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Show SURFACE WATERS 33 those cases were only private interests, and in some cases the courts held that polluters could not be enjoined if the polluting use had con- tinued for a sufficient length of time to give rise to prescriptive rights. It is the public interest that now justifies administrative regu- lation of water quality, and the earlier cases which found pre- scriptive rights to continue polluting against private persons are not authority for any right to continue pollution contrary to the public interest in the use of water resources. b. Appropriation Rights Most of the characteristics of and limitations upon appropriation water rights have already been mentioned; and other features, such as loss of rights and sales and transfers, are discussed subsequently in this chapter. For the present, it seems advisable to note only three additional aspects of appropriation rights: (1) the importance of the original intent of the appropriator; (2) the duty to avoid waste in water diversion and use; and (3) preferences in use. (1) ORIGINAL INTENT It has already been explained that the original intent of the ap- propriator is important in determining the scope and extent of his appropriation, because his right, when perfected, will relate back to the date of his first act to initiate the appropriation-and that will become the priority date of his right. But the original intent of the appropriator also has an important bearing on the source of water which is to satisfy the right. When applications to appropriate are filed under present pro- cedures, the applicant is required to describe the specific water source and any larger stream to which it is tributary, and if the application is approved and the right perfected, the call upon the watercourse is limited to the source of water described in the application, and tribu- tary sources above the point of diversion. Even where rights were acquired without applications, the law presumes that the appro- priator intended to appropriate only that water which was then available in the source from which the appropriation was made. This principle is important in those situations where the water supply of a stream system is augmented after appropriation rights have been acquired. Such augmentation may occur in a number of ways: transbasin diversion may import water, which, after use by the importer, will seep into the stream; municipalities might pump underground water for municipal use, and then discharge the effluent from treatment plants into surface watercourses; and drainage ditches and conduits sometimes gather water and discharge it into streams. As a legal matter, this new source of supply is not subject to use by those who hold rights which were acquired before the new water was introduced into the stream system, but is available for new appropriations. Thus, it is entirely possible to have a stream that is overappro- priated by existing rights, to have the stream augmented by the dis- charge from a municipal or industrial treatment plant, and then to have a new applicant file to appropriate the new supply of water. |