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Show NEW YORK 529 alteration in the natural condition of such watercourse or lake shall be pre- requisite to the maintenance of such an action, the judgment in which shall not affect the rights and privileges of any person or corporation not a party thereto. Such an action shall be maintainable by persons, corporations, gov- ernmental units, owners of land riparian to such a natural watercourse or lake, persons to whom such owners have granted their riparian rights in whole or in part, and owners of prescriptive rights or privileges in the water of or with respect to such watercourses or lakes.2 The statute, literally interpreted and applied, would seem to auth- orize general adjudications of riparian rights on stream systems. Such an action could be maintained by any person claiming an interest in the waters, whether or not there was any present harm to, or threat of future impairment of, his interest; and he could ask the court to "determine the extent of the rights and privileges of him- self and others" in the watercourse. But it is not yet clear how the statute will be interpreted and applied. In one case the court said that the statute did not dispense with the necessity of showing a justifiable controversy before declaratory judgment jurisdiction could be invoked.3 But in that case the com- missioner of environmental conservation had been joined as a de- fendant because he had made certain decisions which the plaintiff viewed as having an adverse effect on its riparian rights, and the court concluded that this did not constitute a justifiable controversy, and dismissed the commissioner as a party. Another part of the statute provides that water uses which cause no harm are lawful and reasonable, and cannot be enjoined,4 and the attorney general has thus ruled that the section quoted above might serve as the basis for a declaratory judgment action, but that the harmless use provision would serve as a defense to any prayer for an injunction if a use inconsistent with declared rights was in fact harmless.5 As a practical matter, the statute probably will not be used ex- tensively. It would seem to be virtually impossible to adjudicate and quantify riparian rights in any large-scale adjudication involving numerous parties. Heretofore, riparian rights have been defined on a case-by-case basis where the reasonableness of the use of one riparian is balanced against the uses or needs of another. No one could mean- ingfully define all of the riparian rights in any major section of a watercourse, including unused riparian rights, and quantify them with respect to each other, taking into consideration such factors as probable future uses and return flows resulting therefrom. However, this is not to discount the extreme utility of the harmless use statute in resolving conflicts before they arise. Other sections of the statute, as discussed in section 3.2, infra, declare that harmless stream, alterations, diversions, and uses may be made, whether on riparian or nonriparian land, and that such activities are reasonable and lawful. As a minimum, these provisions serve to eliminate most of the troublesome and frequently litigated questions which arise when a riparian who is not presently harmed by another's use feels *ECL sec. 15-0701.6. a Village of Nyack v. Spring Village Water Co., 68 Misc. 2d 23, 324 N.Y.S. 2d 721 (1071). <ECL sec. 15-0701.1. 6 1969 Op. Atty. Gen. (Inf., June 18). |