Title: Proposed Surface Water Law for Michigan
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Permanent Link: http://ufdc.ufl.edu/WL00003052/00001
 Material Information
Title: Proposed Surface Water Law for Michigan
Physical Description: Book
Language: English
Publisher: The Ronald Press Company
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Proposed Surface Water Law for Michigan
General Note: Box 12, Folder 7 ( The Law of Water Allocation In The Eastern United States - 1956 ), Item 4
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003052
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



PROPOSED SURFACE WATER LAW FOR MICHIGAN


An act to provide for the regulation, under the police power of the
state, of the diversion and use of surface waters for all beneficial purpos-
es; to provide for the acquisition of new rights to the use of such waters;
to vest in the Michigan Water Resources Commission certain supervisory
powers in such respects; and for other purposes.

The People of the State of Michigan enact:

Section 1. DECLARATION OF STATE POLICY. The conditions within
the State of Michigan with reference to the availability of water are such
that the public welfare requires that water be put to the highest beneficial
use; the use of water for irrigation, municipal, industrial, water power,
recreational, navigation, and all other beneficial purposes is a matter of
public interest and public welfare; the proper use of surface waters will
facilitate the conservation of ground waters in many areas; and by encour-
aging the construction of pumping plants, dams, reservoirs, conduits, and
other structures to permit the proper collection, conservation, and use of
surface water, the public welfare is served. It is therefore declared to be
the policy of the State of Michigan that control of the use of water for all
beneficial purposes shall be in the State, which in the exercise of its police
powers must take such measures as shall effectuate the best utilization of
the water resources of the State.
Section 2. EXISTING RIGHTS PRESERVED. Nothing in this act is in-
tended to impair any existing valid right in the use of water, or to inter-
fere with the continuance of any such right, or to prevent the maintenance
of such stream flows or lake levels as are necessary to the reasonable
exercise of private vested rights and to the reasonable use of natural
streams and lakes for public purposes of recreation, fishing, sanitation,
and navigation.
Section 3. DEFINITIONS. When hereinafter used in this act, unless the
context otherwise requires,
The terms "water" or "waters" shall be deemed to refer to any waters,
standing or flowing, in any natural watercourse, lake or pond on the
surface of the ground.
The term "watercourse" shall be deemed to refer to a definite natural
stream in a definite natural channel, originating from a definite source
or sources of supply.
The term "diffused surface water" shall mean water occurring naturally
on the surface of the ground other than in watercourses or lakes or
ponds.
The terms "use of water," "application of water to beneficial use" and
similar expressions shall be deemed to refer to --







LAW OF WATER ALLOCATION


(a) the beneficial use of water by the holder of the right to such use,
and also
(b) the sale of water to other persons for beneficial purposes by the
holder of the right to such use, and also
(c) the use by such purchasers of the purchased water for benefi-
cial purposes,
regardless of whether such water be used directly after having been
diverted from the source of supply, or be used therefore after having
been stored in a reservoir or reservoirs for use later in the same
year or in a subsequent year or years.
The terms "water right" or "right to the use of water" shall be deemed
to refer to the right to divert and appropriate water for one's own use,
or for sale to others, or both. Such right may relate to the diversion
of water for direct use, or to the storage of water for later use (that is,
for use later in the same year or in a subsequent year or years), or
both, provided the total quantity of water does not exceed the quantity
required for beneficial use.
The term appropriativee water right" or appropriativee right" shall be
deemed to refer to the right to the use of water evidenced by a permit
or license issued by the Commission as hereinafter defined.
The term "riparian land" shall mean land lying (a) within the water-
shed of a watercourse or lake, (b) contiguous to such watercourse or
lake, and (c) consisting of the smallest tract held under one title in the
chain of title leading to the current owner.
The term "purpose of use of water" shall mean the nature or character
of the use to which the water is put, such as domestic, irrigation, muni-
cipal, industrial, recreational, or other particular beneficial use.
The term "domestic use" shall mean the use of water by an individual
or family for household purposes, for the watering of customary fami-
ly farm animals, and for the watering of a yard or garden for family
use.
The term "Michigan Water Resources Commission" (hereinafter called
"Commission") shall be deemed to refer to the Michigan Water Re-
sources Commission created under Public Act 117 of the legislature
for the year 1949, and therein designated as "water resources com-
mission."
The term "person" shall be interpreted to include any natural person,
partnership, firm, association, cooperative, corporation (private or
public), improvement district, or State or Federal agency.
Section 4. UNITS OF MEASUREMENT OF WATER. (a) The cubic foot
per second and the gallon per minute shall be the units of measurement of







MICHIGAN PROPOSAL


flowing water; the cubic foot per second being equivalent to four hundred
and fifty gallons per minute.
(b) The acre-foot shall be the unit of measurement of water stored
in reservoirs.
Section 5. LIMITATIONS UPON WATER RIGHT. The right to the ben-
eficial use of water shall not be deemed to include the right to use more
water than is necessary for reasonable beneficial purposes nor shall it in-
clude the right to resort to unreasonable methods of diversion. No such
right shall be deemed valid unless the right to construct diversion works
or reservoirs upon the land required therefore shall have been acquired in
a lawful manner, provided that the term "acquired in a lawful manner"
shall be deemed to include the acquisition of such rights by adverse use
and adverse possession.
Section 6. EXEMPTIONS. The provisions of this Act shall not apply to
the impounding, by an owner or lawful occupant of land, of diffused sur-
face waters occurring on such land for the purpose of using such waters
on such land.
Section 7. VESTED RIGHTS. Class A. The holder of any tract of land
that now conforms, or hereafter shall conform, to the definition of ripar-
ian land in Section 3, supra, shall be deemed to have a Class A vested
right to the reasonable use of the stream or other body of water to which
his land is riparian, for purposes of domestic use as defined in Section 3,
supra, power, recreation, and fishing on or in connection with such
land.
Class B. Actual application of water under reasonable methods of
diversion to reasonable beneficial use other than in the exercise of a
Class A vested right, on or in connection with either riparian or nonripar-
ian land, prior to the date upon which this Act shall go into effect, shall be
deemed to create in the person effecting such use or in his successor in
interest a Class 3 vested right to the extent of the actual application to
such reasonable beneficial use; provided, such use has not been abandoned
in the manner provided in Section 23, infra. The priority of such right
shall date from the time of actual application of water to beneficial use.
Section 8. EFFECT OF PRIORITY OF RIGHT. The natural supply of
water in any natural watercourse or lake shall be available at all times for
the requirements of Class A vested rights as provided for in Section 7,
supra, and for the other uses provided for in Section 2, supra. The ex-
cess over such requirements at any particular time shall be available for
the requirements of Class B vested rights provided for in Section 7, supra,
and for the appropriative rights acquired after the effective date of this
Act under the procedure provided for that purpose in Section 11 et seq.,
infra, in the order of their respective dates of priority. No holder or
claimant of a Class B vested right or of an appropriative right shall be
entitled to divert or impound or use water at any time when such water is
required to satisfy both (a) the Class A vested rights and other uses







LAW OF WATER ALLOCATION


hereinabove referred to, and (b) any Class B or appropriative right or
rights with an earlier date or dates of priority.
Section 9. POWERS OF COMMISSION. (a) Authority to administer this
Act is hereby conferred, subject to the provisions hereinafter set out, upon
the Commission, which shall be charged with the responsibility of enforcing
the provisions hereof; and such authority shall be exercised by and through
such officer or employee of the Commision as the Commision shall designate,
(b) The Commission acting in accordance with Civil Service regula-
tions shall procure the appointment of such employees as shall be needed
to administer the provisions of this Act, and shall prescribe their duties.
(c) In the discharge of its duties, the Commission shall cooperate
with all State and Federal agencies exercising functions in respect to the
subject- matter hereof, in which connection it is specifically authorized to
enter into such contracts or agreements with such other State or Federal
agencies as may enable it to secure information necessary or convenient
for its operations hereunder or otherwise facilitate the execution of this Act.
(d) In order to carry out the purposes of this Act, officials and em-
ployees of the Commission are authorized to enter and cross all lands
within the State, provided that in so doing no unnecessary damage is done
to private or public property. In the event a property owner claims dam-
age to his property arising under this Section, he shall file a claim for
such damage with the agency provided by law for the handling of claims
against the State, which claim shall be disposed of as provided for the
handling of other claims against the State.
(e) The Commission, from time to time, subject to the provisions
of the Administrative Code Act, shall promulgate, publish, and enforce
such reasonable rules and regulations as it deems to be necessary or de-
sirable to effectuate the purposes of this act, and shall make copies of
such rules and regulations available to interested persons upon request.
(f) The Commission may hold hearings, upon its own motion or up-
on request of interested persons. Except where otherwise specifically
provided in this Act, notice of the time and place of such hearings shall
be given in the manner prescribed in the rules and regulations of the Com-
mission. The Commission, in its rules and regulations, shall prescribe
rules of practice and procedure governing the taking of testimony and
the conduct of hearings.
(g) At any hearing or other proceeding authorized by this Act, the
Commission, or its duly authorized agents, shall have power to adminis-
ter oaths; to take testimony and compel the introduction of written evi-
dence; to issue subpoenas and compel the attendance of witnesses, which
shall be served in the same manner as subpoenas issued out of the chan-
cery courts of the State; and to order the taking of depositions and to issue
commissions therefore in the same manner as depositions are taken in the
chancery courts of the State.
(h) The decisions of the Commission may be reviewed as provided
in Section 8a, Public Act 117 of 1949.







MICHIGAN PROPOSAL


Section 10. ADMINISTRATIVE AREAS; CLAIMS OF VESTED WATER
RIGHTS.
(a) The Commission from time to time shall designate areas of the
State for convenience in administering this Act, and shall cause notice of
the designation of any such administrative area and of the purpose thereof
to be published, once each week for three successive weeks, in a news-
paper of general circulation in each county any portion of which is includ-
ed within such administrative area. Such notice shall fix a date, not less
than three months nor more than six months following the date of lastpub-
lication of the notice, on or beforewhich statements of claims of rights to
Sthe use of water vested upon the effective date of this Act shall be filed
with the Commission as required by subsection (b) of this Section.
(b) In any such administrative area, every person who claims a
Class B vested right provided for in Section 7, supra, shall on or before
the date fixed in the notice, file with the Commission a claim (a claim
filed under this section being hereinafter referred to as a "claim") of the
right to such use of water. Such claim shall be made upon forms provided
by the Commission, and shall be verified under oath.
(c) The claim shall set forth the name and postoffice address of the
claimant; the source of water supply; the location of the point of diversion,
and the location and description of the pumping plant, ditch, canal, reser-
voir, or other works; the purpose of use of the water; the maximum quan-
tity of water (expressed in cubic feet per second, or in gallons per minute)
diverted for direct use, and the maximum quantity of water (expressed in
acre-feet) stored annually for use when needed; the location of the land
on which the water is used and, if for irrigation, the area and legal de-
scription of the land irrigated and the kinds of crops cultivated under ir-
rigation; the dates of construction of water use facilities and applying
water to beneficial use; and such other data, including maps, as may be
required by the Commission.
(d) The Commission shall keep a record of each claim filed as pro-
vided in this Section and of the date of filing. Such records or copies
thereof, officially certified, shall be prima facie evidence of the truth of
their contents.
Section 11. APPLICATION TO APPROPRIATE WATER. (a) Every
person who shall desire to obtain a right to the use of water on or in con-
nection with either riparian or nonriparian land not vested on the date
this Act goes into effect shall file with the Commission an application (an
application under this section being hereinafter referred to as an "appli-
cation") to appropriate such water. It is the express intention of the Leg-
islature that rights to the use of water (as the term "water" is defined in
Section 3, supra) vested on the date this Act goes into effect shall com-
prise only those rights declared vested in Section 7, supra, and that the
procedure provided in this Act for the appropriation of water shall be the
exclusive method by which rights to the use of water not vested on the
effective date of this Act may be acquired after such effective date.







LAW OF WATER ALLOCATION


(b) Such application shall set forth the name and postoffice address
of the applicant; the source of water supply; the location of the proposed
point of diversion, and the location and description of the proposed pump-
ing plant, ditch, canal, reservoir, or other works; the proposed purpose of
use of the water; the quantity of water (expressed in cubic feet per second,
or in gallons per minute) proposed to be diverted for direct use, and/or the
quantity of water (expressed in acre-feet) proposed to be stored annually
for use when needed; the period of the year during which the water is pro-
posed to be diverted for direct use, and/or diverted for storage; the loca-
tion of the land on which the water is proposed to bemused, and, if for ir-
rigation, the area and legal description of the land proposed to be irrigated
and the kinds of crops proposed to be cultivated under irrigation; the time
within which it is proposed to begin construction; the time required for
completion of the construction; and the time required to effect complete use
of the water. Said application shall be upon such form and shall be ac-
companied by such additional data, including maps, as may be required by
the Commission.
(c) In the event an application is made to appropriate water for the
purpose of replenishing a ground-water supply, the application shall set
forth such of the foregoing requirements as, in the judgment of the Com-
mission, are applicable to the proposed disposition of the water, together
with such additional information as the Commission may require.
Section 12. RECORDATION AND PRIORITY OF APPLICATION; DE-
FECTIVE APPLICATION. (a) Upon receipt of an application to appro-
priate water, it shall be the duty of the Commission to make an endorse-
ment thereon of the date and hour of its receipt and to keep a record of the
same. The priority of the right under such application shall date from the
time of its receipt by the Commission, and shall become the priority of the
right under any permit and/or license based upon such application.
(b) If upon examination, the application is found to be defective, it
shall be returned for correction or completion; and the date of, and rea-
sons for, the return thereof shall be endorsed thereon and make a matter
of record in the office of the Commission. No application shall lose its
priority of filing an account of such defects, provided data and proof meet-
ing the requirements of the Commission are filed with it within thritfdays
from the date of such return to the applicant or within such further time
(not exceeding one year) as may be given by the Commission.
Section 13. APPROVAL OR REJECTION OF APPLICATION. Upon
receipt of an application the Commission shall make such investigation as
may be necessary and, subject to the provisions of Sections 14 and 15,
infra, it shall be the duty of the Commission to approve or reject the appli-
cation in whole or in part.
Section 14. GROUNDS FOR APPROVAL OR REJECTION OF APPLI-
CATION. Every application that fulfills all of the requirements of this
Act, and of the rules and regulations of the Commission promulgated in







MICHIGAN PROPOSAL


in pursuance thereof, shall be approved by the Commission. Before acting
upon an application, the Commission shall consider all the circumstances
of the proposed use of the water, including the character of the land and
the desirability of irrigating such land. The Commission shall also consi-
der whether the approval of the application will impair any vested rights
as provided for Section 7, supra, or will interfere with the maintenance of
the flow of the stream or level of the lake, as the case may be, reasonably
necessary to safeguard the uses provided for in Section 2, supra. Any ap-
plication, the approval of which would conflict with the public interest, as
stated in Section 1, supra, or with the requirements of this section, or
which is shown not to have been made in good faith, shall be rejected by the
Commission. If two or more applications are pending for a quantity of VI
water that is inadeuoth r all or which for any other reason are
in conflict, the Commission shall have the right to approve that application
which best serves the public interest. If in the opinion of the Commission
there appear to be assured prospective uses of the water that would bet-
ter serve the public interest or general welfare, then the Commission may
reject or may postpone the approvaloaTan application that would not serve
so well such public interest or general welfare.
Section 15. NOTICE OF APPLICATION; PROTEST; HEARING. (a) Be-
fore approving or rejecting an application, the Commission shall cause
notice of the filing thereof to be published, at the expense of the applicant,
in one issue of a newspaper of general circulation in each county in which,
as shown by the records of the Commission, diversions of water under
rights or claims of right to the use of water from the source of water sup-
ply named in the application are located. The notice shall fix a date, not
less than fifteen days nor more than thirty days after the date of publication,
by which written protests against the approval of the application may be
filed with the Commission by any interested person; such protests to state
generally the grounds therefore, and to be signed by and to give the post-
office address of the person making the protest.
(b) If no protest is filed as provided in subsection (a) of this Section,
the Commission shall proceed to approve or reject the application. In the
event that the Commission shall reject the application in whole or in part,
it shall, within ten days after date of such rejection, notify the applicant
of its ruling; which notice shall be given by mailing a copy of such ruling
to the applicant by registered mail (return receipt requested) directed to
him at his last address as shown by the records of the Commission.
Whereupon such applicant may, within thirty days after the mailing of such
notice, file a petition with the Commission requesting a hearing. Such
hearing shall be granted, and shall be commenced upon a date specified by
the Commission after notice to the applicant. In the event the Commission,
on such hearing, shall reject the application in whole or in part, it shall
prepare a written opinion setting forth such ruling and containing specific
findings of the grounds upon which the application is rejected.







LAW OF WATER ALLOCATION


(c) If any protest is filed as provided in subsection (a) of this Sec-
tion, the Commission shall set a time and place for hearing all such pro-
tests, and shall send a notice of the hearing by registered mail (return
receipt requested) to the applicant and to each person who has filed a pro-
test, directed to him at his designated postoffice address. After the con-
clusion of the hearing the Commission shall approve or reject the appli-
cation in whole or in part, and shall prepare a written opinion setting
forth such ruling and containing specific findings of the grounds therefore.
Section 16. PERMIT. (a) In every instance where an application to
appropriate water shall be approved by the Commission, pursuant to its
own decision or pursuant to a judicial review, the Commission shall issue
a permit for the construction or installation of the proposed facilities and
for the effectuation of the proposed appropriation.
(b) The permit shall specify, among other things, the name and
postoffice address of the person whose rights are evidenced thereby; the
source of water supply, the location of the point of diversion, and the lo-
cation and description of the pumping plant, ditch, canal, reservoir, or
other works; the purpose of use of the water; the maximum quantity of
water (expressed in cubic feet per second, or ingaUlos per minute) per-
mitted to be diverted for direct use, and/or the maximum quantity of
water (expressed in-acre-feet) permitted to be stored annually for use
when needed; the period of the year during which water is permitted to be
diverted for direct use, and/or diverted for storage; a description of the
legal boundaries or subdivisions of the land constituting the gross area
within which the water use may be effected under the permit (which in the
case of irrigation may be made larger then the net maximum irrigable
area, as provided in Section 20, infra); the period within which construc-
tion or installation of facilities shall be commenced; the period within
which construction or installation of these facilities shall be completed
and the beneficial use of water commenced (which period shall be two
years from the date of the permit or suchsubstituted period as the Com-
mission shall specify); and in the case of irrigation the period within
which the initial irrigation of the estimated maximum aceeage irrigable in
one.year shall be completed; provided, in ahy ease, the construction or
installation of all facilities shall be.prosecuted with reasonable diligiece,
for a failure in which respect the Commission may (after a hearing on
notice) cancel the permit prior to the expiration of the period stipulated
therein; provided, further, the Commission may, for good cause shown,
extend or successively extend the periods.of time prescribed in the per-
mit. The Commission, at-its discretion, may authorize a proposed devel-
opment to be prosecuted in successive units, and in such case.shall pre-
scribe appropriate periods within which construction or installation of
water diversion facilities shall be commenced and completed and the wa-
ter!appropriated therefore applied to the proposed me.
(c) If the terms of a permit are not complied with during the period


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MICHIGAN PROPOSAL


or periods of time prescribed in the permit or as extended by the Com-
mission, the Commission shall order the holder of the permit, by regis-
tered mail (return receipt requested) directed to his address as shown by
the records of the Commission, to appear and show cause why the permit
should not be cancelled. The Commission upon such hearing may extend
any such period of time if good reason is shown therefore. If the holder of
the permit fails to show good reasons for failure to comply with the terms
of the permit, the Commission shall cancel the permit.
(d) Upon the cancellation of a permit as provided in this Section, all
rights of the holder that are evidenced by such permit shall cease.
Section 17. LICENSE. (a) Whenever it shall appear to the satisfaction
of the Commission that an applicant has completed, within the time pre-
cribed by the Commission, the construction or installation of all facilities
contemplated under the permit, and has effected the complete use of the
water under the terms of the permit, then the Commission shall issue to
such applicant a license evidencing his right to the use of such water.
S (b) Such license shall set forth the name and postoffice address of
the owner of the right; the date of priority of the right; the source of wa-
ter supply; the location of the point of diversion, and the location and de-
scription of the pumping plant, ditch, canal, reservoir, or other works;
Sthe purpose of use of the water; the maximum quantity of water (expressed
in cubic feet per second, or in gallons per minute) permitted to be diverted
for direct use, and/or the maximum quantity of water (expressed in acre-
feet) permitted to be stored annually for use when needed; the period of
the year during which water is permitted to be diverted for direct use,
and/or diverted for storage; a description of the legal boundaries or sub-
divisions of land constituting the gross area within which the water use
may be effected under the license (which in case of irrigation may be
made larger than the estimated maximum irrigable area, as provided in
Section 20, infra, and upon any part of which gross area the water may be
used at the pleasure of the holder of the right); and such other matters as
the Commission shall deem necessary.
(c) Such license shall not become operative until the same is filed
for record in the office of the Register of Deeds of each county wherein
the authorized diversion of water and the use thereof are to be effected;
but the priority of the right evidence by such license shall not be con-
trolled by the date of filing for record.
Section 18. INSTRUMENT SPECIFYING MAIL ADDRESS OF PARTY.
Every person filing a claim or application with the Commission shall be
required to sign and file with the Commission a written instrument speci-
fying the address of such person and containing an agreement of his part
that in any proceedings thereafter pending before the Commission affec-
ting the subject-matter of his claim or application, or any permit or li-
cense thereafter issued thereon, all notices to which he may be entitled
may be served by mailing the same, registered mail (return receipt







LAW OF WATER ALLOCATION


requested), to him at the address shown in said instrument, and that such
maining shall constitute lawful and effectual service of said notice upon
him. Said instrument shall likewise provide that the authority therein con-
ferred can be revoked only by the execution and filing with the Commis-
sion of a similar instrument specifying a substituted address. The term
"address as shown by the records of the Commission," wherever used in
this Act, shall refer to the address disclosed by the written instrument
required under this section.
Section 19. PROTECTION OF FISH. Every permit and license issued
under this Act shall contain a provision to the effect that the right to di-
vert or impound water thereunder shall be subject to the limitation pre-
scribed in Chapter 307, Compiled Laws of Michigan, 1948, relating to the
protection of fish.
Section 20. GROSS AREA FOR IRRIGATION RIGHT. Every permit
or license relating to the use of water for irrigation may be made appli-
cable to any gross area containing not more than five times the estima-
ted maximum acreage irrigable in one year with the quantity of water
authorized to be used thereunder and upon any part of which gross area
the water may be used at the pleasure of the holder of the permit or li-
cense, provided such permit or license may be made so applicable to a
larger acreage in cases where, in the opinion of the Commission, the
circumstances so justify.
Section 21. APPURTENANCE OF WATER RIGHT. The right to the
use of water, whether vested as provided in Section 7, supra, or ac-
quired after the effective date of this Act under the procedure pro-
vided herein, shall be appurtenant to the gross area of land to which the
right relates and shall pass as an appurtenance with the title to such
land; provided, that a Class B vested right or an appropriative right
may be reserved in express terms in any instrument by which title to
the land to which it is appurtenant is conveyed, or such water right may
be separately conveyed. If such a right is not mentioned specifically in
an instrument by which the land is conveyed, the burden is upon the one
who makes the conveyance to prove, by a clear preponderance of the evi-
dence, that the parties did not intend that the water right should pass with
title to the land.
Section 22. ASSIGNMENT OF WATER RIGHT. No assignment of a
right to the use of water evidence by a claim or license, apart from the
land to which the right is appurtenant, shall be binding except as between
the parties unless made and recorded in the manner provided by law for
instruments relating to the conveyance of title to real estate or any in-
terest therein, and unless a certified copy of such recorded instrument
shall be filed in the office of the Commission. Rights evidenced by permits
issued under the provisions of Section 16, supra, may be assigned with
the prior written approval of the Commission.
Section 23. ABANDONMENT OF WATER RIGHT. (a) A Class B vested







MICHIGAN PROPOSAL


water right provided for in Section 7, supra, or an appropriative water
right acquired under the provisions of this Act, shall cease upon the
abandonment of the right.
(b) The abandonment of any such water right shall be evidenced as
follows:
(1) Intent to abandon the use of water, whether expressly de-
clared or reasonably implied from the acts of the user,
accompanied by actual cessation of the use of the water;or
(2) A continuous failure, for a period of five years, to effect
a beneficial use of the water, in which event the intent to
abandon to the extent of such failure shall be conclusively
presumed; provided no intention to abandon shall be pre-
sumed either where the available water supply is inad-
equate to enable the holder of the right to exercise the
beneficial use of water contemplated thereunder, or, in
the case of irrigation, where due to climatic conditions
irrigation is unnecessary during the period of contin-
uous failure to effect use of the water.
(c) The abandonment of only a portion of a water right shall not im-
pair the validity of any portion not abandoned.
(d) The Commission, upon its own initiative if it has reason to be-
lieve that a water right has been abandoned, or upon the petition of an
interested person asserting circumstances reasonably indicating that a
water right has been abandoned, which petition shall be verified under
oath, may order the holder or claimant of the water right to show cause
why the right should not be declared to have been abandoned. Notice of
the time and place of the hearing shall be given by registered mail
(return receipt requested) to the holder or claimant of the right and to
the petitioner, if any. If at the conclusion of the hearing the Commis-
sion finds that the right has been abandoned, the Commission shall file
a petition in the Circuit Court of the county in which the point of diver-
sion or the greatest area of land to which the right relates is located, in
Chancery. The petition shall pray the Court to find and declare the water
right to have been abandoned, and shall name the holder or claimant of
the water right defendant. The filing of the petition and of a certified
transcript of the proceedings of the Commission shall have the effect of
the filing of a complaint in a civil action with respect to the title to
real property, and process shall be issued and proceedings taken in ac-
cordance with the procedure provided by law for such actions. The Court
shall have jurisdiction to hear the matter and to issue a decree based upon
its findings. Appeal may be taken to the Supreme Court as in other civil
cases. In the event the decree shall declare the water right of any part
thereof to have been abandoned, the Commission shall procure from the
clerk of the court a certified copy of such decree and shall enter the same
upon the record of such water right in its office. Provided, however, the







LAW OF WATER ALLOCATION


provisions of this subsection shall not limit the power of the Commis-
sion to cancel permits under the circumstances and procedure provided
in subsections (b) and (c) of Section 16, supra.
Section 24. CHANGE IN EXERCISE OF WATER RIGHT. The holder
of a claim or license may, in cases where public interest or outstanding
rights are not adversely affected thereby, be authorized by the Commis-
sion, upon petition of the holder, to --
(a) Change the point or points of diversion of the water; or
(b) Change the location of reservoirs or of works for the trans-
mission or distribution of the water; or
(c) Change the purpose for which the water is authorized to be
used; or
(d) Change, in whole or in part, the location of the gross area
within which the use of the water may be effected under the claim or
license.
Provided, that any such permanent change, which for the purpose of this
section shall be construed as a change for a period of more than one year,
shall not be authorized without a prior hearing, notice of which shall be
given at the cost of the petitioner to interested persons in such manner as
shall be prescribed in the rules and regulations of the Commission. In the
case of a proposed temporary change, which for the purpose of this sec-
tion shall be construed as a change for a period of one year or less, the
Commission at its discretion may hold a hearing before granting or deny-
ing the petition, the cost of giving notice to be paid by the petitioner. Any
change made in accordance with the provisions of this Section shall not, of
itself, affect the priority of the water right. In the case of a permanent
change in location of the gross area to which the right to the use of water
relates, the right shall cease to be appurtenant to the land from which the
change is made and shall become simultaneously appurtenant to the land to
which the change is made.
Section 25. ROTATION IN EXERCISE OF RIGHT. The users of water
under claims, permits, or licenses may rotate in the exercise of their
rights to the use of the water to which they are collectively entitled, so
long as the rights of others are not injuriously affected; provided that the
schedule of rotation shall be approved in advance by the Commission.
Section 26. LOCATION OF RESERVOIRS; USE OF NATURAL
CHANNEL. (a) Reservoirs for the storage of water for beneficial use
may be constructed either in the beds of natural stream channels or out-
side of such natural channels, and natural stream channels may be used for
the conveyance of water for beneficial use, with the approval and under the
supervision of the Commission.
(b) In giving its approval to the construction of a dam in any natural
stream channel for the purpose of storing or of diverting water under this
Act, and in supervising its operation, the Commission shall observe the
provisions of any existing law relating to the construction and operation of
such dams.







MICHIGAN PROPOSAL


(c) No such use of a natural channel may be made to the injury of
any other holder of a valid right to the use of the water flowing or stored
in such channel or to the injury of any owner of land contiguous to such
channel.
Section 27, ANNUAL REPORTS. The Commission may require the
holder of every claim, permit or license to make an annual report to the
Commission upon forms to be supplied by the Commission.
Section 28. JUDICIAL PROCEEDINGS TO ENFORCE ACT. (a) The
Commission shall have the right, and it is hereby made its duty, to file
suit against any person in any court of competent jurisdiction to compel,
by mandamus proceedings, compliance with the provisions of this Act, or
to prevent, by injunction proceedings, violations or threatened violations of
the provisions of this Act, or any order of the Commission made in carry-
ing out the provisions of this Act.
(b) Any person injured by any violation or threatened violation of
this Act (including, without limiting the foregoing, any use of water that
impairs a valid right of use of water) may institute a like proceeding to
enjoin such violation or threatened violation.
(c) In any suit authorized by subsections (a) and (b) of this Section,
it shall not be necessary for the plaintiff to allege or prove that there is
no available adequate remedy at law for such violation or threatened vio-
lation or failure to comply.
Section 29. VIOLATIONS OF ACT; PENALTIES. (a) Any duly ap-
pointed agent of the Commission shall have authority to enforce the pro-
visions of this Act and may make criminal complaint against any person
violating the same. After service of a written notice setting forth speci-
fically any violation of this Act, any person who shall fail to comply with
the order of the Commission shall be subject to the penalties of this Act.
(b) Any person who wilfully violates any provision of this Act, or
any regulation or order of the Commission made thereunder, shall be sub-
ject to a penalty of not less than $50.00 nor more than $500.00 per day for
each and every day of such violation, such penalty to be recovered in a
suit in the circuit court.
Section 30. PENALTY FOR DAMAGE TO WATER USE FACILITIES.
Any person who shall maliciously injure or destroy the water use facili-
ties of any other person shall be deemed guilty of a misdemeanor and,
upon conviction thereof, shall be fined in any sum not less then $50.00,
nor more than $5,000.00.
Section 31. FEES. The Commission is hereby empowered to prescribe
and collect fees for recording claims of vested water rights; examining
applications to appropriate water; issuing permits and licenses; recording
assignments of licenses; making copies of documents, maps, or drawings;
certifying to copies of documents, maps or drawings; authorizing changes
of point of diversion, location of water-use facilities, purpose of use of
water, or location of gross area to which a water right applies; and other
services rendered in carrying out the provisions of this Act. Such fees







62 LAW OF WATER ALLOCATION

when collected by the Commission shall be paid by it (accompanied by a
detailed statement) into the State General Fund.
Section 32. SEPARABILITY CLAUSE. If, for any reason, any section or
provision of this Act shall be held to be unconstitutional, it shall not affect
the remainder of this Act; but such remainder shall be permitted to stand
and the various provisions of this Act are hereby declared to be separable
for that purpose.
Section 33. REPEAL OF CONFLICTING LAWS. All laws and parts of
laws in conflict with this Act are hereby repealed.




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