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Show WISCONSIN 803 An even more extreme interpretation of the act was suggested to the court in the recent case of State ex rel. Chain CLakes Protec- tive Ass'n. v. Moses,39 where the plaintiff association was a nonprofit corporation consisting of 497 lake property owners in the Waupaca Chain O'Lakes area. The suit was brought to determine whether the defendant, the chief administrative officer of the State depart- ment of veterans' affairs, was required to obtain a permit from the department of natural resources for a proposed diversion of 1.5 mil- lion gallons of water per day from a lake in the area in order to supply a veteran's home located some distance away. The water would have been permanently diverted to another watershed. The court held that under a strict interpretation of section 30.18, no permit is required. The section lists only three situations in which a permit is required-water level maintenance of lakes and streams (surplus water), agriculture, or irrigation (nonsurplus). The present diversion did not fall within any of these classes. The court also felt constrained to discuss the relationship between the limited permit system and the common law riparian system. It felt that the permit statute was in derogation of the common law and therefore to be strictly construed. It refused, however, to decide whether a permit for the purposes specified in the act is required of a riparian owner even when his diversion of nonsurplus water is "reasonable," or whether a permit is required only if the common law test is not in fact met.40 The decision rests on a single question of the scope of the statute. It would not preclude other riparians from suing on the ground that the consumptive diversion is unreasonable. A number of other questions remain.41 Where permits are required, may they be issued only to riparian owners? The statute does not expressly confine permits to riparians. In this connection, it should be noted that subdivision (5) was amended in 1957 to permit a ri- parian permittee to use the water "on any other land contiguous to his riparian land, but he may not withdraw more water than he did prior to August 1, 1957." Another problem is whether the statutory definition of the terms "surplus" and "nonsurplus" is very helpful. They are defined in terms of whether the water is being "beneficially used." The meaning of the latter term is not clear. The permit system has not been extensively used in Wisconsin. It has been estimated that by the end of 1966 there were only 174 irri- gation permits outstanding.42 The procedure for the issuance of per- mits was discussed in section 3.1, supra. It should be emphasized that the above statute is by no means the only legislation in Wisconsin on navigable waters. Chapter 30 of the statutes contains detailed regulations relating, for example, to struc- tures in navigable streams, permits for the enlargement and protec- tion of waterways, the development and operation of harbors, and the regulation of boating. Also of special interest is an act which adopts a permit system for diverting water to and from ore mines and ore processing plants.43 Although the consent of lower riparians 39 53 Wls. 2d 579, 193 N.W. 2d 708 (1972). *° 193 N.W. 2d at 710. ix For an extensive discussion of these and other problems and the current depart- mental practice, see Ellis et al., note 2, p. 795, sec. 12.04. *2 Ellis et al, note 2, table IV at 229. «Sec. 107.05. |