, his decisions in granting permits-and the refusal of the superior court to set his decisions aside-do not constitute adjudications of existing private water rights.886 (e) Utah. On the whole, in its consideration of the statutory powers of the Utah State Engineer in a number of decisions, the supreme court of that State has taken a liberal view of the legislative intent that the public waters of the State be made available for beneficial use-that in view of the State policy in this respect, "new appropriations should be favored and not hindered."887 The Utah statute requires rejection of applications under specified condi- tions in the interest of the public welfare. This is the case even though all waters of the stream have not been appropriated.888 But when the question of unappropriated water is in doubt, the State Engineer should have power to approve the application and afford an orderly recourse to the courts.889 He determines whether under the evidence there is reason to believe that there are unappropriated waters in the proposed source available for appropriation under the statutory restrictions.890 The State Engineer's decision, in short, is that there is probable cause to believe that the applicant either may or may not be able to establish rights under his application without impairing the rights of others.891 (f) The West as a whole. The requirement that a permit shall not be granted if there is no unappropriated water in the proposed source of supply involves difficult questions of administrative policy. It is often stated that the usual flow of many western streams is overappropriated. On occasions, when an application to appropriate water of a given stream is filed, the State administrator's records may disclose no reasonably anticipated supply above the requirements of existing claimants. However, unless complete water supply studies have been made on that stream system, there may be a question as to whether the absence of unappropriated flood flows and return water supplies is so clearly established as to justify denial of the application. The permit, if granted, attaches to only whatever S86Funk v. Bartholet, 157 Wash. 584, 593-595, 289 Pac. 1018 (1930); Madison v. McNeal, 171 Wash. 669, 680, 19 Pac. (2d) 97 (1933);MzcA; v.Eldorado Water Dist., 56 Wash. (2d) 584, 587, 354 Pac. (2d) 917 (1960). W1 Little Cottonwood Water Co. v. Kimball, 76 Utah 243, 248-249, 289 Pac. 116 (1930). See Whitmore v. Welch, 114 Utah 578, 586-587, 201 Pac. (2d) 954 (1949); Brady v. McGonagle, 57 Utah 424, 432-433,195 Pac. 188 (1921). 888 Tanner v. Bacon, 103 Utah 494, 504, 136 Pac. (2d) 957 (1943). 889Rocky Ford In. Co. v. Kents Lake Res. Co., 104 Utah 202, 212, 135 Pac. (2d) 108 (1943). See Lehi Irr. Co. v. Jones, 115 Utah 136, 142-146, 202 Pac. (2d) 892 (1949). 890Bullock v. Tracy, 4 Utah (2d) 370, 373, 294 Pac. (2d) 707 (1956). 891 United States v. District Court, 121 Utah 1, 11-12, 238 Pac. (2d) 1132 (1951); Eardley v. Terry, 94 Utah 367, 376, 77 Pac. (2d) 362 (1938). |