OCR Text |
Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 403 In practical operation, it is doubtful that the administrative agencies of these two States are more hampered by reason of this constitutional feature than are those of other Western States the constitutions of which are silent on this matter. But no unqualified right of appropriation under water permit statutes.-In the 16 Western States in which control over appropriation of water is imposed by statute, no person has an unqualified right to appropriate water.877 It is his privilege to apply to the State authorities for a permit to make the appropriation. But this will be granted to him only if certain conditions and prerequisites prevail. And as stated later in discussing preferences in acquiring the right, his application may be prior in time to applications of other parties who, however, may have a preferential status which entitles them to priorities senior to that of the first applicant. The statutory listings of these restrictions on the privilege of obtaining permits to appropriate water are grouped into several categories below. Generally, the legislative directions are mandatory. If a prescribed condition exists, such for example as unavailability of unappropriated water in the proposed source, the evident intent usually is that the application shall be denied. However, in some instances it is provided that the State agency "may" refuse to issue the permit, or may issue one with respect to less water or land than is applied for. Conformance to specific requirements of the statute.-The State administra- tive agency is not required to approve an application that is not in proper form. Such an application is returned for correction to the applicant, who has a prescribed period of time within which to refile it in the State office in order to hold the original priority of filing. Likewise the application must comply with all governing provisions of the law and with the rules and regulations of the State administrative agency. It must also be accompanied by the required filing fees.878 Whether or not specifically declared in the statute, this is common administrative practice. Availability of unappropriated water.- (1) A practically uniform require- ment. In order to obtain a permit to appropriate water in the 16 appropriation control States, a sine qua non is the availability of unappropriated water in the proposed source of supply. In most of these statutes, this condition is expressly stated in the directions to the administrative agency to approve permits. In the others, it appears otherwise deterimental to the public welfare, the Department of Water Resources shall approve the same, * * *."Id. § 46-235. 877In Tanner v. Bacon, 103 Utah 494, 504-505, 136 Pac. (2d) 957 (1943), the Utah Supreme Court rejected a contention of counsel that under the doctrine of priorities, every person who makes an application to appropriate unappropriated water of Utah has an unqualified right to have his application approved. 878See S. Dak. Comp. Laws Ann. §§ 46-5-18 and 46-5-20 (1967); Tex. Rev. Civ. Stat. Ann. art. 7507 (1954). |