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Show 628 OREGON by the State engineer or the water resources board to the appropriate courts of the State.96 The State engineer may approve a permit for less water than applied for, or include in any permit terms, limitations, and condi- tions necessary for the protection of the public interest, including such terms, limitations, and conditions relating to the release of water from an impoundment or diversion structure as may be neces- sary to prevent rapid fluctuation in stream level. In any event, the limit of the right obtained under the permit is measured by the amount of water which can be applied to a beneficial use.97 Once an application is approved, the applicant must proceed with reasonable diligence to construct his project and place the water to beneficial use. For good cause shown, the engineer may allow an ex- tension of time to complete the project.98 Upon completion of the project to the satisfaction of the State engineer, the applicant is issued a certificate evidencing his perfected right.99 If the applicant fails to perfect his appropriation within the time allowed, his appli- cation is cancelled.100 3.2 Nature and Limit of Rights a. INTERRELATIONSHIP OF RIPARIAN AND APPROPRIATION RIGHTS While new rights can only be acquired by the filing of an applica- tion with the State engineer, all appropriations are subject to valid prior rights.101 Therefore, all extent of prior demands on a stream by virtue of existing riparian rights becomes an important factor in determining what water is available for appropriation. As pointed out in section 2.2, supra, a statutory procedure exists for adjudicating riparian rights which vested prior to the adoption of the water code in 1909. A vested riparian right, as defined by the water code, is limited to the extent of the actual application of water to beneficial use prior to the effective date of the act (February 24, 1909), pro- vided the use has not been abandoned for a continuous 2-year period, and those riparian uses which were placed to beneficial use within a reasonable time after the enactment of the water code.102 Thus, even though riparian rights are preserved and protected, they are subject to the beneficial use limitation-the same as appropriation rights. The Oregon Supreme Court has ruled that a riparian owner who claims a right to the use of water on both riparian and appropriation grounds must choose between them.103 In other words, a water user cannot, at the same time, claim a right as a riparian owner and also as an appropriator. He may claim as one, but not both. 88 Sec. 537.187. OTSec. 537.190. 98 Sec. 537.230. 69 Sees. 537.250 and 537.270. 10°Sec. 537.260. 101 Sec. 537.120. 108 Sec. 539.010. 108Hutchins, The Oommon-Law Riparian Doctrine in Oregon: Legislative and Judicial Modification, 26 Oregon Law Review 200 (1957) ; Williams v. Altnow, 51 Oreg. 275, 95 Pac. 200, 97 Pac.539 (1908). |
