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Show 73- 10- 19, Utah Code Annotated, 1953). Acting in accordance with this authorization, the Board has obtained a number of approved applications, notably on the Fremont, White and Escalante Rivers. Other applications of the Board are pending action by the State Engineer. At the present time there is an active interest, and, to some degree, a competition among prospective water users to acquire water- use rights under these approved applications. The most significant aspect is that the Board of Water Resources is not obligated by law to assign these applications, or rights of water use under them, to water users free of water- use charges. In contrast, the State Engineer is obligated by statute to process and act on applications to appropriate water, but he may charge no fees other than the prescribed filing fee. Thus, the Board of Water Resources has no such statutory limitations on fees to be charged, and appears to stand in a position similar to that of the Bureau of Reclamation or a conservancy district that has acquired an approved application under state law. The interesting feature, of course, is that if the Board of Water Resources were to decide, as a matter of administrative policy, to develop water under its approved applications and to deliver such water under a system of water- use fees, then the State would in fact be imposing fees for the use of water. This would be a different institutional arrangement from a hypothetical case in which the State Engineer would be authorized to impose fees on all unappropriated water, because the Board of Water Resources has made the initial step in the appropriation process by acquiring approved applications. This merely suggests that, among the potential alternatives for imposition of water- use fees, are ( 1) selective imposition by authorizing a state agency to obtain from the State Engineer approved applications in areas where the public interest is most pronounced, or ( 2) authorizing or requiring the State Engineer to impose a statutory schedule of fees on all new water applications ( and thus eliminating the traditional appropriation system of acquiring water rights). IV. Summary: Constitutional Considerations The foregoing discussion has explained in summary manner some of the legal implications of imposing water- use fees directly by the State. A considerable number of minor or tangential problems could be itemized, but problems of such a nature can be resolved when a program of water- use fees is defined with specificity and proposed for implementation. Of present interest are those problems of a major and substantive nature that cast serious clouds on the basic legality of any program to charge water- use fees. And they are the problems that are listed below. As a preliminary matter, it must be observed that no appropriation State has present legislative authority to impose water- use fees. Therefore, legislation would have to be enacted before such a system could be implemented. Thus, there is little point in itemizing the numerous ways in which such a system would conflict with present statutory law. The salient question, then, has to do with the legal problems that relate to the constitutionality of any proposed legislation to authorize water- use fees by the State. The three most importnat constitutional problems are discussed below. A. Guaranteed Right of Appropriation Some appropriation States have constitutional provisions which declare, in substance, that the right to appropriate the waters of the State for beneficial use shall never be denied ( see, e. g., Idaho Const., art. XV, sec. 3; Colo. Const., art. XVI, sec. 6). Since the appropriation process traditionally has been one of diverting unappropriated water from watercourses for beneficial use, without payment of water- use fee, the question arises as to whether the imposition water- use fees is so fundamentally in opposition to the concept of appropriation so as to be unconstitutional. If so, then, of course, the state legislature would be without power to authorize water- use fees. Two observations are in order: ( 1) this constraint applies only to those States that have such constitutional limitations; and ( 2) the legal meaning and effect of such limitations, with respect to water- use fees, are open questions, and will remain so until definitively decided by the supreme courts of the States having such provisions. There is no federal question involved, and so the final answer for any particular State must come from the supreme court of that State. B. Public Nature of Water It is rather common for the constitutions of appropriation States to provide, in substance, that unappropriated water is the property of the public ( see e. g., New Mexico Const., art. XVI; Wyo. Const., art. VIII, sec. 1). The basic concept here is that the State does not " own" water in the sense that it owns land, buildings, or automobiles, but that it merely administers and regulates use of the water resource for the benefit of the public. A comparable example might be wild game, which is said to be owned by the public and is to be regulated and managed by the State for public use. Thus, the State does not " own" a deer in the forest, but it has the sole and exclusive authority to prescribe regulations for the management and hunting of deer. Of course, statutes require payment of a sort of " use fee" by the hunter who purchases the license. But these fees, in the main, are designed to cover the cost of managing, conserving, and administering the resource and the public use of it- much the same as the water application fees charged by the State Engineer are designed to cover his administrative costs in processing the application. However, non- resident hunting and fishing license fees are higher than those paid by residents; 86 |