| OCR Text |
Show 404 APPROPRIATION OF WATER elsewhere in the statute.879 Or if not, it is certainly by necessary implication an administrative requirement. In view of the widespread importance of and attention to this factor in western water administration, any supposed legislative intent that, in passing on an application for a permit, the administrator be excused from investigating and weighing the question of available water is not credible.880 (2) Difficulties in determining the question. Occasionally, in practice, there have been what amount to contentions that the question of unavailability of unappropriated water in the proposed source may be adequately answered by the application of simple arithmetic to available office records. Despite this, the problem is administrative not clerical; and it involves consideration of many factors. Any question as to this that arises in the course of processing an application for a permit to appropriate water must be answered. In the last analysis, such an answer becomes a careful administrative estimate, subject to review in a judicial proceeding. Some situations that have reached the courts may be noted: (a) New Mexico. The State Engineer of New Mexico, according to the statute, "shall determine from the evidence presented by the parties interested, from such surveys of the water supply as may be available, and from the records, whether there is unappropriated water available for the benefit of the applicant" and, if so, he shall approve.the application.881 In 1914, the New Mexico Supreme Court held that: "Where an application for a permit to appropriate water for a beneficial use is approved by the district court, on appeal the appellate court will presume, in the absence of anything in the record to the contrary, that there is unappropriated water available to supply the requirements under the permit."882 879 For example, in determining whether the proposed use will prejudicially affect the public interest, the administrative agency must take into consideration, among other things, the condition of the proposed water supply: Kans. Stat. Ann. § 82a-711 (1969); Oreg. Rev. Stat. § 537.170 (Supp. 1969). California legislation enacted in 1969 provides that in determining the amount of water available for appropriation, the State Water Resources Control Board shall take into account, whenever it is in the public interest, the amounts of water needed for protection of beneficial uses including any uses specified to be protected in any relevant water quality control plan established pursuant to applicable legislation. Cal. Laws 1969, ch. 482, § 10, Water Code § 1243.5 (West Supp. 1970). 880 In Cantin v. Carter, 88 Idaho 179, 397 Pac. (2d) 761, 765-766 (1964), the court said: "A subsequent appropriator attempting to justify his diversion has the burden of proving that it will not injure prior appropriations .... "It is a fundamental concept that under our constitution, water which has already been appropriated is not subject to appropriation by another, unless it has been abandoned .... Idaho Const. Art. 15, § §3, 4, 5. Before any permit to appropriate water to a beneficial use can ripen into a right to use the water, it is basic that the permit holder must show a supply of unappropriated water. Idaho Const. Art. 15, § 3." 881N. Mex. Stat. Ann. §75-5-5 (1968). 882Rio Puerco Irr. Co. v. Jastro, 19 N. Mex. 149, 155, 141 Pac. 874 (1914). |
