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Show WISCONSIN 801 (2) For taconite mining. Any person engaged in the mining and processing of iron ore may apply to the department for a permit to divert water from any stream or lake.31 Mining of this type is declared to be "in the pub- lic interest, for the public welfare" and it is said that it "fulfills a public purpose." The act contemplates the diversion of water for a consumptive use, since the water may be transported to another watershed where mining operations are conducted. In passing upon the application, the department is required to weigh the "public rights" in the stream which may be adversely affected or eliminated against the "public benefits" accruing from such mining operations. The latter are to be judged by such factors as increased employment and income to local governments and the State. If the public bene- fits outweigh public rights, the permit must be issued. The proced- ural provisions relating to agricultural or irrigation permits (sec. 30.18(4)) apply for the most part to these mining permits, although one exception is the time required for the completion of structures. At the time of the filing of the application, the department must determine whether the rights of downstream riparians may be in- jured. If so, it is required to fix a point on the stream below which riparian rights are not "likely" to be injured. Only riparians within the area of prospective injury are entitled to notice by mail of the proposed diversion, but the applicant is required to give such notice only so far as it is reasonably possible to do so. A riparian owner may either appear at the hearing and contest the issuance of the permit or he may, within 3 years after the first exercise of the permit, bring an action of inverse condemnation. The consent of riparian owners is not, however, required as a condition to issuance of the permit. Further, the applicant is entitled to condemn riparian rights ad- versely affected.32 The nature of, duration, and revocability of these taconite permits are discussed in tlie next section of this chapter. 3.2 Nature and Limit of Rights A. RIPARIAN RIGHTS The Wisconsin court has not specifically decided whether riparians may use water or nonriparian land. A dictum in one case might be construed to make such use impermissible.83 The "reasonable use" theory of riparian rights seems well established in Wisconsin,34 although a few of the earlier cases talked in terms of the "natural flow" theory. Various specific uses have been found to be reasonable uses in particular contexts. These include water use for ordinary domestic and livestock purposes, water power, irrigation, bathing, swimming and boating, and a variety of industrial uses.35 There seems to be no indication that any of these uses enjoy a special preference over others. 81 Sec. 107.05 82 The constitutionality of similar statutes was upheld in Clark v. Nash, 198 U.S. 361 (1905). See also Pine Martin Mining Co. v. Empire Zinc Co., 90 Colo. 529, 11 P. 2d 221 (1932). See D. Mandelker, Inverse Condemnation: The Constitutional Limits of Public Responsibility, 1966 Wis. L. Rev. 3. *» Munninghoff v. Wisconsin Conservation Comm'n, 255 Wis. 252, 259, 38 N.W. 2d 712, 715 (19491. But compare Ellis et al., note 2, at 19. 84 See, e.g., Fox River Flour and Paper Co. v. Kelley, 70 Wis. 287, 35 N.W. 744 (1887). 36 See Ellis et al., note 2, at 29-32, -where numerous cases are cited and discussed. |