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Show 118 ARKANSAS also made provisions for others to acquire the right to use surplus surface water.4 With respect to ground water, each overlying landowner's right is to make a reasonable use of this source of supply. This rule applies whether the ground water is flowing in a well-defined subterranean channel or percolating through the soil.5 While there have been some statutes enacted in recent years deal- ing with the use of water in Arkansas, no comprehensive legislation exists governing the administration and control of water rights in the State. 2. State Organizational Structure for Water Administration and Control. 2.1 Administration of Water Rights Historically, the definition and evaluation of the individual's right to use water from a watercourse has been a matter of judicial decision, applying the principles of the riparian doctrine of water rights. Under the riparian concept, the right to the use of the water of a stream is an incident of the ownership of land bordering the stream.6 However, in recent years there has been some legisla- tion enacted through which the State exercises some control over the allocation and distribution of surplus surface water. The pur- pose of the act is stated to be to permit and regulate the construc- tion of facilities to store surplus surface water for future use, to protect the rights of all persons interested in the use and disposition of surface water, to maintain the normal flow of all streams and preserve the fish therein, to prevent harmful overflows and flooding, and to conserve the natural resources of the State.7 This act is administered by the Arkansas Soil and Water Conser- vation Commission. No person shall construct a dam or impound water on any stream without obtaining a permit from the commis- sion. The application for a permit shall be accompanied by plans and specifications, provision is made for notice by publication of the proposal, and a hearing may be requested by any interested party. A permit is to be granted on the condition that it impouund only surplus surface water and that there be discharged each day a quantity of water, as fixed by the commission, which will protect lower riparian rights and fish and wildlife. The water impounded may not overflow the lands of another unless a right to do so has been acquired. The permit is issued for a period fixed by the com- mission, but not exceeding 50 years. However, for good cause shown, a permit may be extended for an additional period to be fixed by the commission, but also not exceeding 50 years. Provision is made for the issuance of a new permit when there is a change in the owner- ship of a dam. A permit may be modified or cancelled, after notice and hearing, upon failure of the person holding the permit to * Ark. Stat. sees. 21-1301 to 1331. 8 Jones v. Oa-Arh-Val Poultry Co., 228 Ark. 76, 306 S.W. 2d 111 (1957). a Harris v. Brooks. 225 Ark. 436, 283 S.W. 2d 129 (1955). * Ark. Stat. sec. 21-1301. |
