| OCR Text |
Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 331 arise, and be determined, even should there be only one application under consideration, where a long range view of prospective water development fails to support the applicant's proposal. In the development of this principle, the California Supreme Court concluded in 1921 that the legislature did not intend to vest in the administrative agency more than a supervisory discretion in issuing permits to appropriate unappropriated water.525 But in 1955, the same court acknowledged that the cumulative effects of subsequent statutory changes were to vest in the State agency a broad discretion in determining whether the issuance of a permit will best serve the public interest.526 (4) Permit to appropriate water, (a) What it constitutes and evidences. A permit, whether in the form of an endorsement on an application or a separate document, evidences the State's approval of a proposal to appropriate water contained in the application. On this matter, the California Water Code declares as follows: As prerequisites to the issuance of a permit to appropriate water, (a) there must be an applicant; (b) the application must contain all matters prescribed by the statute and in the form required by the State Water Rights Board; (c) the intended use must be beneficial; (d) there must be available unappropriated water; and (e) all fees must be paid. On the approval of an application, the Board shall issue a permit. This gives the right to take and use water only to the extent and for the purpose allowed in the permit. All permits shall be issued under the terms and conditions prescribed in the statute.527 Another typical declaration is in the Oregon statute. This is to the effect that on receipt of an approved application, the applicant may proceed with construction of the necessary works and take all steps required to apply the water to beneficial use and to perfect the proposed appropriation. But if the application is refused, "the applicant shall take no steps toward construction of the proposed work or the diversion and use of water so long as the refusal continues in force."S28 Receipt of a permit, then, does not constitute an appropriation of water. It is (a) the State's notification to the applicant that his proposal has been found adequate in satisfying all pertinent legal requirements; and (b) its authorization to him to proceed with his plan to completion. What he holds is a contingent right which may ripen into a complete appropriation. Or on the contrary, it "Interrelationships of the Dual Water Rights Sytems-The Status in Summary: By States-North Dakota." S2STulare Water Co. v. State Water Commission, 187 Cal. 533, 536-537, 202 Pac. 874 (1921). 526 Temescal Water Co. v. Department of Public Works, 44 Cal. (2d) 90, 99-100, 280 Pac. (2d) 1 (1955). 527 Cal Water Code § § 1375,1380 (West Supp. 1970), 1381, and 1382 (West 1956). 528Oreg. Rev. Stat. § 537.210 (Supp. 1969). |
