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Show 412 MINNESOTA tion must also be filed for authority to establish and maintain levels on any public wates.27 Applications of this type may be made by any public body or by two or more riparian owners. An application to irrigate public land must state the proposed use and the acreage to be irrigated.28 An application shall be deemed granted if the commis- sioner fails to act within 30 days. 3.2 Nature and Limit of Rights A. PERMITS It is apparent that the original permit statute was influenced to a considerable extent by the Maryland act of 1934. Some of the word- ing was identical. However, there was a substantial revision in 1947 after an interim legislative study, and important amendments were also added in 1965 and 1969. The discussion which follows is, except where otherwise stated, of the present version of the act. After reciting that the purpose of the act is to promote public health, safety, and welfare by conserving and utilizing water re- sources, the opening section (105.38) contains the following three subdivisions: (1) Subject to existing rights all waters in streams and lakes within the State which are capable of substantial beneficial public use are public waters subject to the control of the State.20 (2) The State, to the extent provided by law from time to time, shall control the appropriation and use of surface and underground waters of the State. (3) The State shall control and supervise, so far as practicable, the con- struction, reconstruction, repair, removal, or abandonment of dams, reservoirs, and all control structures in any of the public waters of the State. It should be noted that subdivision (1) above relates only to streams and lakes capable of substantial beneficial public use. As to these, existing rights (as of July 1, 1937) are preserved, and they are declared to be "public waters," i.e., presumably subject to control by the State in its capacity as trustees for the public. Subdivision (2) uses the terms "surface" water and "underground" water, and both are designated "waters of the State" and subject to State control. An important problem is whether existing rights or uses are in fact pre- served as to underground water, since subdivision (2) makes no refer- ence to preexisting uses. Section 105.41 recites that it is unlawful for anyone (including the State, its agencies, and municipalities) to appropriate or use "any waters of the State, surface or underground," without first securing a written permit from the commissioner of the department of natural resources. The section contains two exceptions: (1) use of water for domestic purposes serving at any time less than 25 persons ("domes- tic" is^ nowhere defined in the statute) ; and (2) "any beneficial uses and rights, outside the geographical limits of any municipality, in existence on July 1, 1937, or to any beneficial uses and rights, within the geographical limits of any municipality, in existence on July 1, 27 See. 105.43. 28 Sec. 105.44(8). 29 Two sentences which follow make it clear that the statute applies to nonnavlgable streams and expressly disclaims any intention to establish a test for navigability as a basis for determining title to the bed of such bodies of water. On title questions, see the definitive article by B. Bade, Title, Points and Lines in Lakes and Streams, 24 Minn. L. Rev. 305 (1940). |