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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 521 immense benefits to the receiving region or the State as a whole upon a mere showing of a slight harm to present or future interests." It noted that another statute (the Wagstaff Act) charges the Commission, in passing on all applications for appropriative rights, to give preference to those which will maximize utilization of waters and prevent their escape without contribution to a beneficial public service.408 The court said "it is apparent that the Legislature intended to prohibit diversion out of the basin of origin only to the extent such diversion would impair water rights in existence at the time of the proposed diversion" and "we have also concluded that as to any water in the originating basin found to be in excess of that amount required to protect existing rights, the Legislature intended that the Commission should, in a balancing process, take into consideration future benefits and detriments expected to result from a proposed transbasin diversion and that there would be 'prejudice' only if the benefits from the diversion were outweighed by detriments to the originating basin. See Johnson and Knippa, Transbasin Diversion of Water, 43 Tex. L. R. 1035, 1044 (1965)."409 In another case, a specific statutory prohibition against withdrawal of water from a particular watershed410 was held unconstitutional.411 408 Tex. Rev. Civ. Stat. Ann. art. 7472c (1954). 409City of San Antonio v. Texas Water Comm'n, 407 S. W. (2d) 752, 758-759 (Tex. Sup. Ct. 1966). The court further held that Tex. Rev. Civ. Stat. Ann. art. 7589 (1954) was not modified or repealed by provisions of the Wagstaff Act (arts. 7471-7472d) giving priority to municipal use. Id. at 762-763. The court also concluded that a restriction on transbasin diversions of surface water included in the Water Resources Administration & Development Act of 1965 "is directed solely at the 'State Water Plan' to be formulated by the Texas Water Development Board and not the Water Rights Commission. This is reinforced by the further provision that after the Plan is adopted it shall be a 'flexible guide' by which the Commission need not be bound but rather shall take 'into consideration in matters coming before the Commission.' " Id. at 757, citing Acts 1965, ch. 297, Tex. Rev. Civ. Stat. Ann. art. 8280-9, § 3(b) (Supp. 1970) which, among other things, provides that "the Board shall not prepare or formulate any plan which contemplates or results in the removal from the basin of origin of any surface water to some other river basin or area outside of such basin of origin if the water supply involved in such plan or project will be required to supply the reasonably foreseeable future water supply requirements for the next ensuing fifty-year period within the river basin of origin, except on a temporary, interim basis." Concerning the amount of water available for appropriation, the court said "There is evidence in the record that water retained within the watershed is susceptible to multiple use because all water uses are not consumptive uses. It is apparent that water unappropriated and available for use within the originating watershed is not necessarily the equivalent of water unappropriated within the originating watershed but to be used outside the watershed." Id. at 762. 410Tex. Rev. Civ. Stat. Ann. art. 1434a, § 1-a (1962). 411 Board of Water Engineers v. San Antonio, 273 S. W. (2d) 913, 914-915 (Tex. Civ. App. 1954), affirmed, 155 Tex. Ill, 283 S. W. (2d) 722 (1955). |
