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Show 198 DELAWARE If, on the other hand, the regulation should be construed as to apply only to the permits issued by the commission, then there is no particular problem, because it is highly unlikely that water use rights under permits could be acquired by adverse use or adverse possession, even absent the provision in the regulation. With respect to water use permits, it should be remembered that these rights may be terminated by the commission at any time the commission determines that the water use is either not being ex- ercised or that the use is no longer reasonably beneficial.74 Water use under permits may also be diminished or suspended if a water shortage or emergency results, and is declared by the governor.75 In that event, water use is governed by a priority schedule that pro- vides that water first be used to sustain life, then to maintain health, and then to increase wealth.76 3.5 Storage Waters, Artificial Lakes, and Ponds The cases which discuss impoundment and storage of water in Delaware were decided in the context of mill rights and privileges, and construed statutes relating thereto.77 Those cases are not too important for present purposes, because the recent legislation con- trolling water use extends to storage. In this regard, two observations are significant. First of all, the permit system applies to water use from impoundments, as well as to the impoundments themselves. With regard to the latter, the statute provides: The department of natural resources and environmental control * * * shall approve all new plans and designs of all impounding and water facilities of all water resources by any State, county, municipal, public or private water user within hte State * * * .re The second observation is that there are exemptions in the statute for types of use as well as for certain impoundments, as already discussed in some detail in section 2.1.d of this chapter. With regard to the exemptions for impoundments, it might simply be noted here that three categories are specified: (1) A landowner may place a dam across a gully on his own property, or across a stream which originates on his property, so long as the effect thereof does not reduce the stream below the average minimum flow required by the statute; (2) any person may impound and use water not in excess of 360 acre inches per year on streams having a daily flow of 500,000 gallons or less, so long as minimum stream flows are pro- tected; and (3) impoundments may be constructed for ponds that are not larger than 60,000 square feet, for purposes of "conserva- tion, recreation, propagation and protection of fish or wildlife, watering of stock or fire protection," without regard to minimum stream flow considerations.79 ™ Reg. 201.d. re id. ¦raid. " Garret & Smyth v. Bailey, 4 Del. (4 Harr.) 197 (1844) ; Jones v. Waples, 2 Boorstln's Del. cases 1792-1830, 159 (1802). ™Sec. 7-6104(b)(3). 70 Sees. 7-6103 (2), (3), (4). |