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Show 408 APPROPRIATION OF WATER be provided for "existing water rights" and "vested riparian rights."893 The extent to which riparian rights have become vested and are protected against appropriative rights in such States are discussed in chapter 6 under "Interre- lationships of the Dual Water Rights Systems-The Status in Summary: By States." Even without a specific statutory command to the administrator to refuse approval of an application, the granting of which would appear to threaten the value of existing water rights in good standing, the legislative intent-as in case of lack of unappropriated water-is clearly implied by the whole context of the water control provisions. In this connection, the very few administrative statutes that do not specifically include possible infringement of existing water rights as ground for refusal of a permit do include detriment to the public interest. Among matters detrimental to the public welfare, as noted later, is impairment of the value of vested water rights. (2) The Kansas statute directs the Chief Engineer to reject an application if the proposed use will impair a use under an existing water right, or to require its modification to conform to the public interest. Further, with regard to whether a proposed use will have this effect, "impairment shall include the unreasonable raising or lowering of the static water level or the unreasonable increase or decrease of the streamflow or the unreasonable deterioration of the water quality at the water user's point of diversion beyond a reasonable economic limit."894 (3) The Nebraska statute contains an unusual provision that "if a prior appropriation has been perfected to water the same land to be watered by the applicant, the Department * * * may refuse such application * * *."895 (4) The discussion under "Availability of unappropriated water" regarding the nature of the administrator's findings as strictly administrative, and not a determination of existing water rights, applies equally here. In fact the Kansas reenactment of 1957, in directing the Chief Engineer to make a determination of the rights of all users of water (other than for domestic purposes) as of June 28, 1945, at which time the current administrative procedure went into effect, added this: "Provided, That no such determination shall be deemed an adjudication of the relation between any vested right holders with respect to the operation or exercise of their vested rights."896 The purpose of this authorization is to provide the Chief Engineer with data on uses of water under preexisting "vested rights." Such data, together with records of subsequent 893Tex. Rev. Civ. Stat. Ann. arts. 7506 and 7507 (1954). Other provisions respecting protection of private property rights include arts. 7469 and 7620. Noninterference with rights of riparian proprietors: Tex. Rev. Civ. Stat. Ann. arts. 7612 and 7612B (Supp. 1970). 894Kans. Stat. Ann. §82a-711 (1969). 895Nebr. Rev. Stat. §46-234 (1968). 896Kans. Stat. Ann. §82a-704 (1969). |
