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Show METHODS OF APPROPRIATING WATER OF WATERCOURSES 409 applications and permits and water supply statistics, will be expected to furnish a rational basis for reaching conclusions as to the availability of unappropriated water in a particular stream system. Some States have statutory provisions regarding the filing of claims regarding preexisting rights.897 (5) In approving applications and issuing and processing permits to appropriate water, the State assumes no responsibility for the availability of unappropriated water, nor for noninterference with existing water rights. The State directs the administrative agency to inquire into these factors and, on the basis of all accessible information, to reach reasonable conclusions respecting them before issuing or refusing to issue permits. But once a permit is accepted, it is the holder's responsibility to exercise it in a lawful manner-not to use it as a means of depreciating preexisting water rights values. Assuming it to be incumbent upon the water administrator to call the applicant's attention to official conclusions as to water supply and prior commitments, then if the latter desires to proceed despite apparent hazards, it is his duty to stay within the law. And, as the California agency in its rules and regulations, above noted, makes very clear, it is the permittee's own obligation-not that of the State-to protect his permit right against encroachment. The question of detriment to the public welfare.-{\) Some general observations. The terms "public interest" and "public welfare" as used in this phase of water law have the same connotations. In this discussion they are used interchangeably. Nearly all the 16 appropriation-permit statutes contain specific provisions relating to the handling of prospective appropriations that threaten to prove detrimental to the public interest or public welfare. All of these statutes include restrictions against prescribed conditions unquestionably inimical to the commonweal. "Public policy," said a learned California jurist in 1907, "is at best a vague and uncertain guide."898 This criticism was directed at a concept that public policy might justify so reducing a riparian owner's right to the use of water as to limit him to reasonableness and economy as against an appropriator. This action, in the view that the California Supreme Court then took of the scope of the riparian right, would amount to the taking of private property without compensation. (No longer is this the California judicial policy. Pursuant to a constitutional mandate, the supreme court has since progressed. See chapter 10). 897See Wash. Rev. Code §§90.14.010 to .121 (Supp. 1970); Alaska Stat. §46.15.135 (Supp. 1966); Tex. Rev. Civ. Stat. Ann. art. 7542a, §4 (Supp. 1970). These are mentioned in chapter 6 under "Interrelationships of the Dual Water Rights Systems-The Status in Summary: By States." 898 Justice M. C. Sloss in Miller & Lux v. Madera Canal & Irr. Co., 155 Cal. 59, 65, 99 Pac. 502 (1907). |