OCR Text |
Show 338 APPROPRIATION OF WATER subject to the same administrative control as is provided for adjudicated waters.557 The legislative intent is likewise expressed in all State statutes that vest the administrator with authority, or that direct him, to reject applications which in his judgment will impair existing water rights. (See "Restrictions and Preferences in Appropriation of Water-Restrictions on the Right to Appropri- ate Water," below.) The California statute lists as one of the prerequisites to the issuance of a permit that "There must be unappropriated water available to supply the applicant."558 Even if the intent is not stated in direct language, the whole purpose of the administrative statute with its system of priorities embraces this requirement. Validity of the statute would be compromised if this were not true. The conclusion of the administrator that the permit applied for will or will not impair existing water rights is not conclusive or binding on any party.559 It is made for the administrative use of the State agency in passing on the application pending before it. This decision is subject to review in the courts, in which the matter of impairment of existing rights may be judicially determined as between the conflicting claimants. The State Engineer is an administrative, not a judicial officer. In deciding whether an application to appropriate water should be approved or rejected, he exercises an executive function-to ascertain for his own guidance whether there is reason to believe from the evidence that there are unappropriated waters in the proposed source of supply which can be appropriated without impairing existing rights.560 This determination merits consideration by the judiciary, but it has no binding force on the final determination of the latter.561 But even if a permit should be issued, and the administrative act be not overturned by the reviewing court, the permit still would be junior to all preexisting rights of appropriation that attach to the same source of supply. An attempt to exercise it in contravention of these preexisting rights would be subject to injunction. We speak here of preexisting rights of appropriation. This refers to appropriative rights already in being, whether so declared by existing court decrees or by outstanding final permits and licenses or certificates not yet adjudicated. It refers also to rights about to be established in current proceedings involving issuance of the proposed new permit. The question of impairment of existing riparian rights is discussed later under "Restrictions and Preferences in Appropriation of Water-Restrictions on the Right to Appropriate Water-Nonimpairment of existing rights." It is a factor for consideration in only some Western States. S57Nev. Rev. Stat. § 533.430 (Supp. 1967). 558Cal. Water Code § 1375(d) (West Supp. 1970). SS9Motlv.Boyd, 116 Tex. 82, 126-127, 286 S. W. 458 (1926). S60Bullock v. Tracy, 4 Utah (2d) 370, 373, 294 Pac. (2d) 707 (1956). 561 American Fork In. Co. v.Linke, 121 Utah 90, 93-94, 239 Pac. (2d) 188 (1951). |