| OCR Text |
Show 704 TEXAS proposed water uses. A cross reference is made to section 5.024, which lists the order of preferred uses as follows: domestic and municipal; industrial; irrigation; mining; hydroelectric power; navigation; recreation; and "other beneficial uses." Perhaps more important is the general statement at the end of section 5.122 to the effect that preference shall be given to applications which "will effectuate the maximum utilization of water and are calculated to prevent the escape of water without contribution to a beneficial public service." Presumably this refers to what might be categorized as "wasteful uses." Additional criteria are contained in section 5.133, to the effect that the commission shall grant the application only in the following circumstances: (1) If unappropriated water is available; (2) if the water will be put to a beneficial use; (3) if the use will not impair existing water rights or vested riparian rights; and (4) if the use is not detrimental to the public welfare. Under the Texas statutes, it is obvious that the commission has wide discretion in preferring one applicant over another. The leading case is City of San Antonio v. Texas Water Common,20 where there were competing applications for municipal purposes and the court upheld a decision of the agency which gave preference to the appli- cant who did not contemplate an interbasin transfer. The decisions of the Commission are, of course, subject to judicial review. The Texas court has adopted what it calls the "substantial evidence rule" on the scope of judicial review,21 but it really amounts to a trial de novo in the district court, as the San Antonio case dem- onstrates. b. ADJUDICATION OF WATER RIGHTS Alhtough Texas had a procedure for a general determination of water rights under the 1913 act, it was soon declared unconstitutional by the Supreme Court.22 Thereafter, Texas had nothing comparable to the general adjudication proceedings recognized in most of the Western States23 until 1967, when the Water Rights Adjudication Act was adopted.24 One aspect of the statute-the recording require- ment for ancient water claims-will be discussed in section 3.1, infra. The other part of the statute authorizes a proceeding to adjudicate all water rights in a particular stream or segment thereof. The adjudication action may be instituted on the commission's own motion, on the petition of 10 or more claimants from the source of supply, or on the petition of the Texas Water Development Board. After an administrative investigation is made, notice of the pro- posed adjudication must be given to all water users; the claimants are required to file sworn statements; and a hearing is held by the commission. After a preliminary determination of the various claims, contests may< be filed. A final determination is eventually made and filed in the district court of the county in which the stream is located. f 407 S.W. 2d 752 (Sup. Ct. Tex. 1966). o See Reavley, Substantial Evidence and Insubstantial Revieiv in Texas, 23 Sw. L.J. 22 Note 14. /,L^ce generally, C. Johnson, Adjudication of Water Rights, 42 Tex. L. Rev. 121 (1963) ; note, 1966 Utah L. Rev. 152-180. 24 Sees. 5.301 to 5.341. |
