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Show 542 THE APPROPRIATIVE RIGHT By this Texas statutory classification of development of electric power by means other than hydroelectric as an industrial use, it is placed in the second class of preferred uses, whereas hydroelectric power is relegated to fifth place. It is true that in the same enactment the Texas Water Rights Commission is directed to observe the rule that as between applicants for permits, "preference be given not only in the order of preferential uses declared," but that preference also be given those applications the purposes of which contemplate and will effectuate the maximum utilization of water and are designed to prevent waste of water.522 Construing these sections together, it is clear that the Texas legislature did not intend the declaration of preferences to be either the sole guide to the administrator or to be meaningless. Its intent was to vest the State agency with a broad discretion in choosing between conflicting applications to appropriate water, with full consideration of all the guidelines specified in the statute. As a result, the deliberate distinction made by the legislature in power classifications must be considered by the administrator in deciding between pending conflicting applications; hence it is of practical importance. Recreation.-(I) The California Water Code provides that the use of water for recreation and for the preservation and enhancement of fish and wildlife resources is a beneficial use of water. The quantities of water required therefor must be taken into account by the Water Resources Control Board, in determin- ing quantities of water available for appropriation for other beneficial purposes, whenever it is in the public interest to do so.524 Within certain limitations, the California Department of Water Resources is authorized to plan recreation development associated with State-constructed water projects, in consultation with affected local, State, and Federal agencies. With the approval of the Department of General Services, real property necessary therefor may be acquired.S2S California's definition of recreational use for administrative purposes respecting appropriation of water "includes those uses, except the irrigation of golf courses, which are common to a resort or other recreational establishment such as boating, swimming, fishing, etc.." Not included is use of water at a campground or resort for human consumption, cooking, or sanitary purposes, this being considered a domestic use.526 "2Tex. Rev. Civ. Stat. Ann. art. 7472c (1954). S23In City of San Antonio v. Texas Water Comm'n, 407 S. W. (2d) 752, 764 (Tex. Sup. Ct. 1966), the city had argued that "if Article 7472c gives the Commission discretion to ignore the priorities established in Article 7471, then Article 7472c is unconstitu- tional because such purpose is not contained in the caption of the Act." But the court refused to decide this question because "The question of violating the order of priority of uses is not presented in this case." "4Cal. Water Code § 1243 (West 1956). 525Id. § § 345 and 346. 526Cal. Admin. Code, tit. 23, § 667 (1969). |
