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Show 416 APPROPRIATION OF WATER merit if substantially revised, it need not be rejected altogether. Instead, if a qualified and limited right of appropriation appears justified, the State agency may approve a proposal modified to an extent consonant with conditions that actually exist.926 The statutory duty of water which prevails in some States is discussed in chapter 8, under "Elements of the Appropriative Right-Measure of the Appropriative Right-Duty of Water." In these jurisdictions an applicant may apply for the maximum allowed by law. However, if in his particular situation such quantity is patently more than he can apply to beneficial use, the administrator would not be justified in authorizing such quantity and it is doubtful if he would do so. Several statutes specifically authorize the State agency to approve an application for a lesser quantity of water than is applied for if there exist substantial reasons therefor.927 The California Water Code provides that "The issuance of a permit gives the right to take and use water only to the extent and for the purpose allowed in the permit."928 In view of this, a district court of appeal held that an application to appropriate water may be granted in part and denied in part.929 Even without such specific authorization, the statutory power to grant or to completely deny an application, according to the conditions that exist respecting it, would include by necessary implication the power to approve less water than asked for. A contrary construction of the legislation would be unreasonable. The cumulative effect of the administrative discretionary powers in issuing and refusing permits, granted by western legislatures and authorized by the courts, and of the prevailing policies of limiting water uses to beneficial requirements and forbidding unnecessary waste of water, negatives any likelihood that any western administrative statute would be so construed as to require the State to grant to an applicant a permit for a quantity of water substantially in excess of his needs, simply because he applies for it. The same comments apply to the imposition of other qualifications and limitations in the issuance of permits. For example, certain statutes provide specifically for the approval of applications under terms and on conditions necessary to protect the public interest.930 Others authorize the administrator 926Kirk v. State Board of In., 90 Nebr. 627, 631-632, 134 N.W. 167 (1912); East Bay Municipal Utility Dist. v. State Department of Public Works, 1 Cal. (2d) 476, 481, 35 Pac. (2d) 1027 (1934). 927 Ariz. Rev. Stat. Ann. §45-143 (1956); Idaho Code Ann. §42-203 (Supp. 1969); Nebr. Rev. Stat. §46-235 (1968); Nev. Rev. Stat. §533.380 (Supp. 1967); N. Mex. Stat. Ann. §75-5-5 (1968); Oreg. Rev. Stat. §537.190(1) (Supp. 1969); S. Dak. Comp. Laws Ann. §46-5-21 (1967); Wash. Rev. Code §90.03.290 (Supp. 1961). 928 Cal. Water Code §1381 (West 1956). 919Rich v. McClure, 78 Cal. App. 209, 213, 248 Pac. 275 (1926). 930Cal. Water Code §1253 (West Supp. 1970); Oreg. Rev. Stat. §537.190(1) (Supp. 1969). |