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Show 410 APPROPRIATION OF WATER Regardless of the context in which the above observation was made, "public interest" and "public welfare" most assuredly are often illusive terms. One may assert, with reason, that the public welfare is not being served by the continued issuance of permits to appropriate water from a supply that, according to all the evidence, already is grossly over-appropriated. Nor is it advanced by the exercise of permit rights certain to cause injury to existing water rights in good standing. On the other hand, there are considerations of State water policy as to which public spirited citizens sincerely disagree. Disagreements inevitably occur whenever new water control questions arise. This has been the case throughout the history of water development in this country. However, in reaching a decision as to whether an appropriation should be rejected as potentially dangerous to the public welfare, legislative direction to the administrator to consider certain clearly specified matters tends to narrow the issues and to bring the perplexing problem more clearly into focus. In the West, then, there prevails the basic principle that an application to appropriate water, the consummation of which would threaten the public welfare, should be rejected by the administrator, subject to judicial review. This concept appears in the constitutions of both Wyoming and Nebraska in the mandate, above noted, that the right to appropriate water shall never be denied except when the public interest so demands. In one form or another, the principle is expressed in all the western administrative appropriation statutes. In the following paragraphs some particular State situations are noted. In a few instances, brief mention is made of court decisions respecting the nature of the powers of administrators that are pertinent to the present topic, but which are discussed more fully under "Current Appropriation Procedures: Adminis- trative," above. (2) California. The State Water Resources Control Board is directed by the statute to allow appropriations of water "under such terms and conditions as in its judgment will best develop, conserve, and utilize in the public interest the water sought to be appropriated." Otherwise the proposal must be rejected.899 The beneficial uses which the Board shall consider include, but are not limited to, "domestic, irrigation, municipal, industrial, preservation and enhancement of fish and wildlife,900 recreational, mining and power purposes, and any uses specified to be protected in any relevant water quality control plan," as well as 899Cal. Water Code § § 1253 and 1255-1257 (West Supp. 1970). 900 It also may be noted that, with respect to public fishing rights, in a 1966 Montana case the court said "under the proper circumstances we feel that such a public interest should be recognized." Paradise Rainbows v. Fish and Game Comm'n, 148 Mont. 412, 421 Pac. (2d) 717, 721 (1966). In so stating, the court referred to People v. Glenn - Colusa In. Dist., Ill Cal. App. 30, 15 Pac. (2d) 549 (1932). Regarding such public rights in navigable waters, see in chapter 4 "Water Rights in Navigable Waterways- Appropriative Rights-State Law." |
