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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 401 in the literal wording of the law or in practice. This is because the primary use of water within a municipality serves the life, health, welfare, and safety of human beings in the aggregate-a composite domestic purpose. Next on the list in most States is agriculture, particularly irrigation. Industrial uses of various kinds-manufacturing, waterpower, mining-usually follow. Purposes such as recreation, wildlife protection, and navigation, if they are mentioned, usually come afterward. The policy of curbing the indiscriminate acquisition and exercise of rights to the use of water is an important phase of State administrative control over this vital natural resource. Available water supplies, despite their periodical replenishment from the inexhaustible ocean, are not unlimited. Great as is their potential in the West, demands upon them tend to increase with development of communities, farm lands, and industries. The purpose of restrictions on the right to make appropriations of available water supplies, and the purpose of preferences relating to uses of water in the order of their value to the public welfare, are to secure the greatest possible benefit to the public from administrative control and regulation of the State's water resources. Problems in the fields of restrictions and preferences in water appropriation are considered separately below. Restrictions on the Right to Appropriate Water Constitutional prohibitions against denial of the right to appropriate water. -Wiel, writing in 1911, stated that "most States put the 'free development' theory into their constitutions or statutes by providing, 'The right to appropriate unappropriated water shall never be denied,' or words to the same effect."870 To say "most States" is incorrect. In only two constitutions (Colorado and Idaho) and one statute (Nebraska) did this flat, unqualified declaration appear in 1911.871 After the publication of Mr. Wiel's text, one of these two constitutions (Idaho) was so amended as to add an exception; and the one statute of Nebraska, although not amended, was overshadowed by a subse- quent qualified constitutional declaration. Constitutional provisions on this subject follow: (1) Colorado. "The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied."872 870 Wiel, S.C., "Water Rights in the Western States," 3d ed., vol. 1, § 108 (1911). 871 It is true that this declaration appeared in the New Mexico law of 1905, but it was deleted 2 years later. New Mexico Laws 1905, ch. 102: "Section 1. All natural waters within the limits of New Mexico are hereby declared to belong to the public, and no person shall be denied the right to appropriate said waters for beneficial use." Laws 1907, ch. 49: "Section 1. All natural waters flowing in streams and water courses, whether such be perennial, or torrential, within the limits of the Territory of New Mexico, belong to the public and are subject to appropriation for beneficial use." 872Colo. Const., art. XVI, § 6. 450-486 O - 72 - 28 |