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Show 30 SURFACE WATERS relation back, all other water rights initiated (and even completed) during the 20-year period would be subordinate and inferior to the water right as ultimately perfected for the full 200 acres. Now, most States in the West require appropriators to process ap- plications for water rights. The typical practice is to require that an application be filed with an administrative officer, usually desig- nated as the "State engineer," who is required to consider the appli- cation and determine whether it should be approved or rejected. Until recent years, the primary determination for the State engineer to make was whether there was sufficient unappropriated water avail- able to satisfy the application without interfering with existing rights. If so, the State engineer rather routinely approved the appli- cation ; if not, the application was rejected, or approved for only that amount of water which was found to be available for appropriation. Statutes in most States required that the application be in the "public interest" before it could be approved, but that phrase was not defined by statute. In large measure the "public interest" was equated with beneficial use. Since water applications could only be approved if they were for beneficial purposes, and since beneficial purposes were in turn equated with economic pursuits, applications for mining, manufac- turing, municipal, and agricultural purposes automatically qualified as "beneficial." Thus, such uses were deemed to serve the "public in- terest," and the applications were approved. Within recent years some States have added legislative criteria to guide the State engineer in acting upon water use applications, in- cluding provisions which require the State engineer to consider in- stream values, and to reject applications which would unreasonably interfere with instream uses. These values might include such con- siderations as fishery resources (maintaining habitat for fish as well as fish life), water quality, streamside vegetation, esthetic and scenic beauty, recreational uses, and other social values which would not have qualified as beneficial uses at earlier times. Stated another way, water in streams which is not required to satisfy existing ap- propriation rights might still be "unappropriated" water, but it no longer would be subject to appropriation if diversion thereof would damage important stream values. The various institutional arrange- ments employed by the States to protect instream values are discussed in chapter 2 of this part I. The important observations at this juncture are that the recent statutes and regulations protecting instream values have altered traditional appropriation concepts by broadening the category of uses which qualify as beneficial, and by dispensing with the requirement of physical diversions from the watercourse. These observations are confined to protection of instream values, since private appropriations are still governed by the traditional requirements and procedures. It is not feasible to generalize with respect to the detailed proce- dures to be followed in filing and processing an application to appro- priate water. While these procedures are usually spelled out in detail by the governing statutes, the practice varies from State to State, and the specific procedure employed by any particular State will be found in the individual digest for that State. |
