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Show 200 PROTECTION OF WATER RIGHTS IN WATERCOURSES In 1967, the Texas Legislature enacted a statute which restricts the exercise of riparian rights, except for domestic or livestock purposes, to the extent of maximum actual application of water to beneficial use made during any calendar year from 1963 to 1967, or until the end of 1970 if works were under construction before the effective date of the act.50 This legislation has not been construed by the Texas Supreme Court or the courts of civil appeals. In Washington, waters of nonnavigable streams in excess of the amount that can be beneficially used, either directly or prospectively, within a reasonable time, on or in connection with riparian lands, are subject to appropriation for use on nonriparian lands.51 Consequently, before the riparian owner now has any rights to protect, he must show with reasonable certainty that either at present or within a reasonable time, he will make use of the water for beneficial purposes.52 Under Washington legislation enacted in 1967, anyone entitled to divert or withdraw water by virtue of his ownership of land abutting a stream, lake, or watercourse, "who abandons the same, or who voluntarily fails, without sufficient cause," to beneficially use all or any part of such right for any period of 5 successive years after the effective date of the act (July 1, 1967), shall relinquish such right or portion thereof, which shall revert to the State and the affected waters become available for appropriation.53 Some of the State appropriation statutes specifically disclaim any intent to impair existing vested rights to the use of water. For example, the Oregon statute of 1909, often referred to as the "water code," provides in its present form that "nothing contained in the Water Rights Act shall be so construed as to take away or impair the vested right of any person to any water or to the use of any water."54 Legislative protection of vested riparian rights was contained in the water codes or appropriation statutes of several States passed for the purpose of deflating the obstructive features of riparian rights-particularly unused rights-and placing rights to the use of streamflow on a basis of reasonable beneficial use. The Oregon water code of 1909 pioneered in this effort by providing that actual application of water to beneficial use prior to the passage 50 Tex. Rev. Civ. Stat. Ann. art. 7542a, § 4 (Supp. 1970). 51 Brown v. Chase, 125 Wash. 542, 553, 217 Pac. 23 (1923). With respect to riparian use of water from navigable waters see the quotation from State ex rel. Ham, Yearsley & Ryrie v. Superior Court, 70 Wash. 442, 453, 126 Pac. 945 (1912), in chapter 10, note 411. "State v.American Fruit Growers, Inc., 135 Wash. 156,161, 237 Pac. 498 (1925). "Wash. Rev. Code § 90.14.170 (Supp. 1970). This 1967 legislation, revised in 1969, also requires that anyone using or claiming water rights other than under a permit or certificate from the Department of Ecology shall file a claim, stating the amount used and time, place, and purpose of use, with the department by June 30, 1974. Failure to do so shall be conclusively deemed a waiver and relinquishment of the right. Id. § § 90.14.010 - 90.14.121. This legislation has not yet been construed by the Washington Supreme Court. 54Oreg. Rev. Stat. § 537.120 (Supp. 1969). |