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Show WEST VIRGINIA 785 The 1969 session of the West Virginia Legislature enacted a Nat- ural Streams Preservation Act. This act declared it to be the public policy of the State to secure for the citizens of West Virginia the benefit of free-flowing streams possessing outstanding scenic, recre- ational, geological, fish and wildlife, botanical, historical, archeo- logical, or other scientific or cultural values. Certain streams are designated by the act as protected streams to be administered in such a manner as to leave them unimpaired for future use and en- joyment as free-flowing streams, preserved in their natural condi- tions.7 It is unlawful to impound, divert, or flood any protected stream without obtaining a permit for the proposed modification from the chief of the division of water resources. No permit is to be issued until after notice is published of the proposal, and actual notice served on abutting property owners, and a public hearing held. A permit will not be issued unless the proposed work will not mate- rially alter or affect the free-flowing characteristics of a substantial part of the protected stream, is necessary to prevent an undue hard- ship, and meets with the approval of the chief. A permit may be issued subject to appropriate conditions, qualifications, or limitations. Permits are transferable to a new owner upon sale of property. Once a permit is issued, the chief is authorized to inspect the work and issue orders to compel compliance with the permit or to take action to revoke or suspend the permit.8 When any person is adversely affected by an order of the chief, or upon failure of the chief to act on an application within 45 days after a hearing, an appeal may be taken to the water resources board. The board hears the appeal de novo, and after it hears the evidence and enters its order, any person adversely affected is entitled to seek judicial review thereof.9 Any violation of the act or of any final order of the chief or the board shall be deemed a nuisance which may be abated, and an in- junction may be sought to compel compliance with a final order of the chief or the board. Criminal penalties are also imposed for vio- lations of the act or of any final order of the chief or the board.10 The West Virginia Water Pollution Control Act is administered by the division of water resources and the water resources board. The powers and duties of these two agencies in this regard are discussed in section 2.3.a below. 2.2 Resolution of Water Use Conflicts As already observed, since West Virginia has no State administra- tive procedures designed for the express purpose of resolving con- flicts between water users, the definition of individual water rights and the resolution of water use conflicts and disputes have been a matter of judicial decision in litigation arising between individuals over the right to use water or to dispose of excess water. Such ac- tions usually take the form of injunctive proceedings to prevent 7 West Va. Code, sees. 20-5B-1 to 2O-5B-4. «West Va. Code, sees. 20-5B-5 to 20-5B-9. 9 West Va. Code, sees. 20-5B-10, 20-5B-11. 10 West Va. Code, sees. 20-5B-12 to 20-5B-15. |