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Show ORGANIZATION 19 such as these by adopting various types of permit systems to control water use. In most such cases the legislation enacted preserves and protects preexisting riparian rights that are actually being used, but requires that future riparian uses be initiated only after acquiring a permit from a State regulatory agency; and allows nonriparian uses through the issuance of permits. A number of statutory conditions often are imposed before permits may be issued, such as protection of existing uses (whether permit uses or preexisting riparian uses), and preservation of minimum stream flows to sustain water quality and protect fishery resources and other instream values. Such minimum stream flows afford a degree of protection to "unused" riparian values since the riparian owners may enjoy the natural amenities of the watercourse for its fishing, swimming, recreation, esthetic, and scenic qualities, even though water impoundments and diversions cannot be made without permits. Also, such permits are usually issued for fixed terms, and may or may not be extended or renewed at the expiration of the term, de- pending on the administrative agency's view of how the public interest will be best served by use of the water at the expiration of the permit period. In some States, permits may be cancelled at any time when the administrative agency concludes that the public in- terest would be best served by such cancellation, but notice to the permit holder is required and hearings are held before such can- cellation becomes effective. It is also common for the permits to con- tain certain conditions and limitations which control the nature, extent, and manner of use by the permit holder. Florida seems to have gone as far as any Eastern State in abolish- ing all riparian rights to impound, divert, and use water. Under legislation recently enacted in that State, all water uses (with some minor exemptions) are subject to permits. The permit requirements appljr to existing riparian rights in actual use as well as to unused riparian rights and to nonriparian uses. Existing riparian users are entitled to an initial permit, but there is no guarantee that the permit will be renewed when it expires. Thus, even existing riparian uses which are reasonable and therefore legal under present law may be extinguished under the statute if the permit initially issued is not approved for renewal. It is likely that the constitutionality of the act will be challenged if a riparian owner with a preexisting use is denied renewal of his initial permit; and if it appears that his water use is reasonable under common law principles, then the constitutional question as to whether a property right has been taken without due process of law will indeed be a difficult one. c. Protecting the Public Interest in Social Values of Water Most States, in both the East and the West, exercise a degree of statutory or administrative control over water use for fish, wildlife, recreation, esthetic, scenic, and environmental values. These water uses ordinarily are instream uses, and are viewed as public rather than private rights. Accordingly, these uses are protected by pro- 499-242-73-----3 |
