| OCR Text |
Show SURFACE WATERS' 31 By way of general procedures and principles, however, a few ob- servations can foe made. It can be said that applications ordinarily are filed with a central State office and are reviewed by the State ad- ministrative officer charged with water rights administration; notice of the application is published so that all water users who might be affected by the proposed appropriation will be aware of it; protests may be filed by any water user who believes that he would be ad- versely affected if the application were approved; if protests are filed, hearings are held to hear the testimony of the applicant and the pro- testants, and their supporting witnesses; the administrative officer makes a determination either approving the application or rejecting it, or approving it subject to conditions or limitations, or for a lesser amount of water than applied for in the application; and any party aggrieved by the administrative decision is allowed to appeal to the court. The appeal is usually in the form of a trial in the district court, although there are differences with respect to the scope of review. Some States provide for a trial de novo, where the proceedings begin anew as if there had been no hearing before the State engineer. Other States provide for the substantial evidence rule, whereunder the dis- trict court may reverse the determination of the State engineer only if he finds that there is no substantial evidence to sustain the en- gineer's decision. There may be an appeal to the State supreme court from the decree of the district court. If the application is approved, it is only an inchoate right, to be perfected by exercising reasonable diligence in constructing necessary works and facilities and applying the water to use. The approved application usually states the time in which the water must be ap- plied to use, and the period of time prescribed will vary in accord- ance with the magnitude of the project or the complexity of complet- ing the diversion. In most States the administrative officer is given discretion to extend the time for completing works and facilities, upon request for the same by the applicant, if it appears that the ap- plicant has exercised diligence but has been unable to complete the appropriation through no fault of his own. Sometimes other water users are required to be given notice of requests for extension of time, so that they may challenge the claim of the applicant that he has ex- ercised diligence. Successive requests for extension of time to com- plete appropriations ordinarily may be granted, in some instances for as long as a cumulative period of 50 years from the date the ap- plication was approved, although in actual practice extensions for such protracted periods are rare. If the applicant cannot, or does not, show due diligence, his appli- cation may be terminated, or "lapsed." If he fails to appeal such ac- tion, it becomes final; although he mav thereafter petition the State engineer to reinstate his application. However, a reinstatement car- ries a priority date as of the date of reinstatement, and the priority date of the original application is lost-so, for practical pur- poses, the petition for reinstatement operates as a new application to appropriate. When the works are completed and the water is diverted and ap- plied to use, the appropriation is completed but the water right is |
