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Show NORTH CAROLINA 573 was using water prior to the date of the declaration of a capacity use area and the Board finds that such use was "reasonably neces- sary," a permit must be granted to meet those reasonable needs, provided, that the permit does not have unreasonably adverse ef- fects upon other water uses-present or potential, private or public- in the area. Second, in granting a permit, the Board shall also consider the prior investments of any person in land, or plans made for utilizing water in connection with such land, if the plans were submitted to the Board within a reasonable time after the effective date of the act (June 27, 1967). A similar proviso relating to ad- verse effects on other water uses is added. The draftsman has indi- cated that there may be a possibility that these sections grant an exclusive or separate emolument or privilege, contrary to a provision in the State Constitution.36 The section contains a severability clause as to these two provisions. Two other provisions of the act affect the scope of the water permit.37 Permittees in capacity use areas are required to file reports on quantities of water used, the source of the water, and the nature of the use at intervals of not oftener than 30 days. Other uses in such areas may also be required to comply with such procedures as may be necessary to protect the water or its management in these areas. A second provision allows the Board to require a permittee to install a water meter (or other acceptable device) if he is unable to make satisfactory reports as to the amount of water he is using or if the Board feels his reports are false or inaccurate. It should be noticed that the act contains no provision for priority among competing applicants. Nor is there any indication that there are preferences for particular uses over others in times of scarcity of water. A permittee seems to have no security in his use of the water as against later applicants, and his permit is a relatively un- substantial right. C. RIPAKIAN" EIGHTS The 1967 Water Use Act preserves riparian rights in existence at the date of the act.38 Whether this is restricted to actual riparian uses at that time is not known. The North Carolina court earlier held that a riparian owner has standing to sue even though he is making no actual use of the water39 The leading case on riparian rights is Smith v. Town of Morgan- ton^0 which combined in a curious way both the "natural flow" and "reasonable use" theories: This doctrine finds support in our decisions which hold a riparian pro- prietor is entitled to the natural flow of a stream running through or along his land in its accustomed channel, undiminished in quantity and unimpaired in quality, except as he may be occasioned by the reasonable use of the water by other like proprietors. Later decisions, however, seem pretty much committed to the view that riparians have the right to use water in a natural watercourse 88 N.C. Const., art. 1, sec. 7. 87 Sees. 143-215.16(c) and (d). 88 Sec. 143-215.22. 88 Smith v. Town of Morganton, 187 N.C. 801, 123 S.E. 88 (1924). He must, however, actually own riparian land. Young v. City of Aaheville, 241 N.C. 618, 86 S.E. 2d 408 (1955). "Supra note 39, 123 S.E. at 89. |
