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Show 230 APPROPRIATION OF WATER Ground Waters Historically, as noted in chapter 2, distinctions were made between water of a definite underground stream and percolating water. A definite underground stream is a watercourse, moving in a definite subterranean channel. Percolating water moves through the ground but without constituting part of a definite underground stream. Based upon legal recognition of such a physical distinction, different principles were applied to waters of the two classes in determining rights of use (see chapter 19). This influenced the wording of declarations of western legislatures that applied the appropriative principle to various or all kinds of ground waters. All ground waters.- That the water appropriation statutes of certain Western States purport to subject all waters of the State to appropriation, subject necessarily to vested rights, is noted above under "All Waters." However, in some of these States there are provisions of the general appropriation statute, or separate statutes entirely, which in express terms relate to ground water. In the immediately following paragraphs, the ground water situation is treated independently of declarations in the general appropriation statutes. In a number of Western States, all ground waters, without restriction, are expressly subjected to appropriation. Thus, in Kansas the designation is simply ground water and in Nevada, all underground water or ground water.22 Idaho, South Dakota, Oklahoma, and North Dakota agree in designating all water under the surface of the ground. The first three, however, reinforce their declarations by making them applicable whatever may be the geology of the water-bearing formation. North Dakota does so by adding that all such water is included whether flowing in defined subterranean channels or percolating in the ground.23 Wyoming's designation is any water under the surface of the land or the bed of any stream, lake, reservoir, or other body of surface water.24 Utah's all-inclusive declaration is all waters, whether above or under the ground.25 The Alaska Water Use Act of 1966 provides that " 'water' means all water of the state, surface and subsurfaces, occurring in a natural state, except mineral and medicinal water" and "wherever occurring in a natural state, the waters are reserved to the people for common use and are subject to appropriation and beneficial use as provided in this chapter."26 The Oregon ground water act stops short of purporting to make all ground water appropriable. It does make the statute applicable to all ground water to "Kans. Stat. Ann. § 82a-707 (1969); Nev. Rev. Stat. §§ 534.010 (Supp. 1969) and 534.020 (Supp. 1967). "Idaho Code Ann. § 42-230 (Supp. 1969); S. Dak. Comp. Laws Ann. § § 46-1-6(7) and 46-6-3 (1967); Okla. Stat. Ann. tit. 82, § 1002 (1970); N. Dak. Cent. Code Ann. § 61-01-01 (1960). 24Wyo. Stat. Ann. § § 41-121 (1957) and 41-138 (Supp. 1969). "Utah Code Ann. § § 73-1-1 and 73-3-1 (1968). "Alaska Stat. §§ 46.15.260 and 46.15.030 (Supp. 1966). |
