OCR Text |
Show ARKANSAS 119 maintain adequately the dam or to comply with the provisions of the permit.8 The person constructing a dam under a permit has the exclusive right to the use of the water impounded. However, if water is un- lawfully impounded upon the lands of another, the owner of the land has the right to the use of the water and may also recover damages for the unlawful trespass.9 In times of shortage, the commission, after notice and hearing, may allocate the available water among the persons affected by the shortage in such a manner that each obtains a fair share. Reason- able preferences are to be given in the following order: (1) sus- taining life; (2) maintaining health; and (3) increasing wealth.10 The exemptions set forth in the act include: (1) persons owning or possessing land have the right to impound and to use diffused surface water, whether from rain or melting snow or from flood waters of a stream, so long as they do not obstruct the flow of water in a stream; (2) persons owning or occupying land have the right to impound and use water from a spring as long as there is no obstruction of the flow of water in a stream; (3) no permit is re- quired for any dam which was substantially completed prior to January 1, 1957, but the owner may apply for and obtain a permit with all the privileges incident thereto if the dam meets the require- ments of the act (and any dam for which a permit has not been issued must be registered with the commission); (4) no permit is required for a dam which consists of a levee operated by a drainage or levee district; and (5) no permit is required for a dam impound- ing less than 20 acre-feet of water or where the height of the dam is below the ordinary high watermark in the stream.11 Any person aggrieved by an order of the commission may seek judicial review thereof and the matter is heard as a trial de novo. Criminal penalties are provided when there is a violation of the act or an order of the commission.12 The act further provides that any person diverting water from any stream, lake, or pond, except lakes or ponds in the exclusive ownership of one person, shall register such diversion with the commission. No party shall be granted an allocation of water above that required for domestic use unless he has compiled with the pro- visions of this section. However, this provision will not operate to allow a nonriparian use to obtain priority over a riparian right.13 The commission is authorized to prepare a comprehensive pro- gram for the orderly development and management of the State's water and related land resources. In preparing this water plan, the commission shall be governed by the public interest and shall give due consideration to procedures which will provide an equitable ad- justment of individual water rights affected by the implementation of said plan. But nothing in the plan shall be construed as impairing any existing water right.14 8 Ark. Stat. sec. 21-1306. a Ark. Stat. sec. 21-1307. "Ark. Stat. sec. 21-1308. ¦a Ark. Stat. sec. 21-1310. ia Ark. Stat. sec. 21-1312, 1313. is Ark. Stat. sec. 21-131fi. i* Ark. Stat. sec. 21-1318. |