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Show 802 WISCONSIN B. WATER PERMITS In 1935, the Wisconsin Legislature adopted, after a period of severe drought, a limited permit statute.36 It was intended primarily to authorize permits to divert water from any stream for the purpose of bringing back or maintaining the normal water level of any navigable stream or lake, regardless of whether the latter body of water was within the watershed of the stream from which the water was to be diverted. At the insistence apparently of the cran- berry growers,37 the act was enlarged to include diversions for the purpose of "agriculture or irrigation." Subsequent amendments be- came effective in 1967 and 1969. In the early 1950's, several bills were introduced in the legislature which would have repealed the 1935 act and substituted a general permit procedure for all diversions of water from streams for beneficial uses.38 These bills failed to pass, with the result that, at the present time, Wisconsin has in addition to the common law riparian system only a very limited permit act. The act in its present form (sec. 30.18) provides in subsection (1) that it is lawful to divert the "surplus water" from a stream to main- tain the water level of any navigable lake or stream. It is also pro- vided that nonsurplus water may be diverted for the purpose of agriculture or irrigation with the consent of riparian owners dam- aged thereby, "but no water shall be diverted to the injury of pub- lic rights in the stream or to the injury of any riparian located on the stream," unless such riparian consents thereto. Subdivision (2) defines surplus water as "any water of a stream which is not beneficially used." The department of natural resources (formerly the public service commission) is authorized to determine how much of the flowing water at any point in a stream is surplus water. Sub- division (3), as amended, makes it unlawful to divert water for the purposes set forth in subdivision (1) (maintenance of water level, agriculture, or irrigation) without a permit. The scope of the act has been the subject of two Wisconsin Supreme Court decisions, one of which is very recent. Up to the time of the first case in 1959, the State agency had always interpreted section 30.18 to mean that in diversions of nonsurplus water, a permit might be issued without the consent of riparians if it was found that they would not in fact be substantially damaged. This interpretation was flatly rejected by the court, because, it was said, such a construction would create a third category not found in the statutory language, viz., situations in which riparian owners are "beneficially" using non- surplus water (otherwise it would be "surplus water"), but where the department finds that they are not substantially damaged. The court felt that nothing in the act indicated that the legislature in- tended to adopt a general permit system for the consumptive use of nonsurplus water for agriculture or irrigation. 36 Section 30.18. See Comment, Wisconsin's Water Diversion Law: A Study of Admin- istrative Case Law, 1959 Wis. L. Rev. 279. 37 See Nekoosa-Edwards Paper Go. v. Public Service Comm'n, 8 Wis. 2d 582, 99 N.W. 2d 821 (1959). 38 Id. 99 N.W. 2d at 828. See also Coates, Present and Proposed Legal Control of Water Resources in Wisconsin, 1953 Wis. L. Rev. 256; H. Ellis, Some Current and Proposed Water-Rights Legislation in the Eastern States, 41 Iowa L. Rev. 237, 252-54 (1956). |