Title: Model Water Use Act With Comments
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 Material Information
Title: Model Water Use Act With Comments
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Language: English
Publisher: University of Michigan
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collections - Model Water Use Act With Comments
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 13
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Full Text













MODEL WATER USE


WITH COMMENTS














Final Draft



















The Model Water Use Act with Comments has been prepared
at the Legislative Research Center, University of Michigan
Law School, by Dominic B. King, Theodore E. Lauer, and
Wilbert L. Ziegler, Legislative Analysts, under the super-
vision of William J. Pierce, Director.


1


ACT
















MODEL WATER USE ACT


INTRODUCTION*


The demand for water is growing constantly throughout the
United States. This seems to be brought about by an ever increas-
ing population and by expanding economic activities of many types.
Consumption of water per capital appears to be increasing as our
population grows.
Industry is migrating into the countryside and requires large
quantities of water for processing, for steam electric power, and
for the making of the many modern devices and appliances required
for our comforts. Agriculture is becoming more intensified through
irrigation, drainage, flood protection, and other conservation prac-
tices. Water to provide critical seasonal needs for crops and live-
stock is a prime factor to be considered in modern, large-scale
farming in the so-called humid east, as well as in the west. Water
seems to be a key factor now in all this burgeoning growth of our
nation.
But there are other facets of this many-sided water problem
which increasingly are coming to the front. One is the growing
need for and interest in fish, wildlife and recreational uses. No
longer do the American people in teeming towns and cities think of
recreation as something special. They now 16ok upon this as es-
sential to their physical and mental well being in an era character-
ized by too much haste. It is time to slow down, they say. And
how better to do this than with a fishing rod and a boat?
As the demand for water continually grows, the question of
availability of supply becomes increasingly important. In some
areas and states supplies are currently inadequate to meet local de-
mands, especially in the critical summer seasons. In other areas
supplies for present and future uses require careful management if
all needs are to be served wisely. In the west, shortage becomes

*Prepared by Joe C. Barrett, Chairman, Special Committee, on Model
Conservation and Water Resources Act, National Conference of Com-
missioners on Uniform State Laws. This draft of the Model Water Use
Act will be presented for the final approval of the National Conference
of Commissioners on Uniform State Laws during its annual meeting in
Los Angeles, August 18-23, 1958. Copies of the Model Act as endors-
ed by the Commissioners may be obtained upon request from that organ-
ization.








WATER RESOURCES


more pressing as industrial and municipal growth extends into estab-
lished agricultural areas. Today, the terms "water conservation"
and "watershed management" are frequently used by laymen and pro-
fessional people alike as indicating the need for wise management of
a resource that has wide community interest.
Professional leaders of many specialties have been coming to
grips with questions of water shortage for many years, regardless
of the reasons for lack of availability and in spite of the competitive
position of the various uses. Legislatures in western states, west-
ern Canada, and Puerto Rico have given years of study toward solu-
tion of their water shortage and distribution problems. However,
only recently has lack of availability of water supplies been consid-
ered as causing long-range problems for governmental units and pri-
vate enterprises in eastern states. The drouths of the 1950's have
been a prime factor in focusing attention upon water. As a result,
a number of state-sponsored research projects have been undertaken.
And these have been supplemented by, private research activities.
Generally, persons interested in the protection and beneficial
utilization of water resources have requested legislation in the water
field as a result of their studies. The demand has been for new
legislation in the area of water usage, modifying somewhat the pres-
ent doctrines governing rights to use water. In some states, stat-
utes have been adopted which are comprehensive in scope. In other
jurisdictions, through special committees, recommendations are
being formulated from time to time for consideration by legislative

It is within this framework of changing conditions that the Model
Water Use Act is being studied and considered. It is extremely im-
portant in considering how to use the proposed Act that we think of
water legislation as a process which changes constantly as condi-
tions and needs change. Thus, it is not intended as a final answer
but only a flexible starting point.
It is realized that legislation in itself does not create water at
any particular place. But legislation may facilitate the better dis-
tribution and availability of water when and where needed. Short-
ges due solely to insufficient rainfall are not cured by legislation.
But shortages which result from waste or misuse of water and land,
and the curtailing of economic development because of insecurity of
water rights can be relieved or eliminated. In other words, legis-
lation can help to correct man-made shortages and conflicts. How-
ever, a solution to the problems which have arisen in the area of
water use must sometimes represent a compromise between the
various competing proposals or projects.








AND THE LAW


In these circumstances, the following principles seem basic:
(1) Constitutional rights must be recognized and protected.
(2) Waste of water and inefficient use, or methods of use, must
be minimized or prohibited.
(3) Water resources must be utilized most beneficially, con-
sistent with practical considerations.
(4) Availability of a relatively dependable supply of water must
be sought to assure private and public users their continued eco-
nomic investments.
(5) Dependable supplies can best be assured when the soil,
watershed, and ground water basin are managed wisely for maxi-
mum yield and minimum damage.
(6) The administrative procedure adopted for management of
water resources and control of their utilization must be practicable
and workable, and directed to serving community needs.
The Model Water Use Act is designed for widespread study and
consideration by state governments in order to protect, conserve, /
fairly allocate for use, and, where necessary, reserve water re-
sources in the interest of the health and welfare of the people.
The Act covers all water resources of the state. All diver-
sions of water and uses being made at the passage of the Act are
recognized and protected. No use of water (except a use in con-
junction with facilities under construction at the effective date of
the Act) may be initiated after the passage of the Act, unless a per-
mit limited in duration is obtained from the Commission adminis-
tering the Act. In this manner, the uncertain future uses of ripari-
ans as well as of non-riparians are made subject to the Act.
To provide for the most beneficial use and development o e
water resources of a state or territory, several methods have been
employed in the statute. Uses of water, whether prior or subse-
quent to the passage of the Act, are subjected to the continuing
standard of wise beneficial use. Discontinuance of a use for a de-
termined period of time results in its ceasing to be legally recog-
nized, thereby permitting the water to be utilized by another. Dis-
tinction between riparian and non-riparian lands is not emphasized.
Thus waters not being employed beneficially by those adjacent to
the source may be used to benefit the public in another part of the
state.
In times of real scarcity of water, the available supply is ap-
Sportioned or rotated among all or some of the users according to
the criterion of most beneficial use. In the statute, integration of
the administration of all water resources in an area, both ground
Sand surface, is provided so as to assure the maximum beneficial
use of all the water which may be available.


I .








WATER RESOURCES


Although public interest demands that water be used most bene-
ficially, public welfare also demands that individual investments be
protected by providing security and stability of private interests. Be-
sides affording legal protection for existing investments, the statute
provides that all new uses of water initiated thereunder be permit-
ted a definite quantity of water for a determined period of time con-
sistent with economic feasibility. No subsequent use may be initi-
ated which will materially and substantially interfere with any exist-
ing permitted use. These provisions eliminate the uncertainty of
the' court applied test of reasonable use. They also secure invest-
s against depletion of water resources by unforeseen users.
This Model Act is intended to provide for a practicable new and
modern system of water law. The administration is placed in a
Commission instead of the courts. The two-party system of deter-
mining water use rights is eliminated. All due process safeguards
have been preserved. The agency is given broad powers to provide
for comprehensive development of the state's water resources with-
in the framework of beneficial use. Domestic uses are exempted
because the quantity of water consumed thereby is not sufficient to
justify control.
Statutes have been enacted in a few jurisdictions which apply
different techniques to solve the water resource problem. It is rec-
ognized that no one scheme represents the perfect solution to the
varied problems which face many legislatures. However, it is be-
lieved that this Model Act provides for the maximum development
and advancement of a state consistent with established principles of
law and equity. In a number of instances, alternate sections have
been drafted so that any state legislature may select the provision
which is most suitable from the standpoint of the general water situ-
ation and the existing customs and practices.
The proposed Act has more of an eastern flavor and its pri-
mary use may occur there. But some provisions can be considered
in western states, especially where full economic development is
becoming a pressing problem.
The National Conference of Commissioners on Uniform State
Laws gratefully acknowledges its indebtedness to hundreds of indi-
viduals aiding in the preparation of this draft. Primary responsi-
bility for the basic research -and drafting was undertaken by the Leg-
islative Research Center at The University of Michigan Law School
at Ann Arbor, William J. Pierce, Director, and Dominic B. King,
Theodore E. Lauer, and Wilbert L. Ziegler, Legislative Analysts.
These men were available to the Commissioners at all times for
consultation, and frequent conferences between them and the Draft-
ing Committee were held.








AND THE LAW 539

The Conservation Foundation, Harvard Law School, the Isaac
Walton League, the Mineral Law Section of the American Bar Asso-
ciation, the Soil Conservation Service, the Wild Life Service, and
various State and Federal Conservation and Health Departments were
extremely helpful with suggestions and criticism. Finally, an early
draft was the subject matter of a two-day conference at Ann Arbor
attended by 125 individuals having special qualifications and experi-
ence in various phases of water use. Among these were water en-
gineers, industrialists, lawyers, law teachers, and representatives
from farm organizations and local, state, and federal governmental
agencies.
It is the belief of the Drafting Committee that this draft repre-
sents a well considered and comprehensive approach to the regula-
tion of water use in the public interest. It is further believed that
this draft will serve as a useful model for legislative bodies in a
substantial number of states considering water use legislation.


---i















MODEL WATER USE ACT


[AN ACT concerning the conservation and regulation of the
water resources of the State by the creation of a water re-
sources commission, etc.]
[Be it enacted....

PART I GENERAL PROVISIONS


[SECTION 101. [Declaration of Policy. ] In view of the rapid
growth of population, agriculture, industry, and other economic ac-
tivities, the water resources of the State must be protected, con-
served, and controlled to assure their reasonable and beneficial use
in the interest of the people of the State. Therefore, it is declared
to be the policy of the State of that
(a) the development, utilization, and control of all water re-
sources shall be directed to make the maximum contribution to the
public benefit, and
(b) the State, in the exercise of its sovereign power, acting
through the Water Resources Commission established under this Act,
should control the development and use of the water resources of
the State so as to effectuate full utilization, conservation, and pro-
tection of the water resources of the State.
[The legislature hereby makes the following findings concerning
the development, utilization, and control of the water resources of
the State:
(a) The development, utilization, and control of the water re-
sources of the State are vital to the people in order to assure ade-
quate supplies for domestic, industrial, power, agricultural, and
other beneficial uses.
(b) The development and utilization of water resources must be
regulated to assure that the water resources of the State are em-
ployed for beneficial uses and not wasted.
(c) The regulation of the development and utilization of the water
resources of the State is essential to protect beneficial uses and to
assure adequate supplies for beneficial users.
(d) The water resources of the State must be protected and con-
served to assure adequate supplies for public recreational purposes
and for the conservation of wildlife and aquatic life.








WATER RESOURCES


(e) The water resources of the State must be protected from
pollution in the interest of the health and safety of the public.
(f) The water resources of the State can best be utilized, con-
served, and protected if utilization thereof is restricted to benefi-
cial uses and controlled by a state agency responsible for proper
development and utilization of the water resources of the State.
(g) Planning for the development and utilization of water re-
sources is essential in view of population growth and the expanding
economic activity within the State. ]
It is the purpose of this Act to effectuate these policies by pro-
viding for:
(a) A program for the control of the utilization of the water re-
sources of the State so directed as to make the maximum contribu-
tion to the interests of the people of this State;
(b) A program for the control of pollution of the water resource!
of the State to protect the public health, safety, and welfare;
(c) A program for the protection and conservation of the water
resources of the State, for public recreational purposes, and for
the conservation of wildlife and aquatic life;
(d) A program of conducting and fostering research and develop-
ment in order to encourage maximum utilization of the water re-
sources of the State; and
(e) A program for cooperating with federal, interstate, state,
and local governmental agencies in the development and utilization
of water resources. ]
Comment

This general purpose section has a threefold aim:
(1) to establish a general legislative policy; (2) to declare the
public interest in the water resources of the state and to in-
dicate the desirability and necessity of regulation under the
state police power; and (3) to establish standards for agency
action.
Among the general standards for agency action are policy
declarations that water must not be wasted; water must be
used for beneficial purposes; adequate water supplies for bene-
ficial users must be preserved; conservation of water for re-
creational and wildlife purposes is desired; unreasonable pol-
lution must be avoided; and water must be utilized so as to
make the maximum contribution to the public interest.
For comparable statutory provisions see: Ariz. Rev.
Stat. 45-101; Cal. Water Code Ann. 100; Del. S.B. No. 98
(1957) 4302 (Bill has passed the Senate only to date); Iowa
Code Ann. 455A.2 as amended by Iowa Laws 1957, c.229, 2;
Md. Code Ann. 1957, Art, 66C, 718; Miss. Code Ann.
5956-01; Ore. Rev. Stat. 536.220; S.D. Laws 1955, c.430,
1 (61.0101).








AND THE LAW


SECTION 102. [Definitions. ] In this Act, unless the context
otherwise requires:
(a) "Beneficial use" means a use of water, including the method
of diversion, storage, transportation, and application, that is rea-
sonable and consistent with the public interest in the proper utiliza-
tion of water resources, including, but not limited to, domestic,
agricultural, industrial, power, municipal, navigational, fish and
wildlife, and recreational uses.

Comment

This definition establishes the basic standard governing
the use of the water resources of the state. All uses of
water which are in accord with the public interest in the
proper utilization of the water resources are included within
the concept. Although the term "beneficial use" is frequently
used in water statutes, it usually is not defined, but from the
context in which it is used in other statutes, the term is gen-
erally consonant with this definition. E.g., Ariz. Rev. Stat.
45-101B; Cal. Water Code Ann. 100,101; Kan. Gen. Stat.
82a-701, 82a-703, 82a-704, 82a-706, 82a-707, (1957 Supp.);
Neb. Rev. Stat. 1943, 46-229, 46-229.02; Nev. Rev. Stat.
533.035; Ore. Rev. Stat. S536.220(b), 536.310(2). Cf. Minn.
Stat. Ann. 105.39 sub. 1. It is apparent from this lack of
defining "beneficial use" that the term is a word of art in
water law. See Wiel, Water Rights in the Western States,
377-378 (3d ed. 1911).
Iowa and Mississippi define "beneficial use" to include
application of water for beneficial purposes inuring to the
benefit of the user but not including waste'or pollution. See
Iowa Code Ann. 455A. 1 as amended by Iowa Laws 1957, c.
229,,,$1; Miss. Code Ann. 5956-01(e).

(b) "Commission" means the Water Resources
Commission.
(c) "Contained water" means underground streams, water upon
the surface of the earth in bounds created naturally or artificially,
and the subflow of such water, including, but not limited to, rivers,
creeks, canals, streams, lakes, and reservoirs.

Comment

For purposes of this statute three classifications of water
resources are made: contained water, diffused surface water,
and ground water. The term "contained water" includes sur-
face and underground streams, and their subflow, which are
contained in artificial or natural bounds and so encompass the
type of waters to which riparian rights normally apply.


1








WATER RESOURCES


(d) "Convey" includes deed, grant, bequeath, devise, or trans-
fer by any legal means.

Comment

This definition is meant to be all inclusive covering all
legal means of transfer. Cf. Restatement of Property
11-13 (1936).

(e) "Diffused surface water" means water occurring generally
upon the surface of the earth, other than contained water.

Comment

This definition classifies all surface water, other than
"contained water," as "diffused surface water" to be regulated
under Section 402. Cf. Iowa Laws 1957, c. 229, 1.

(f) "Domestic use" means any use of water for personal need
and for household purposes, including: (1) uses for drinking, bath-
ing, cooking, and sanitation; (2) uses for maintaining household pets
and livestock kept for household sustenance; and (3) uses for heat-
ing and cooling private residences and for maintaining non-commer-
cial lawns, gardens, or orchards.

Comment

"Domestic use" of water is exempt from regulation
except during shortages and emergencies as provided in Part
V. Since the use of water for the natural needs of man is
of the highest priority and since these uses are relatively in-
significant quantity-wise, the definition of "domestic use" is
restricted to the related needs of man. No commercial uses
of water are considered equal with domestic needs, and con-
sequently commercial cattle raising and irrigation are not
included within this definition. The term does not include
public water supplies.
For somewhat similar treatment of domestic use see
the following statutory provisions: Del. S. B. No. 98 (1957)
4301 (Bill has passed the Senate only to date); Kan. Gen.
Stat. 82a-701(c) (1957 Supp.); Miss. Code Ann. 5956-01(c);
S.D. Laws 1955, c. 430, 1 (61.0102).
Although some states do not define "domestic use," the
manner in which the term is used in these water statutes is
closely related to this definition. Cf. Ariz. Rev. Stat.
45-141, 45-147; Iowa Code Ann. 455A.1 as amended by Iowa
Laws 1957 c. 229, 1; Minn. Stat. Ann. (1956 Supp.)
104.41; Neb. Rev. Stat. 1943, 46-201, 46-204; Tex. Civ.
Stat. Ann. Art. 7471; see discussion in Wiel, Water Rights
in the Western States, 741-744 (3d ed. 1911).








AND THE LAW


(g) "Emergency" means a shortage of contained water, ground
water, or both which threatens the public health, safety, and wel-
fare within any area of the State.

Comment

"Emergency" is defined in terms of shortage (insuffi-
cient contained or ground water to supply lawful users; see:
Section 102(o)) and a threat to public health and safety. This
latter requirement is not part of the concept of "shortage."
In this statute that distinction is important because under
Part V different powers are given to the Commission under
"shortage" conditions than under "emergency" conditions, and
before the powers under an "emergency" can be exercised, it
is a prerequisite that the Commission find that the "shortage"
powers are inadequate to protect the public health, safety,
and welfare. Cf. Ariz. Rev. Stat. 45-101 et seq; Cal.
Water Code Ann. 350.

(h) "General permit" means a permit granted by rule or regula-
tion of the Commission for which the holder need not file an appli-
cation.

Comment

Provision for a 'general permit" will enable the Com-
mission to provide permits to users of water without the
necessity of the potential user making application for a permit.
Where the circumstances warrant such action, this will relieve
the Commission of being burdened with the paper work and
administrative detail involved in applications for permits.
Normally it is anticipated that this type of permit would be
used in areas where particular types of water use can be
permitted under general authority because the supplies are
sufficient for the particular types of use. For comparable
statutory provisions see: Atomic Energy Act of 1954, 68
Stat. 919, 53b, 63b.

(i) "Ground water" means any water occurring beneath the sur-
face of the earth other than subflow and underground streams.

Comment

This definition classifies all waters beneath the surface
of the earth, other than subflow and underground streams, as
"ground water." For the definitions of "contained water,"
"diffused surface water," and "underground streams" see
Sections 102 (c), (e), and (r).
For comparable statutory provisions see: Ariz. Rev.
Stat. 45-301; Cal., Water Code Ann. 1005.1; Del. S.B. No.
98 (1957) 4301 (Bill has passed the Senate only to date);


I








WATER RESOURCES


Iowa Code Ann. 1455A.1 as amended by Iowa Laws 1957, c.
229, 81; Ore. Rev. Stat. 537.515(2) (3). Cf. Kan. Gen. Stat.
182a-707 (1957 Supp.).

(j) "Local governmental agency" means any political subdivision
of this State, including any county, city, town, village, [authority]
[water district] [conservation district] [improvement district]
[levee district] [township], or [any] other political subdivision ex-
ercisihg powers which may affect the water resources of the State.
(k) "Person" means any individual, partnership, association,
joint-stock company, public or private corporation, government,
political subdivision of a government, state governmental agency, or
local governmental agency.

Comment
This is intended to be inclusive of all legal entities. For
comparable statutory provisions see: Ariz. Rev. Stat. 45-301
sub. 12; Ark. Stat. Ann. 47-801; Cal. Water Code Ann. 401(b);
Iowa Code Ann. 455A.1; Kan. Gen. State. 82a-701(a) (1957
Supp.); Mich. Stat. Ann. 83.531, 3.534(1)(d); Nev. Rev. Stat.
533. 010; N.Y. Public Health Law 1202(a); Ohio Rev. Stat. Ann.
6111.01(I); Federal Administrative Procedure Act, 5 U.S.C.A.
1001(b).

(1) "Pollution" means any alteration of the physical, chemical,
or biological properties of the waters of this State, including change
of the temperature, taste, or odor of the waters, or the addition of
any liquid, solid, radioactive, gaseous, or other substances to the
waters or the removal of such substances from the waters, which
will render or is likely to render the waters harmful to the public
health, safety, or welfare, or harmful or [substantially] less useful
for domestic, municipal, 'industrial, agricultural,, recreational, or
other lawful uses, or for animals, birds, or aquatic life.

Comment
In a strict sense almost any use of water results in
some contamination of the water. This definition of "pollu-
tion" is divided into two parts: (1) any alteration of the
water making or tending to make the water harmful to public
health, safety, or welfare and (2) any alteration of the water
making it harmful or [substantially] less useful for any lawful
use. "Substantial" is bracketed so that it might be used to
eliminate from the concept of' "pollution" contamination of the
water which interferes only in a minimal way with other lawful
uses. If it is felt that any contamination of the water making
it less useful to other lawful uses ought to be regulated as


546









AND THE LAW 547

pollution, then the word "substantial" can, be eliminated from
the definition.
For comparable statutory provisions see: Ark. Stat.
Ann. 47-802 sub. 5; Md. Code Ann. 1957 Art. 66C, 34;
Ohio Rev. Code Ann. 6111.01(A); Ore. Rev. Stat. 537.515(4);
35 Pa. Stat. 691.1. Cf. Mich. Stat. Ann. 3.526; N.Y.
Public Health Law 1202 (d) (e) (f) (g); S.D. Laws 1955, c. 430,
1 (61.0145 to 61.0147).

(m) "Preserved use" means a use preserved under Section
303(a).
Comment

Somewhat comparable statutory provisions tend to speak
of "vested rights" rather than "preserved uses." Since bene-
ficial use is the all inclusive standard, the term "preserved
use" seems preferable. Cf. Ariz. Rev. Stat. 45-171; Kan.
Gen. Stat. 82a-701(d) (1957 Supp.); N. M. Stat. Ann. 75-5-29;
Ore. Rev. Stat. 537.120, 537.250, 540.610; S.D. Laws
1955, c.430, 1 (61.0102(7)); Tex. Civ. Stat. Ann. Art. 7470b.

(n) "Shortage" means the absence of a sufficient quantity of con-
tained water, ground water, or both to supply lawful uses of water.

Comment

The definition of "shortage" must be correlated with
that of "emergency" since the "emergency" is defined in
terms of "shortage" and since the two concepts interact in
application under Part V. See the definition of "emergency"
in Section 102(g) and the comment thereunder. Also see
Part V and comments thereunder for application of "shortage."
and "emergency" in context. Cf. Ariz. Rev. Stat. 45-175;
45-308, 45-318; Neb. Rev. Stat. 1943, 46-204; Ore. Rev.
Stat. 537.730, 537.735.

(o) "Specific permit" means a permit issued upon application of
person in accordance with the provisions of this Act.

Comment

Under this Act the permit system is the general means
of effecting the regulation of the water resources. This defini-
tion of "specific permit" requires application by a water user
as a prerequisite to issuance of the permit. This is in con-
tradistinction to "general permit" where no application is re-
quired. See Section 102(h) for "general permit."
Requiring permits for water use is the common method
of regulation in numerous states. See comparable type statu-
tory provisions: Ariz. Rev. Stat. 45-301 sub. 11, 45-313,








548 WATER RESOURCES

45-314, 45-316, 45-142 to 45-145; Cal. Water Code Ann.
1252, 1260, 1375; Iowa Code Ann. 455A.1 as amended by
Iowa Laws 1957 c.229, 1;Kan. Gen. Stat. 82a-705, 82a-
707 to 82a-709 (1957 Supp.); Md. Code Ann. 1957, Art. 66C,
721-725; Minn. Stat. Ann. (1956 Supp.) 105.44; Miss.
Code Ann. 5956-16; Neb. Rev. Stat. 1943, 46-233; Ore.
Rev. Stat. 537.130, 537.140; S.D. Laws 1955,c.430, 1
(61.0110). Cf. Atomic Energy Act of 1954, 68 Stat. 919,
53b, 63b.

(p) "State governmental agency" means any executive department,
commission, independent establishment, or instrumentality of this
State, but does not include any local governmental agency.

Comment

See Model State Administrative Procedure Act 1(1);
Federal Administrative Procedure Act, 5 U.S.C.A. 1001(a).

(q) "Time. of taking" means, in view of the nature, manner, and
purpose of a beneficial use of water, the most accurate method of
describing the time when the water is taken, including description
in terms of hours, days, weeks, months, or physical, operational,
or other conditions.

Comment

This definition provides that in determining the time
that the water is taken, the most accurate method of
describing that taking is to be made in relation to the nature,
manner, and purpose of the particular use. Cf. Ariz. Rev.
Stat. 45-141; Kan. Gen. Stat. 82a-707 (1957 Supp.)

(r) "Underground stream" means water flowing in an ascertain-
able course and defined channel beneath the surface of the earth.


Comment

"Underground stream" is included within the definition
of "contained water" [ see Section 102 (c)] since riparian
rights normally apply to underground streams. Cf. Ariz:,
Rev. Stat. 45-301 sub. 4; Cal. Water Code Ann. 1200;
N.M. Stat. Ann. 75-11-1; Ore. Rev. Stat. 537.515(3).
See discussion of underground streams in 3 Farnham, Waters
and Water Rights, 94 (1904); Wiel, Water Rights in the
Western States, 1077 (3d ed. 1911).








AND THE LAW


(s) "Water resources" means all waters upon or beneath the
surface of the earth, including contained waters, diffused surface
waters, and ground waters, either naturally or artificially main-
tained.
Comment

This definition is intended to include all water resources
of the state except atmospheric water. For other similar
statutory provisions see: Iowa Code Ann. 455A.1, 455A.2,
as amended by Iowa Laws 1957, c.229, 1 and 2; N.Y. Public
Health Law 1202(b); Ohio Rev. Code Ann. 6111.01(H). Cf.
Ark. Stat. Ann. 47-801; Md. Code Ann. 1957, Art. 66C, 34;
Mich. Stat. Ann. 3.531.

(t) "Well" means an artificial excavation into which water per-
colates, flows, or seeps from the interstices of the rocks or soil
which it penetrates.

Comment

See Ariz. Rev. Stat. 45-301 sub. 14; Del. S.B. No. 98
(1957) 4301 (Bill has passed the Senate only to date); Md.
,Code Ann. 1957, Art. 66C, 700A; Ore. Rev. Stat.
537.515(6).

SECTION 103. [General Regulation of Water Resources. ] All
water resources of the State are subject to regulation under the pro-
visions of this Act. After the effective date of this Act, no person
shall make any use of the water resources of the State except in
compliance with the provisions of this Act, and no right, title, or
interest in the use of any of the water resources of this State can
be acquired by means of prescription [adverse possession].

Comment

This general provision makes all water resources of the
state subject to regulation under the Act and prohibits any
person making use of such water except in compliance with
the Act. But cf. Sections 301 and 401 exempting domestic
uses. Consistent with this theory no prescriptive rights can
be acquired after the date of this Act. The specific regula-
tory measures are contained in subsequent parts of the Act.
For other comparable statutory provisions see: Del.
S.B. No. 98 (1957) 4318 (Bill has passed the Senate only
to date); Kan. Gen. Stat. 82a-702, 82a-703, 82a-705, 82a-
707 (1957 Supp.); Md. Code Ann. 1957, Art. 66C, 718, 720;


I








WATER RESOURCES


Minn. Stat. Ann. (1956 Supp.) 105.41; Miss. Code Ann.
5956-04(a); Nev. Rev. Stat. 533.030, 533.060; N.M. Stat.
Ann. 75-5-1; Ore. Rev. Stat. 0537.120, 537.130. Cf.
Ariz. Rev. Stat. 45-102, 45-142, 45-143, 45-313; Cal. Water
Code Ann. 1225; Neb. Rev. Stat. 1943, 46-233; S.D. Laws
1955,c.430, 1 (61.01101); Utah Code Ann. 73-3-1.


PART II WATER RESOURCES COMMISSION


SECTION 201. [Water Resources Commission. ]
Alternate 1
[(a) There is hereby created the Water Re-
sources Commission composed of five members. The Governor
shall appoint one member as chairman. The chairman may desig,
nate from time to time any other member as acting chairman to
serve during his absence. The chairman shall preside at all meet-
ings of the Commission. A quorum for the transaction of business
shall consist of at least three members. The Commission shall
have an official seal which shall be judicially noticed.
(b) Members of the Commission shall be appointed by the Gov-
ernor, by and with the advice and consent of the Senate. The term
of office of each member shall be five years, except that (1) the
terms of office of the members first appointed shall expire, as desig-
nated by the Governor, one at the end of one year, one at the end
of two years, one at the end of three years, one at the end of four
years, and one at the end of five years, and (2) any member ap-
pointed to fill a vacancy, occurring prior to the expiration of the
term for which his predecessor was appointed, shall be appointed
for the remainder of that term. Each member shall receive com-
pensation at the rate of $ per annum. ]
Alternate 2
[(a) There is hereby created the Water Re-
sources Commission which shall be composed of five members ap-
pointed by the Governor subject to the confirmation of the Senate.
(b) The members shall be selected and approved for appoint-
ment on the basis of their general education and business qualifica-
tions and their experience with problems relating to the control, use,
and pollution of water. They shall be appointed in such a manner
as to afford representation to all parts of the State and to all fields
of water use and pollution so far as it is practicable.








AND THE LAW 551

(c) The term of office of each member shall be five years ex-
cept that (1) the terms of office of the members first appointed
shall expire,. as designated by the Governor, one at the end of one
year, one at the end of two years, one at the end of three years,
one at the end of four years, and one at the end of five years, and
(2) any member appointed to fill a vacancy, occurring prior to the
expiration of the term for which his predecessor was appointed,
shall be appointed for the remainder of that term.
(d) Each member of the Commission shall receive $
for each day during which he is engaged in the performance of his
official duties. In addition to his compensation each member shall
be reimbursed for his necessary traveling and other expenses in-
curred in the performance of his official duties.
(e) The State Engineer shall serve as engineer to the Commis-
sion without additional compensation. ]
Alternate 3
[(a) There is hereby created the Water Re-
sources Commission composed of the Director of the Department of
[Health], the Director of the Department of [Conservation], the
[State Engineer], [ ], and [ ] who shall serve
without additional compensation.
(b) The Governor, subject to the confirmation of the Senate,
shall appoint a Water Administrator who shall serve for a term of
Years at a salary of $ per year. The Adminis-
trator shall be qualified by training and experience in matters of
water development, control, and use.
(c) The Commission by rule or regulation may delegate to the
Water Administrator any of the powers, duties, and discretion
granted to the Commission under the provisions of this Act. ]

Comment

This section provides for the creation of a water re-
sources commission, the agency which is charged with admin-
istering this Act. Each of these alternate provisions, either
individually or in appropriate combination, may serve as a
guide to the state in establishing this regulatory commission.
Of course, a state may choose to create a commission along
even different lines but these alternates will provide helpful
examples.
For statutory provisions somewhat analogous to Alternate
1 see: Ariz. Rev. Stat. 45-131; Ark. Stat. Ann. 47-803;
Del. S.B. No. 98 (1957) 4310 (Bill has passed the Senate only
to date); Iowa Code Ann. 455A.3, 455A.4, as amended by
Iowa Laws 1957, c.229, 3,4.


1








WATER RESOURCES


For statutory provisions somewhat analogous to Alternate
2 see: Md. Ann. Code 1957, Art. 66C, 15; Minn. Stat. Ann.
(1956 Supp.) 105.71; Miss. Code Ann. 5956-08; Ore. Rev.
Stat. 536.230; S.C. Code 70-103 to 70-104; S.D. Laws
1955,c.430, 1 (61.0103).
For statutory provisions somewhat analogous to Alternate
3 see: Mich. Stat. Ann. 3.521. The Arkansas provision,
Ark. Stat. Ann. 47-803, has features somewhat resembling
all three alternates of Section 201.

SECTION 202. [General Powers. ] To effectuate the provisions
of this Act, the Commission is authorized:
(1) to develop comprehensive plans for the utilization, conserva-
tion, development, improvement, and regulation of the water re-
sources of this State [and for the elimination of pollution in such
waters];
(2) to conduct, authorize, cooperate, or contract for the con-
ducting of scientific investigations, experiments, and research and
to collect data concerning the water resources of the State [and
their pollution];
Alternate 1
(3) to enter upon any land to conduct investigations and studies
and to inspect water resources and their use [and pollution];
Alternate 2
(3) to enter at all reasonable times upon any land without doing
damage, for the purpose of conducting investigations and studies and
inspecting water resources and their use [and pollution];
(4) to establish advisory boards to advise and make recommen-
dations to the Commission on research, policies, administration,
and other matters;
(5) to appoint [and fix the compensation of] any officers and
employees necessary to carry out the functions of the Commission;
(6) to issue rules, regulations, or orders requiring the filing of
plans, drawings, specifications, information, or reports regarding
any aspect of water use, [pollution], diversion, or acquisition by
all water users regardless of whether the user is required to have
a permit under this Act;
(7) to establish rules and regulations concerning notices, hear-
ings, and proceedings under this Act, not inconsistent with the pro-
visions of this Act;
(8) to seek enforcement in the courts of the provisions of this
Act or of any rule, regulation, or order of the Commission;








AND THE LAW 553

(9) to consult and advise all users of water resources and per-
mit applicants as to the availability of water resources and the most
practicable methods of water diversion, [purification], development,
conservation, and utilization, [and to approve appropriate means for
the control and abatement of pollution, including any certification
required by federal law];
(10) to submit state plans to and cooperate with federal officers
and agencies in the conservation, development, and regulation of
water resources, [and in the elimination of pollution and contamina-
tion], and to accept any federal grants or moneys, or public or
private gifts, grants, or moneys;
(11) to act for the State, as directed by the Governor, in all as-
pects of the development and control of water resources involving
federal, interstate, and international interests;
(12) to utilize the services or personnel of any state or local
governmental agency, with its consent; and
(13) [to delegate to any officer or employee of the Commission
or to any state governmental agency any function assigned to the
Commission under this Act].

Comment

This section enumerates thirteen general powers given
to the Commission so that it might properly administer this
Act. The totality of these powers form a reasonable frame-
work for the Commission to accomplish the task of accumulat-
ing basic information and planning properly for the state. In
order to expedite these objectives the Commission has the
power to sqek enforcement in the courts of any provisions of
the Act (subdivision 7).
For comparable statutory provisions as to paragraph 1
see: Ariz. Rev. Stat. 45-132, 45-133; Ark. Stat. Ann.
47-804 sub. 6; Cal. Water Code Ann. 105; Md. Code Ann.
1957, Art. 66C, 719; Minn. Stat. Ann. (1956 Supp.) 105.39
sub. 1; Ore. Rev. Stat. 536.300, 536.310.
As to paragraph 2 see: Ariz. Rev. Stat. 45-132,
45-133; Ark. Stat. Ann. 47-804 sub. 3; Cal. Water Code
Ann. 225; Del. S.B. No. 98 (1957) 4314(b) (Bill has passed
the Senate only to date); Iowa Code Ann. 455A. 18 as amended
by Iowa Laws 1957, c.229, 8; Mich. Stat. Ann. 3.522; Minn.
Stat. Ann. (1956 Supp.) 105.39 sub. 2; Miss. Code Ann.
5956-12, 5956-13; Ore. Rev. Stat. 536.440.
As to paragraph 3 see: Ariz. Rev. Stat. 45-302C;
Ark. Stat. Ann. 47-805 sub. 3; Del. S.B. No. 98 (1957)
4314(b) (Bill has passed the Senate only to date); Mich. Stat.
Ann. 3.524; Miss. Code Ann. 5956-22. These statutory
provisions resemble Alternate 2 of paragraph 3 more than
Alternate 1.








WATER RESOURCES


The Act in paragraph 4 merely permits the Commission
to set up advisory local boards but some states may wish to
make the establishment of local boards mandatory on the
Commission to assure local cooperation and interest.
As to paragraph 5 see: Ark. Stat. Ann. 47-801C; Del.
S.B. No. 98 (1957) 4310(e) (Bill has passed the Senate only
to date); Miss. Code Ann. 5956-10; Nev. Rev. Stat. 532.090;
Ore. Rev. Stat. 536.290; 71 Pa. Stat. 73.
As to paragraph 6 see: Ark. Stat. Ann. 47-805; Del.
p S.B. No, 98 (1957) 4314(b) (Bill has passed the Senate only
to date).
As to paragraph 7 see: Ariz. Rev. Stat. 45-302B.1;
Ark. Stat. Ann. 47-806; Iowa Code Ann. 455A.19 as amended
by Iowa Laws 1957, c.229, 9; Md. Code Ann. 1957, Art. 66C,
728; Nev. Rev. Stat. 532.120.
As to paragraph 8 see: Ark. Stat. Ann. 47-801G; Cal.
Water Code Ann. 275; Del. S.B. No. 98 (1957) 4317; Mich.
Stat. Ann. 3.523; Ore. Rev. Stat. 536.400.
As to paragraph 9 see: Minn. Stat. Ann. (1956 Supp.)
105.40 sub. 14, 105.49; Ore. Rev. Stat. 536.460, 536.480.
As to paragraph 10 see: Ariz. Rev. Stat. 45-302B.4;
Ark. Stat. Ann. 47-807; Mich. Stat. Ann. 3.522(1); Minn.
Stat. Ann. (1956 Supp.) 105.40 sub. 14, 105.49; Miss. Code
Ann. 5956-01(a); Nev. Rev. Stat. 532.170, 532.180.
As to paragraph 11 see comment under Section 206.
As to paragraph 12 see: Ark. Stat. Ann. 47-802(e);
Del. S.B. No. 98 (1957) 4313 (Bill has passed the Senate only
to date); Iowa Code Ann. 455A.14;Md. Code Ann. 1957, Art.
66C, 719; Mich. Stat. Ann. 3.524; Minn. Stat. Ann. (1956
Supp.) 105.71 sub. 2; Ore. Rev. Stat. 536.520.
As to paragraph 13 see: Nev. Rev. Stat. 533.015;
Ore. Rev. Stat. 536.510; 71 Pa. Stat. 73.
It is quite common for statutory provisions to enumerate
powers for commissions which resemble the thirteen powers
of this section. For general statutory provisions: Cf. Cal.
Water Code Ann. 226.231; Neb. Rev. Stat. 1943, 46-209;
S.C. Code 70-110; S.D. Laws 1955, c.430, 1(61.0104).

SECTION 203. [Rules and Regulations. ]
(a) The Commission may make, amend, and rescind any rules,
regulations, forms, and orders necessary to carry out the provi-
sions of this Act, including rules and forms governing applications
and reports and defining any terms used in this Act insofar as the
definitions are not inconsistent with the provisions of this Act.





I!


AD THE LAW 555

(b) For purposes of rules, regulations, forms and orders, the
Commission may classify persons and matters within its jurisdiction
and prescribe different requirements for different classes.


; *. Comment .

Subsection (a) is a common type provision implementing
S agency power with authority to fill in operational details where
S the legislation sets out the general pattern. Such implemen-'
tation by'the agency is to aid both the water users coming
S before the agency and tbe agency itself in functioning efficiently.
Subsection -f makes explicit the authority 6f'the agency
S to make reasonable classifications to better effectuate the pur-
pes a o the statute. This affords greater flexibility for the
ageBny to meet divergent circumstances existing within the
state.
For comparable statutory provisi ns see:, Ari., Rev.
Stat ,;4S-302; Ark. Stat. Ann-. 47-804 sub, 10; Cal. Water
SCode Ann. 1058; Md. Code Ann. 1957, Art. ,6C, 1728;
Mich. Stat. Ann. 13.522; Nev. Bev. Stat. I532.120; Ore. Rev.
Stat. 1534.550; 32 Pa. Stat. 1597; 71 Pa. Stat. 6186; S.C.
Code 170-108; S.D. Laws 1955, c, 430, i1.(61.0103).

[SECTION 204. [ Comprehensive Planning. ] The Commispion
shall formulate comprehensive plans for the most beneficial use of
the water resources of the State. ]

Comment

This optional Section imposes the duty on the agency to
Adopt a broad over-all plan respecting the water resources
,of the state to effectuate the most beneficial use of the waters.
S 'A, plan of comprehensiveness would afford guidance and direc-
Stion to agency action, assist in, court review and provide stand-
Sards of conduct by which water users and applicants could
operate. Because of the difficulties such a task imposes upon
S an agency, the section is optional for states which would not -.
wish to burden an agency with this responsibility.
"i Other somewhat comparable provisions are: Ariz. Rev,.;
Stat. 45-132; Ark. Stat. Ann. 47-804 sub. 5; Cal. Water
SCode Ann. 1105; Iowa Code Ann. 88455A. 17, 455A.18 as
amended by Iowa Laws 1957, c.229, g7; 8; Md.-Code Ann.
'1957, Art. 66C, .719; Minn. Stat. Ann. (1956 Supp.) 105.39.
sub. 1; Ore.'Rev. Stat. H8536.300, 536.310, 536.430; S.C,
"Code 70-110(11). Cf., S.D. Laws 1955,c.430, 1 (61.0101(4)).

.


. I








556 WATER RESOURCES

[SECTION 205. [Action of Other Government Agencies and
Municipalities. I
(a) No state or local governmental agency may enforce any or-
dinance, rule, or regulation that affects the use of water resources
controlled under the provisions of this Act, whether promulgated be-
fore or after the effective date of this Act, unless the Commission
has approved the ordinance, rule, or regulation.
(b) No state or local governmental agency or other person hav-
ing the power of eminent domain or condemnation may exercise that
power in respect to the taking of any rights to water resources with-
in the State unless written consent is obtained from the Commis-
sion. ]

Comment
In order to obtain a unified and comprehensive system
of water regulation, Section 205 is suggested. Subsection (a)
requires all other governmental instrumentalities dealing with
water resources to obtain Commission approval of all pertinent
rules, regulations, or ordinances. This serves to prevent
divergent policies and standards obtaining at the several gov-
ernmental levels.
Subsection (b) carries out this theory of unified state
policy and administration by permitting the Commission to
control the power of eminent domain with respect to the
obtaining of water resources. Since some states might not
desire to vest this overriding authority in any one agency, the
entire section is optional and so bracketed.
For somewhat comparable provisions see: Md. Code Ann.
1957, Art. 66C, 719; Minn. Stat. Ann. (1956 Supp.) 105.40
sub. 10, 105.41, 105.42; Neb. Rev. Stat. 1943, 46-211,
46-233; Ore. Rev. Stat. 536.360; S.D. Laws 1955, c.430,
1 (61.0104).

[SECTION 206. [Federal and Interstate Agreements.]
(a) Whenever the federal government, in undertaking any federal
plan or project within the State connected with or concerning the
water resources of the State provides that local cooperation shall be
furnished as a condition to that plan or project or provides that
such plan or project shall be subject to the approval of the State,
the Commission shall act as the coordinating agency for such co-
operation and shall have the power to approve or disapprove the
federal plan or project in the name of the State.
(b) Whenever the Governor or Legislature provides for the ne-
gotiation or consummation of any agreement or compact with any








AND THE LAW


other state or states connected with or concerning the water re-
sources of the State, the Commission shall act in behalf of the
State for the negotiation and consummation of the agreement or com-
pact. ]

Comment

Subsection (a) designates the Commission as the official
agency to deal with the federal government on all matters
pertaining to state water resources.
Subsection (b) designates the Commission as the' official
agency to negotiate and formulate all interstate water compacts
which may be concluded by the state.
This section accords with the concept of having a unified
water administration by one agency with a single purpose of
-state water administration (Section 205), federal cooperation
(Section 206(a)), and interstate cooperation and administration
(Section 206(b)). The entire section is optional for those
states which prefer not to place all of these responsibilities
in one agency.
For comparable provisions see: Ariz. Rev. Stat.
45-132, 45-506; Ark. Stat. Ann. 47-807; Del. S. B. No.
98 (1957) 4315 (Bill has passed the Senate only to date);
Mich. Stat. Ann. 3.522(1); Minn. Stat. Ann. (1956 Supp.)
105.49; Miss. Code Ann. 5956-21; Ore. Rev: Stat. 536.420;
S.C. Code 70-110(9).


[SECTION 207. [Control of Stream Flow.] The Commission
is empowered to regulate by rules or orders the course, current,
or cross-section of any contained surface water within the State in
order to obtain the most beneficial use of the water, but such rules
and orders shall not substantially and materially interfere with pre-
served uses, domestic uses, or uses authorized by permits issued
by the Commission. ]

Comment

This optional section affords the Commission power to
control and maintain proper stream flow, lake level and the
like subject to the restriction that such action not substantially
and materially interfere with uses authorized under this Act.
It is felt that this power is a wise complement to other con-
trols of water use in order that the Commission might have
adequate authority to regulate properly the water resources of
the State.








WATER RESOURCES


Other similar provisions are: Cal. Water Code Ann.
7040; Del. S.B. No. 98 (1957) 4321(b) (Bill has passed the
Senate only to date); Md. Code Ann. 1957, Art. 66C, 721;
Miss. Code Ann. 5956-01(i); Ore. Rev. Stat. 536.310(7).


[SECTION 208. [Investigations.] The Commission may in its
discretion:
(1) make such investigations as it deems necessary (a) to deter-
mine if any person has violated or is about to violate any provision
of this Act or any rule, regulation, or order of the Commission or
(b) to aid in enforcing this Act or in formulating rules, regulations,
or orders;
(2) require or permit any person to file a statement as to any
facts and circumstances within his knowledge concerning the matter
to be investigated; and
(3) publish information concerning any investigation made pur-
suant to this Act.]

Comment

This optional section provides the Commission with
fairly broad investigative powers which may be necessary to
ascertain any violations of the Act or to assist the Commission
in better administering and enforcing the Act. These powers
may be a valuable adjunct to any agency so that it might
actually ascertain the real water use situation in the state,
whether agency rules and regulations are wise, and whether
the provisions of the Act and actions of the agency are being
enforced.


SECTION 209. [Subpoenas.]
(a) For the purpose of any investigation or proceeding under
this Act, the Commission or any officer or employee designated by
it may administer oaths and affirmations, subpoena witnesses, com-
pel their attendance, take evidence, and require the production of
any books, papers, correspondence, agreements, or other docu-
ments or records which the Commission deems relevant or material
to the inquiry.
(b) In case of a refusal to obey a subpoena issued to any per-
son, the [insert name of appropriate court], upon application of the
Commission or its representative, may issue an order requiring
compliance. Failure to obey the order of the court may be pun-
ished by the court as a contempt of court.








AND THE LAW


Comment

For comparable provisions see: Ark. Stat. Ann. 47-804
sub. 11; Cal. Water Code Ann. 1060, 1080; Iowa Code Ann.
485A.19 as amended by Iowa Laws 1957, c. 229, 9; Minn. Stat.
Ann. (1956 Supp.) 0105.44 sub. 7; Neb. Rev. Stat. 1943, 46-
209; Nev. Rev. Stat. 1553.150; Ore. Rev. Stat. 536.510; S.C,
Code 170-128.

SECTION 210. [Injunctions.] If it appears to the Commission
that any person has engaged or is about to engage in any act or
practice constituting a violation of any provision of this Act or any
rule, regulation, or order of the Commission, the Commission may
bring an action in the [insert name of appropriate court] to enjoin
any such acts or practices and to enforce compliance with this Act
or any rule, regulation, or order. Upon a proper showing, the
court shall grant a permanent or temporary injunction, restraining
order, or other appropriate relief. The Commission shall, not be
required to post a bond.

Comment

This is a common provision affording the Commission
adequate enforcement powers by permitting it to bring an
action in court to restrain contemplated or actual violations
of the Act. This is considered a requisite power for any
regulatory agency.
For like provisions see: Ark. Stat. Ann. 47-801G;
Cal. Water Code Ann. 1052; Del. S.B. No. 98 (1957) 4317
(Bill has passed the Senate only to date); Iowa Code Ann.
455A.19 as amended by Iowa Laws 1957, c.229, 22; Mich.
Stat. Ann. 3.523; Ore. Rev. Stat. 536.400; S.C. Code
70-110(4).

SECTION 211. [Hearings.]
(a) The Commission shall hold a hearing upon the request of
any person adversely affected by a rule, regulation, or order of
the Commission.
(b) In any hearing under this Act, the Commission shall admit
as a party any person whose interest may be adversely affected.

Comment

Subsection (a) permits any person aggrieved by any
rule, regulations, or order of the Commission to obtain a
hearing.
Subsection (b) is a mandatory provision which requires
the Commission to admit as a party in interest to all hearings


.-M-W








WATER RESOURCES


under the Act any person who may be adversely affected by
the outcome of the proceedings. The entire section is a pro-
cedural safeguard for all persons who have been or might be
aggrieved by action of the Commission.
For like provisions see: Ark. Rev. Stat. 47-806 sub.
1; Iowa Code Ann. 455A.19 as amended by Iowa Laws 1957,
c.229, 9; Mich. Stat. Ann. 3.527, 3.528; Neb. Rev. Stat.
1943, 46-209; 32 Pa. Stat. 640; S.C. Code 70-125; S.D.
Laws 1955, c.430, 1 (61.0113); Model State Administrative
Procedure Act 8; Federal Administrative Procedure Act, 5
U.S.C.A. 1003, 1004. See also: Ariz. Rev. Stat. 45-309,
45-310; Cal. Water Code Ann. 1340-1350; Del. S.B. No. 98
(1957) 4320 (Bill has passed the Senate only to date); Kan.
Gen. Stat. 82a-718 (1957 Supp.); Md. Code Ann. 1957, Art.
66C, 724; Minn. Stat. Ann. (1956 Supp.) 105.44 subs. 3-5;
Miss. Code Ann. 5956-18; But cf. Ore. Rev. Stat. 536.560.

Alternate 1
SECTION 212. [Hearing Procedures. ] In all hearings re-
quired to be conducted under this Act:
(a) The Commission shall have authority to (1) administer oaths
and affirmations, (2) issue subpoenas, (3) rule upon offers of proof
and receive relevant evidence, (4) take or cause depositions to be
taken, (5) regulate the course of the hearing, (6) hold conferences
for the settlement or simplification of the issues by consent of the
parties, (7) dispose of procedural requests or similar matters,
(8) make findings of fact, determinations of law, conclusions, and
the decision as to the subject matter of the hearing, and (9) take
any other action authorized by Commission rule consistent with this
Act.
(b) Any oral or documentary evidence may be received, but the
Commission shall as a matter of policy provide for the exclusion of
irrelevant, immaterial, or unduly repetitious evidence. Parties to
the hearing shall have the right to present their case or defense by
oral or documentary evidence, to submit rebuttal evidence, and to
conduct such cross-examination as may be required for a full and
true disclosure of the facts. In a hearing on the initial application
for a permit, the Commission may adopt procedures for the sub-
mission of all or part of the evidence in written form only.
(c) The Commission may take notice of judicially cognizable
facts and in addition may take notice of general, technical, or scien-
tific facts within its specialized knowledge. Parties shall be noti-
fied either before or during hearings, or by reference in prelimi-
nary reports or otherwise, of the material so noticed, and they








AND THE LAW


shall be afforded an opportunity to contest the facts so noticed. The
Commission may utilize its experience, technical competence, and
specialized knowledge in the evaluation of the evidence presented to
it.
(d) The transcript of testimony and exhibits, together with all
papers and requests filed in the proceeding, shall constitute the ex-
clusive record for decision by the Commission, and, upon payment
of lawfully prescribed costs, shall be made available to the parties.
The Commission shall prepare an official record, which shall in-
clude the testimony and exhibits, but it shall not be necessary to
transcribe shorthand notes unless requested for court review.

Comment

Subsection (a) confers normal adjudicatory powers upon
the Commission to conduct proper and appropriate hearings
and determinations.

Subsection (b) follows the common administrative agency
rule of permitting the Commission to receive all evidence
it deems helpful, but the Commission shall make a policy of
excluding irrelevant, immaterial, and repetitious evidence.
The opportunity to present necessary evidence and to cross-
examine is preserved to parties to the hearing. However,
in a hearing on the initial application for a permit the
Commission may provide for submission of all or part of the
evidence in written form only. This is to expedite such type
of hearings which should be the most numerous so that the
Commission will not become unduly burdened with interminable
hearings on initial applications.
Subsection (c) permits the Commission to take judicial
notice of properly cognizable facts but the Commission must
notify the parties of these matters and permit opportunity
to contest such facts. This section explicitly recognizes the
expertise of the Commission.
Subsection (d) provides that the record of the hearing
only shall constitute the record upon which the Commission
bases its decision. This precludes the Commission from
resting its determination upon facts outside of the record and
of which the parties may have no knowledge.
For other comparable provisions see: Neb. Rev. Stat.
1943, 46-209; Ore. Rev. Stat. 536.510; Federal Administra-
tive Procedure Act, 5 U.S.C.A. 1006; Model State Adminis-
trative Procedure Act 8-11; see also: Ark. Stat. Ann. 47-
806 sub. 1; Del. S.B. No. 98 (1957) 4320(a) (Bill has passed
the Senate only to date); Iowa Code Ann. 455A.19 as amended
by Iowa Laws 1957, c.229, 9; Mich. Stat. Ann. 3.528; Minn.
Stat. Ann. (1956 Supp.) 105.44 sub. 6; Nev. Rev. Stat. 533.
150; 32 Pa. Stat. 640; S.C. Code 70-126 to 70-128.








WATER RESOURCES


SECTION 213. [Judicial Review. ]
(a) Any person aggrieved by a final order or decision of the
Commission may obtain a review of the order or decision in the
[insert name of appropriate court] by filing in the court within
[sixty] days after the entry of the order or decision a written peti-
tion praying that the order or decision be modified or set aside in
whole or in part.
(b) A copy of the petition shall be served upon the Commission,
and within [thirty] days after service of the petition, or within such
further time as the court may allow, the Commission shall transmit
to the court the original or a certified copy of the entire record
upon which the order or decision was based; but, by stipulation of
all parties to the review proceeding, the record may be shortened.
Any party unreasonably refusing to stipulate to limit the record may
be taxed by the court for the additional costs.
Alternate 1
(c) On appeal, the findings of the Commission as to the facts,
if supported by substantial evidence in the record, are conclusive.
Alternate 2
(c) On appeal, the court shall act only on the record made by
the Commission. In considering the record it shall have authority
to weigh the evidence, judge the credibility of witnesses, and deter-
mine controverted questions of fact, recognizing that the Commis-
sion saw and heard the witnesses.
Alternate 3
(c) Upon appeal to the court, the matter shall be tried de novo
and shall proceed in all respects like other civil suits, except that
the findings of fact and order or decision -of the Commission shall
be prima facie evidence of the facts therein stated. The Commis-
sion shall certify the record upon which the order or decision was
made, and upon filing it with the court, the certified record shall
constitute the pleadings upon which the trial de novo shall proceed,
subject to such amendments as may be allowed by the court.
(d) If either party applies to the court for leave to adduce addi-
tional evidence, and shows to the satisfaction of the court that the
additional evidence is material and that there were reasonable
grounds for failure to adduce the evidence previously, the court may
order the additional evidence to be taken before the Commission in
such manner and upon such conditions as the court considers prop-
er. The Commission may modify its findings as to the facts by








AND THE LAW


reason of the additional evidence and shall file with the court any
new or modified findings together with any recommendations of the
Commission for the modification or setting aside of the original
order or determination.
(e) The commencement of proceedings under this section shall
not, unless specifically ordered by the court, operate as a stay of
the Commission's order or decision.
(f) Any person may apply to the [insert name of appropriate
court] for an order to compel Commission action which has been
unlawfully withheld or unreasonably delayed.

Comment

Subdivisions (a) and (b) are merely the procedural means
of effecting judicial appeal from Commission action.
Subdivision (c), Alternate 1, provides for application of
the substantial evidence rule by the court on appeal from the
Commission. Alternate 2 of subdivision (c) affords the court
a much broader scope of review than it would have under the
substantial evidence rule but with proper deference to the
Commission action. Alternate 3 of subdivision (c) provides
an even broader scope of review a trial de novo in which
the decision of the Commission will be prima facie evidence
of the facts there found. These three alternates afford a
selection of scope of review from the traditional substantial
evidence standard to the extreme of trial de novo. For a
more effective Commission authority, it is felt that a more
limited review than trial de novo is preferable.
Subdivision (d) provides the court with greater latitude
to have the Commission adduce further pertinent facts which
have unavoidably been omitted at the prior hearing by the
parties. This requires that the Commission act first upon
such further evidence rather than the court considering it for
the first time on appeal without the Commission having had
the opportunity to appraise such additional facts.
Subdivision (e) requires that the Commission order or
decision become effective even pending judicial review unless
the court expressly stays the effect of the Commission action.
Subdivision (f) precludes Commission inaction defeating
the rights of individuals. -The court may here compel action
by the Commission while in the previous subsections the court
.may only review Commission action.
For provisions comparable to subdivision (a) see: Ark.
Stat. Ann. 47-806 sub. 3; Minn. Stat. Ann. (1956 Supp.)
105.47; 32 Pa. Stat. 640; S.C. Code 70-131; Federal
Administrative Procedure Act, 5 U.S.C.A. 1009(a); Model
State Administrative Procedure Act 12(1).








WATER RESOURCES


As to subdivision (b) see: Ark. Stat. Ann. 47-806
sub. 6; Minn. Stat. Ann. (1956 Supp.) 105.47; Model State
Administrative Procedure Act 12(2).
Subdivision (c), Alternate 1, see: Cal. Water Code Ann.
1360-1363; Minn. Stat. Ann. (1956 Supp.) 105.47; Neb.
Rev. Stat. 1943, 46-210; Federal Administrative Procedure
Act, 5 U.S.C.A. 1009(e); Model State Administrative Pro-
cedure Act 12(7). Subdivision (c), Alternate 2, see: S.C.
Code 70-131; 10 U.S.C.A. 866(c). Subdivision (c), Alternate
3, see: Ark. Stat. Ann. 47-806 sub. 7; Iowa Code Ann.
455A.37; Md. Code Ann. 1957, Art. 78, 74; Mich. Stat.
Ann. 3.527-3.528; Nev. Rev. Stat. 533.170; Ore. Rev.
Stat. 536.560; Model State Administrative Procedure Act
12(1), a bracketed provision, states that nothing in the Act
is to interfere with any law providing for trial de novo.
For subdivision (d) see: Cal. Water Code Ann. 1360-
1363 and 2750-2771; Md. Code Ann. 1957, Art. 78, 75;
S.C. Code 70-131; Model State Administrative Procedure Act
12(7).
For subdivision (e) see: Ark. Stat. Ann. 47-806 sub.
8; Md. Code Ann 1957, Art. 78, 74(e); Minn. Stat. Ann.
(1956 Supp.) 105.47; Federal Administrative Procedure Act
12(3).
For subdivision (f) see: Federal Administrative Pro-
cedure Act, 5 U.S.C.A. 1009(e). As to review provisions
generally, compare: Del. S.B. No. 98 (1957) 4316 (Bill
has passed the Senate only to date); S.D. Laws 1955, c. 430,
1 (61.0114, 61.0152).

Alternate 2. [This is an alternate to Sections 212 and 213.]

SECTION 212. [Hearings and Judicial Review. ] The provisions
of the Model State Administrative Procedure Act shall apply to all
action of the Commission taken under this Act.

Comment

For states having adopted the Model State Administra-
tive Procedure Act or similar legislation, this section in-
corporates by reference all of the procedural requirements
of such acts as an alternate to Sections 212 and 213.

PART III DOMESTIC USES AND PRESERVATION
OF EXISTING USES

SECTION 301. [Continuation and Initiation of Domestic Uses.
(a) Domestic uses of contained water and ground water being
made at the effective date of this Act may be continued and new








AND THE LAW 565

domestic uses of contained water and ground water may be initiated
after the effective date of this Act without the user being required
to certify his use or to apply for a permit.
(b) Where access to a suitable supply of water is available, new
domestic uses may be initiated without regard to whether the taking
for domestic use reduces the water supply of any preserved use or
use made pursuant to a permit.
(c) No person making a domestic use may initiate an action in
the courts to compel the reduction of any preserved use or use
made pursuant to a permit granted prior to the initiation of the do-
mestic use in order to make available a sufficient quantity of water
for the domestic use.

Comment

The purpose of this section is to exempt domestic uses
from the permit and certification requirements of the Act,
and to define the right of any person to initiate or continue a
domestic use of water after the effective date of the Act. See:
Comment to Section 401 for related discussion concerning the
exclusion of domestic uses from the permit requirement of the
Act. Subsection (a), by exempting domestic uses from the
formal requirements of the Act, is in accord with many state
water codes. Iowa Code Ann. 455A.1 as amended by Iowa
Laws 1957, c. 229, 1;Minn. Stat. Ann. (1956 Supp.) 105.41;
Miss. Code Ann. 5956-04(a); Okla. Stat. Ann. c.82, 1002;
Wash. Rev. Code 90.44.010. Subsection (b) grants a prefer-
ence for domestic uses allowing them a superior position in
relation to other uses of the water. Compare: Iowa Code
Ann. 455A.21 as amended by Iowa Laws 1957, c. 229, 11.
Subsection (c) assures that, although domestic uses are ex-
empted from many phases of the Act, new domestic uses are
subject to certain prior water rights authorized under the Act.
A body of law developed and administered by the courts con-
trolling domestic uses and differing from the Act would lead
to confusion and thwart the efforts of the legislature to secure
uniform and comprehensive administration of the water resources
of the state. Subsections (b) and (c) grant to the new domestic
user a right to take water so long as it is physically available
to him; however, if the physical access to the water cannot be
acquired, he cannot force a prior lawful user to change his
use in order to assure a supply for the domestic user. The
quantity of water taken for actual domestic use will be small
and will not constitute a grave injury to the prior user who
suffers thereby. If, on the other hand, an upstream user or
a ground water user having prior access to the source of
supply is required to let water flow or allow the ground water
to continue to a subsequent domestic user, the quantity which
must be released may be much greater than that ultimately
taken by the domestic user. This will cause severe injury to


.MMM.d








WATER RESOURCES


the user without great advantage to the domestic user. Further,
from the point of view of administration, the taking by a dom-
estic user of water available to him requires no action on the
part of the Commission, but litigation to force a present user
to supply a domestic user would place an additional burden on
the Commission. With reference to the rights of a domestic
user in relation to uses initiated subsequent to his own, see:
Sections 211, 304(h), 407(b), 408(b), and 411(c).

SECTION 302. [ Shortage and Emergency Powers. ] Domestic
uses shall be subject to the shortage and emergency powers of the
Commission under Part V of this Act.

Comment
This section makes certain that although domestic uses
are exempted from certain requirements of the Act and given
a preferred status, they are subject, nevertheless, to the
powers of the Commission in times of shortage and emergency.
The quantity of water used for domestic purposes may consti-
tute relatively great proportions in times of shortage and
emergency; therefore, it is necessary for the Commission to
have some degree of control over them.


SECTION 303. [Preservation of Existing Uses. ]
Alternate 1
(a) The withdrawal of water directly from any contained or
ground water source, an application of water for the production of
power, or an impounding by any dam, waterway obstruction, or
reservoir of any contained water, which is a lawful and beneficial
use, other than a domestic use, (1) being made at the effective date
of this Act, (2) to be made in conjunction, with facilities under con-
struction at the effective date of this Act, or (8) made within the
[three] years prior thereto, may be continued if the user complies
with the provisions of Section 304.
Alternate 2
(a) The withdrawal of water directly from any contained or
ground water source, an application of water for the production of
power, or an impounding by any dam, waterway obstruction, or
reservoir of any contained water, which is a lawful and beneficial
use, other than a domestic use, (1) being made at the effective date
of this Act, (2) to be made in conjunction with facilities under con-
struction at the effective date of this Act, or (3) made within the








AND THE LAW 567

[three] years prior thereto, may be continued if the uses remain
beneficial and if the user complies with the provisions of Section
304.
(b) Unless authorized by the Commission, no use preserved in
subsection (a) may be modified by increasing the quantity of water
used or by changing the purpose or manner of the use, the time of
taking the water, or the point of diversion of the water.
(c) Uses preserved under subsection (a) may be conveyed to ,the
same extent and in the same manner as they could prior to the ef-
fective date of this Act.

Comment

Subsection (a) allows lawful and beneficial uses of
water made at, or three years prior to, the effective date
of the Act to be continued. Further, a use of water initiated
after the effective date of the Act is preserved along with
existing uses if the use is to be made in conjunction with
facilities under construction at the time of the effective date
of the Act. This future use is treated in a similar category
with uses in existence at the effective date of the Act to avoid
economic hardships. See: Fla. Stat. Ann. 373-101; Kan.
Gen. Stat. S82a-701(d), 82a-703 (1957 Supp.); and Miss. Code
Ann. 15956-13. The terminology "lawful... uses" includes all
uses made pursuant to legal rights, whether riparian or pre-
scriptive-, or rights obtained by grant, lease, condemnation,
or other legal means. Preserved uses are unlimited in
duration compared with the time limitation on all permits
granted under the Act. Cf. Section 406. This difference re-
sults from (1) the fact that the economics of existing uses
and uses to be made in conjunction with facilities under con-
struction were planned with reference to a relatively constant,
unlimited supply of water, and (2) the fact that, as opposed
to regulation of the intangible right to future use of water, it
may constitute a violation of a state constitution as an unlawful
exercise of police power if existing uses of water were sub-
stantially regulated by a limitation on their duration. Alter-
nate 1 allows the use to continue subject only to the require-
ment of beneficiality at the effective date; Alternate 2 provides
a continuing test of beneficiality in future years requiring
thereby that the use continue to be beneficial in the light of
future conditions and circumstances. Domestic uses are ex-
cluded from the technical requirements of a preserved use and
for reasons stated in the comment to Section 401 are treated
separately under Section 301. Subsection (b) defines and de-
limits the use preserved under subsection (a). Subsection (c)
insures that the preserved use under subsection (a) will main-
tain all the elements of transferability which characterized the
particular use before the passage of the Act.




i i i [ i i i I I I i








WATER RESOURCES


SECTION 304. [ Certification of Existing Uses. ]
(a) Within [three] years after the effective date of this Act, the
Commission shall require by rule any person making a use pre-
served under Section 303(a) to file a declaration of his use with the
Commission within [three] months after the effective date of the
rule. In its rules requiring the filing of declarations of existing
uses, the Commission may divide the State into areas and prescribe
different dates for filings from the various areas.
(b) Any person making a use preserved under Section 303(a) may
file a declaration of his use with the Commission at any time.
(c) (1) When the Commission requires filings of declarations of
uses by rule, it shall cause notice of the rule to be given by publi-
cation [once each week for the three weeks prior to the effective
date of the rule] in a newspaper of general distribution in the af-
fected areas.
(2) The Commission shall also cause notice of the rule to be
given by registered or certified mail to any person required to file
of whom the Commission has or could readily obtain knowledge or
who has requested mailed notice to be given when the Commission
adopted a rule requiring the filing of declarations.
(d) The declaration shall be in such form and contain such in-
formation as the Commission by rule prescribes including the quan-
tity of water used, the purpose or manner of the use, the time of
taking the water, and the point of diversion of the water.
Alternate 1
[(e) If no declaration is filed as required by rule of the Com-
mission, the Commission shall conclusively determine the extent of
the uses preserved under Section 303(a). ]
Alternate 2
[(e) If no declaration is filed as required by rule of the Com-
mission, the Commission, in its discretion, may conclusively deter-
mine the extent of the uses preserved under Section 303(a). ]
(f) If the Commission has not acted upon a declaration within
[ninety] days after its filing, the Commission shall certify those
uses described in the declaration.
(g) When uses preserved have been ascertained in accordance
with the provisions of this section the Commission shall issue a
certificate describing those uses.
(h) The Commission shall hold a hearing upon the request of
any person adversely affected by the certification or the refusal to
certify any water use.








AND THE LAW 569

Comment

This section provides an administrative procedure for
determining uses preserved under Section 303. Provisions
similar in theory are found in prior appropriation statutes.
Cf. Cal. Water Code Ann. c.3; Wash, Rev. Code c.90.12;
Wyo. Comp. Stat. 71-205 to 71-216. Compare: Miss. Code
Ann. 5956-13; Kan. Gen. Stat. 82a-704 (1957 Supp.). Sub-
section (b) avoids possible hardship to holders of preserved
uses due to delay on the part of the Commission in determin-
ing uses. Subsection (c) is similar to Nev. Rev. Stat. 533.
110. Alternate 1, subsection (e) in requiring the Commission
to determine rights where no declaration is filed is similar to
Nev. Rev. Stat. 533.125(2). Alternate 2 gives discretion to
the Commission to determine the use. Subsection (f) precludes
the Commission from undue delays so that the holder of a
preserved use can protect his rights. Neb. Rev. Stat. 1943,
46-232 is similar to subsection (g) and Nev. Rev. Stat.
533.145 is comparable to subsection (h).

Alternate 1
SECTION 305. [Exchange of Preserved Uses. ] Any person
making a use preserved under Section 303(a) may voluntarily ex-
change his preserved use for a permit.
Alternate 2
SECTION 305. [Exchange of Preserved Uses.]
(a) Any person making a use preserved under Section 303(a)
may voluntarily exchange his preserved use for a permit.
(b) No permit shall be issued by the Commission to a person
making a use preserved under Section 303(a) for an additional water
use connected with the preserved use unless the application includes
an offer to exchange under subsection (a) the use held by the appli-
cant.
(c) Whenever any person shall violate the provisions of Section
303(b), the Commission may, in its discretion, after giving notice
by registered mail, treat the violation as an offer of exchange under
subsection (a).

Comment

Under certain circumstances the holder of a preserved
use may wish to exchange a preserved use for a permit and
place himself within the permit provisions of the Act. Section
305 provides for this type of voluntary exchange. Alternate 2,
subsection (b), eliminates the difficulty which the Commission








WATER RESOURCES


would encounter if required to administer the water supplies
when an individual user holds various classes of water rights
for the same use. Subsection (c) of Alternate 2 has a two-
fold purpose: (1) to provide a convenient method whereby a
deviation from the terms of a preserved use (the deviation ac-
tually constitutes a new use) may be treated as an application
for a permit instead of requiring the formalities set forth in
Section 404; (2) to restrain those favored with a preferred use
from violating the provisions of their certificates.

SECTION 306. [Extinguishment of Preserved Uses. ] All or
any part of the uses preserved under Section 303(a) shall be extin-
guished if they are not used for [four] consecutive years or for
[any five out of seven years]. In computing the period: (1) years
of non-use in the three years prior to the effective date of this Act
shall be included; (2) years of non-use caused by a shortage or sur-
plus of water due to natural conditions will be considered neither
years of use nor non-use; and (3) years during which a declaration
was required to have been filed under Section 304 but during which
none was filed shall be conclusively presumed to be years of non-
use.

Comment
This section provides for the extinguishment of preserved
uses for non-use, thereby avoiding possible control of the
water resources by mere paper rights. It further implements
the maintenance of the principle of beneficial use, the basic
tenet of the statute, by emphasizing that "non-use" is not
"beneficial use." Prior appropriation statutes have similar
sections governing the extinguishment of a permit right for
non-use. Cf. Idaho Code 42-222; Miss. Code Ann. 5956-06;
Neb. Rev. Stat. 1943, 46-229.02; Tex. Civ. Stat. 17544.
According to Kan. Gen. Stat. 1949, 82a-703 and Iowa Code
Ann. 455A.29 as amended by Iowa Laws 1957, c.229, 19,
uses made prior to the effective date of the statute, and
allowed to continue, are cut off by non-use a designated
statutory period.


PART IV PERMITS FOR WATER USE AND DEVELOPMENT

SECTION 401. [ Permits for Water Use. ]
(a) After the effective date of this Act, except in respect to
domestic uses and uses preserved under Section 303(a), a withdrawal
of water directly from any contained or ground water source, an
application of water for the production of power, or an impounding
by any dam, waterway obstruction, or reservoir of any contained









AND THE LAW 571

water, may be made only in accordance with a permit issued by
the Commission.
(b) The Commission is authorized to issue general and specific
permits for the use of contained water and ground water subject to
the provisions of this Act.

Comment

This section brings under state control through a permit
system all uses of the water resources of the state, except
diffused surface waters (see Section 402), which affect the
flow of the stream or the level of the ground water. Boating,
swimming, fishing, and other similar uses which exist con-
sistently with the regulated uses are not subjected to the re-
quirement of a permit. The section does not include the taking,
application, or impounding of'water received or obtained from
or through a public or private supplier. It encompasses only
the taking from the contained or ground water source, the
application for power of these waters as they exist at their
source, and the impounding of contained water within its
natural bed and banks including any overflow of the bed or
banks. See: Iowa Code Ann. 455A.26 as amended by Iowa
Laws 1957, c. 229, 16.
Certain uses are preserved and treated under Section
303; consequently, they are excluded from this section. Future
domestic uses are exempted because (1) domestic uses un-
doubtedly warrant high priority among water uses, (2) in re-
lati9n to total use, relatively insignificant quantities are in-
volved, (3) an increasing proportion of domestic water supplies
are acquired through public water suppliers, and (4) the grant-
ing of permits for these uses would place an unnecessary bur-
den on the Commission. For legislation comparable to Section
401(a), see: Md. Code Ann. 1957, Art. 66C, 720! Minn.
Stat. Ann. (1956 Supp.) 105.41, 105.42; Miss. Code Ann.
15956-04(a); Ore. Rev. Stat. 537.130, 537.300, 537.535.
Also, cf. Cal. Water Code Ann. 1225; Nev. Rev. Stat.
533.325.
Subjecting the riparian right to future use of water to
the permit requirements and conditions has been constitution-
ally sustained as an exercise of police power by the state.
See: California-Oregon Power Co. v. Beaver Portland Co.,
73 F.2d 555 (C.C.A. 9th, 1934) affirmed on different grounds,
295 U.S. 142, 55 S.Ct. 725 (1935), concerning an Oregon
enactment; State ex rel. Emery v. Knapp, 167 Kan. 546, 207
P. 2d 440 (1949) and Baumann v. Smrha, 145 F. Supp. 617
(D.C. Kan., 1956) affirmed, 352 U.S. 863, 77 S.Ct. 96
(1956), upholding the Kansas statute. For comparable statu-
tory provisions, see: Miss. Code Ann. 5956-04; Kan. Gen.
Stat. 1949, 82a-705; Iowa Code Ann. 455A.26 as amended
by Iowa Laws 1957, c. 229, 16.








WATER RESOURCES


Subsection (b) enables the Commission to grant either
specific or general permits. General permits are to be grant-
ed by rule of the Commission so that individual applications
are not necessary. In this manner the Commission will be
able to concentrate its efforts in areas within the state where
detailed management and regulation is necessary.

SECTION 402. [ Permits to Impound Diffused Surface Water. ]
After the effective date of this Act, no reservoir, dam, embank-
ment, pond, or other device or structure for the impounding or col-
lection of diffused surface waters where the amount of water so im-
pounded or collected exceeds [ ] acre-feet may be constructed
or established unless a permit has been obtained from the Commis-
sion. The Commission is authorized to issue general and specific
permits.

Comment

In order to secure intelligent management of the uses of
the waters of the state and to avoid interference with these
uses when made in accordance with the Act, it is necessary
for the Commission to have power over all water resources
which reasonably could cause interference with uses sanctioned
by the Act. This section recognizes the scientifically estab-
lished fact that all waters whether above, upon, or beneath
the earth are part of one hydrological cycle and that an inter-
ference with one phase of the cycle affects other phases. Spe-
cifically, an interference with the flow of diffused surface
water affects the flow of streams and lakes since great
amounts of water found in these collected bodies reach them
in the form of diffused surface water. By giving the Commis-
sion control over any substantial interference with the flow of
diffused surface water, the plans of the Commission for the
development of the waters of the state under the permit system
will be secure. Further, conflicts which may arise between
users of stream and lake supplies and users of diffused sur-
face supplies can be avoided by allowing the Commission
power to plan and regulate all the waters of the state. Cf.
Cal. Water Code 6002, 6077; Md. Code Ann. 1957, Art.
66C, 721; Ore. Rev. Stat. 537.130(2), 537.300; Wash. Rev.
Code 90.28.060.

SECTION 403. [Permission to Supply Water. ]
(a) After the effective date of this Act, no state or local gov-
ernmental agency shall contract to obtain a water supply from any
person not holding a permit to supply the water, unless permission
is obtained from the Commission by the state or local governmen-
tal agency.








AND THE LAW 573

(b) After the effective date of this Act, no person shall contract
to supply water to another person unless permission is obtained
from the Commission by the supplier.

Comment

The purpose and effect of subsection (a) is to prohibit
state and local governmental agencies (see Section 102U) and
(p)), without the consent of the Commission, from contracting
for a supply of water from persons or agencies over whom
'the Commission has acquired no control under the permit
sections. Subsection (a), in a certain degree, provides an
indirect method whereby the state can review the uses of
water affected by activities of the federal government. To
avoid illegality, no attempt is made to interfere with a private
individual's right to contract with the federal government.
Subsection (b) permits the Commission to control supplies of
water to persons within the state. The possibility of state re-
gulation of federal activity may exist if the United States de-
cides to abide by the water law of the particular state whose water
resources are being administered.

SECTION 404. [Applications and Notice. ]
(a) Each application for a permit required under this Act shall
be in writing and shall state specifically the information determined
by Commission rule or regulation to be, necessary to determine
(1) the merits of the water use, impounding, or collection, (2) the
hazards to public health, safety, or welfare, (3) the desirability of
the permit, and (4) any qualifications of the applicant the Commis-
sion deems appropriate to effectuate the provisions of this Act.
(b) At least [ten] days prior to the granting of any permit, the
Commission shall cause notice of the application to be given by pub
location at the applicant's expense in a newspaper of general distri-
bution in each [county] in which the water resources will be sub-
stantially affected by the granting of the permit. The Commission,
by rule, regulation, or order, may also require the applicant to
mail notices of the application to any state or local governmental
agency or other person who may have an interest in the application.

Comment

Subsection (a) allows the Commission to determine details
of applications for permits. Cf. Ariz. Rev. Stat. 45-142,
45-313; Cal. Water Code Ann. 1260; Idaho Code (1957 Supp.)
42-232; Idaho Code 42-202; Iowa Code Ann. 455A. 19 as
amended by Iowa Laws 1957, c.229, 9; Kan. Gen. Stat. 82a-
709 (1957 Supp.); Ore. Rev. Stat. 537.140, 537.615; Utah


r I 0








WATER RESOURCES


Code Ann. 173-3-2. Subsection (b) provides notice to interest-
ed parties and to state agencies and municipalities to repre-
sent the public interest. Cf. Cal. Water Code Ann. 111300-
1323; Iowa Code Ann. 455A.19 as amended by Iowa Laws
1957, c.229, 9; Idaho Code (1957 Supp.) 142-233a; Nev. Rev.
Stat. 1533.360, 533.440, 534.020; N.M. Stat. Ann. 1175-5-4,
75-11-3; Okla. Stat. Ann. c.82, 23; Utah Code Ann. 73-3-6
as amended.

SECTION 405. [Classes of Permits.] The Commission is
authorized: (1) to establish classes of permits, and (2) to exempt
for specific periods minimal quantities of water or types of water
uses or users in specified areas from the requirement of a permit
when the Commission finds that such exemptions do not constitute
an unreasonable impediment to the most beneficial use of the water
resources of the State.

Comment

Convenient and efficient operation of the Commission in
granting permits necessitates the power to set up certain class-
ifications whereby applications of similar character may be
handled easily and treated uniformly. Classification also pro-
vides a guide to prospective water applicants in planning for
the acquisition of permits. See: Ore. Rev. Stat. 536.340,
537.735(c). Cf. Wyo. Laws 1957, c. 116, which sets out prefer-
ences in the statutes. The power to exempt certain groups of
of users or uses is granted in order to assist in the practical
administration of the Act.

SECTION 406. [Duration of Permits. ] Each permit shall be
issued for a specified period, nt -eceedig-- ifty]-years, as deter-
mined by rule, regulation, or order of the Commission, depending
upon the manner and nature of the water use involved.


Comment
Each permit granted by the Commission is limited in
duration. This limitation insures reevaluation at periodic in-
tervals of the beneficial characteristic of the permitted use.
The duration of the permit will be determined by the Commis-
sion in the public interest. The period of the permit should
be sufficiently long to permit recovery of investments and to
afford sufficient time for repayment of bond issues of munici-
ipalities. See: ll. Ann. Stat. c.19, 65; Iowa Code Ann.
455A.20 as amended by Iowa Laws 1957, c.229, 10.


__








AND THE LAW


SECTION 407. [Granting of Permits. ]
(a) In granting permits and determining the duration of permits
the Commission shall have as its objective the most beneficial use
of the water resources of the State.
(b) General permits or specific permits may be granted if:
(1) there is water available for use or for impounding or collecting;
(2) the use of the water will be beneficial; (3) the most beneficial
use and development of the water resources of the State will not be
impaired by granting the permit; and (4) granting the permit will
not substantially and materially interfere with preserved uses, or
with domestic or permitted uses made previously, except as provid-
ed in this Act.
(c) Permits may be granted without regard to whether, under
the law operative in this State prior to the effective date of this Act,
the use made under the permit could have been maintained only in
connection with specific lands, a particular natural watershed, or
otherwise.
[(d) In granting permits [when there are competing applicants
for the supply of available water], the Commission shall give no
preference or priority to applications first in time, but shall be
governed by the standard of beneficial use. ]
(e) The Commission shall hold a hearing upon the request of
any person who is or may be adversely affected by the granting or
denial of a permit.
Comment

Subsection (a) enunciates the general proposition that the
Commission in considering each permit shall be guided by the
general principle of maximum beneficial use of the water re-
sources of the state. Subsection (b) sets forth specific criteria
to be satisfied before the permit may be granted. See: Ariz.
Rev. Stat. 145-143A; Kan. Gen. Stat. 182a-711 (1957 Supp.).
Subsection (b) (1) prevents the appropriation of water and the
acquisition of permit rights when in fact no water is available.
See: Cal. Water Code Ann. 1253, 1375(d). Subsection (b)
(2) reiterates the traditional statutory water law criterion of
beneficial use. See: Cal. Water Code Ann. 11240, 1375(c);
Iowa Code Ann. 455A. 21 as amended by Iowa Laws 1957,
c.229, 11; Miss. Code Ann. 5956-07. Subsection (b) (3)
protects the public interest against undesirable utilization of
the water resources. See: Iowa Code Ann. 455A.20 as
amended by Iowa Laws 1957, c.229, 10; Minn. Stat. Ann.
(1956 Supp.) 105.45; Miss. Code Ann. 5956-07; N.M. Stat.
Ann. 75-5-6. Subsection (b) (4) protects uses existing when
the application is made from substantial an. material inter-
ference by the new user thereby insuring stability and certain-
ty of established uses necessary to encourage investment in
water development.








WATER RESOURCES


Subsection (c) provides for the most beneficial distri-
bution of the water resources of the state and eliminates any
limitations which have been developed by the courts under the
common law doctrines relating to water use. Cf. Fla. Stat.
Ann. 373.141(1) (a); Ill. Ann. Stat. c.19, 65; Wis. Stat.
Ann. 31.14.
Subsection (d) is suggested as part of Section 407 to
assure that the prior appropriation theory has no application.
Subsection (e) assures that any aggrieved person or govern-
mental unit or agency can secure a hearing. Cf. Cal. Water
Code Ann. 1330-1342.

SECTION 408. [Conditions of Permits. ] Each permit granted
by the Commission shall contain and be subject to the following con-
ditions:
(a) the water must be used, impounded, or collected for the
beneficial purpose described in the permit;
(b) the use, impounding, or collection authorized by the permit
must not interfere substantially and materially with preserved uses
or with domestic or permitted uses made previously, except as pro-
vided in this Act;
(c) the use, impounding, or collection is subject to the shortage
and emergency powers of the Commission;
(d) the permit may be suspended or revoked in accordance with
the provisions of this Act; and
(e) such other conditions as the Commission may establish by
rule or regulation to effectuate the provisions of this Act.

Comment

Section 408 establishes the conditions of all permits
granted under the Act. Cf. Cal. Water Code Ann. 1391;
Minn. Stat. Ann. (1956 Supp.) 105.44 subs. 2, 9; Nev. Rev.
Stat. 533.430. Clause (a) prevents deviation from the terms
of the permit relative to the purpose for which the water is
taken (Section 401). Clause (b) reiterates one of the criteria
which must be satisfied before a permit is granted (Section
407(b)(4)). Clause (c) calls attention to the expressed powers
of the Commission under Part V. Clause (d) relates to the
powers of revocation of the Commission under Section 412.
Clause (e) points out that the Commission has general powers
under Sections 202 and 203 to make rules and regulations
relative to permits under the Act.

[SECTION 409. [Permits Interfering with Preserved, Domes-
tic, or Permitted Uses. ] Where application is made for a permit








AND THE LAW 577

and there is sufficient water available, but the use under the permit
would interfere substantially and materially with a domestic use pre-
viously initiated, or with the water supply, water diversion facili-
ties, or water power of a preserved use or a use made under a
permit previously granted, the Commission may issue a permit sub-
ject to the condition that the permit holder furnish to the person
whose use is interfered with a quantity of water or power equal to
that lost by reason of the interference. ]

Comment

Section 409 suggests the adoption of a theory of "replace-
ment" or "compensation in kind" to enable a fuller develop-
ment of the available water resources. Existing use patterns
when protected against interference by subsequent users, may
freeze the usable quantity of water at an artificial or arbitrary
amount. For example, if the ground water table must be
maintained at a level sufficient to supply prior users with
shallow wells, water available below that level will remain
unused. This section allows the new permit holder to make
use of the water available so long as prior users are accom-
modated. The theory of replacement appears in Utah Code
Ann. 73-3-26.

[SECTION 410. [Compulsory Relinquishment of Permits. ] Un-
less a specific exemption is authorized by the Commission, each
permit shall provide, as a condition, that at any time or at a speci-
fied time after issuance of the permit the permit holder may be re-
quired, upon receipt of reasonable compensation, to relinquish to
the Commission his permit if the Commission determines that
(1) there exist one or more applicants for permits to make water
uses which would be more beneficial, or which would be as benefi-
cial and would provide a more complete utilization of the available
water, than the permit holder is making; (2) additional permits to
make such uses cannot be granted without acquiring the water use
permit because there is no available water; (3) permits would be is-
sued if the amount of water then being used, impounded, or collect-
ed by the permit holder were to be made available; and (4) the ap-
plicants are willing and able to furnish reasonable compensation to
the permit holder. ]

Comment

Section 410 is suggested as a method to aid in attaining
the maximum beneficial use of the water resources of the
state. Often it is desirable to allow a low preference use of


I








WATER RESOURCES


water to be made rather than permit the water to remain un-
used. However, it is not desirable to allow a low preference
use to interfere with the over-all development of the water
resources. Section 410 allows the Commission to subject the
low preference use to the condition that the use may be taken
by a higher use in exchange for reasonable compensation to
be paid by the new user. Precedent is found for this manner
of eliminating low preference uses and securing the maximum
beneficial use of water in Wash. Rev. Code 890.04.030 and
Wyo. Laws 1957, c.116.

SECTION 411. [Renewal of Permits.]
(a) A permit holder may file an application for a renewal of the
permit after one-half the length of the period of the existing permit
has expired. Renewed permits shall take effect immediately upon
being granted by the Commission.
[(b) If a permit has been issued for a period exceeding one year,
and no application for renewal has been filed six months before the
expiration of the permit, the Commission may proceed immediately
to grant to another person a permit to use the water being used
pursuant to the existing permit, and to become effective upon the
expiration of the existing permit. ]
(c) The Commission shall hold a hearing upon the request of
any person adversely affected by the renewal or refusal to renew a
permit.

Comment

Planning for the security of his investment demands
that a permit holder be advised of the possibility of a renewal
of his permit. Section 411 provides for this necessity allow-
ing the Commission to grant renewal permits before the origi-
nal permit has expired. In this fashion a permitted may plan
for the future. However, to allow the Commission to examine
the relative benefits of granting or denying a renewal appli-
cation, the section does not require the Commission to act
on the application for renewal until one-half of the time limit
on the existing permit has elapsed. Cf. Iowa Code Ann.
455A.20 as amended by Iowa Laws 1957, c.229, S10. Sub-
section (b) is suggested as a method to avoid the non-use of
water during pendency of applications, and also to allow plan-
ning by the Commission for the future use of the water. Sub-
section (c) is identical to Section 407(e), which relates to
applications for initial permits, in providing hearings to pro-
tect individuals and the public whenever a use of water under
a permit is considered by the Commission.








AND THE LAW 579

SECTION 412. [Revocation of Permits.]
(a) A permit may be revoked in whole or in part: (1) for any
material false statement in the application or in any report or state-
ment of fact required pursuant to the provisions of this Act; (2) for
violation of the provisions of this Act; (3) for violation of the condi-
tions of the permit; or (4) for non-use.
(b) In any proceeding to revoke a permit in whole or in part,
the Commission shall give written notice to the permit holder of the
facts or conduct which may warrant such action and provide oppor-
tunity for a hearing.
Comment

Section 412 establishes four conditions justifying revo-
cation of a permit and the general procedure for the revoca-
tion. In order to assure compliance with the terms of the
Act and the rules of the Commission, and to effectuate the
efficient working of the permit system, it is necessary for
the Commission, under certain circumstances, to have the
power to revoke permits. Subsections (a) (1), (2), and (3)
are in the nature of sanctions imposed upon a permitted for
malfeasance. Subsection (a) (4) merely permits the Commis-
sion to revoke a permit for the purpose of granting the use
of the water to another applicant rather than allow non-use
of the water. See: Cal. Water Code Ann. 511410, 1675;
Iowa Code Ann. 1455A. 29 as amended by Iowa Laws 1957, c.
229, 119; N.M. Stat. Ann. 1175-11-8, 75-5-26; cf. Idaho
Code 142-222; Miss. Code Ann. 15956-05; Ore. Rev. Stat.
1537.250(2), 537.410 537.450. Subsection (b) protects the
permitted from unjustified revocation of this permit.

[SECTION 413. [Injunctions. ] Except as provided in this Act,
no court may enjoin the use of water by any person who holds a
valid permit for such use. ]

Comment

Section 413 is suggested to preserve the stability of the
permit system under the jurisdiction of the Commission. It
further safeguards the investment which may have been made
by the individual on the basis of his permit. Adequate safe-
guards are provided throughout the Act whereby all persons
may protect their interest against invasion by a permit holder.

[SECTION 414. [Injury to Property Rights, Damages. ] If the
use authorized under a permit results in an injury to any property
rights, the injured person is entitled to compensation for actual
damages in a suitable action (at law) against the permit holder.]








WATER RESOURCES


Comment

Under Section 413, the permit system and individual
permits are protected from interference by court injunction
operating apart from the permit section itself. Section 414
preserves the right of injured persons to obtain compensation
for actual injury to property rights which may be incurred
through the application of the permit system. The require-
ment of "actual damages" eliminates suits for nominal dam-
ages and allows relief only in those cases where the litigant
actually has suffered present injury from an application of the
Act. See: Kan. Gen. Stat. 82a-716 (1957 Supp.).

Alternate 1
[SECTION 415. [Fees for Permits.] The Commission is
authorized to establish fees for the issuance of permits under this
Act. In determining the amount of fees the Commission shall con-
sider the class of the permit, the duration of the permit, the capi-
tal investment made or to be made by the permit holder, the quan-
tity or nature of the water use, and other factors the Commission
deems relevant or material in the determination of a reasonable fee.
The fee may be waived, in the discretion of the Commission, if the
permit holder has agreed to convey any rights having substantial
value to the State. ]
Alternate 2
[SECTION 415. [Fees for Permits.] The Commission is
authorized to charge and collect fees for the issuance of permits in
accordance with the following schedule: ...]

Comment

Section 415 proposes a fee system whereby some or all
of the cost of operating under the Act may be financed. Alter-
nate 1 permits the Commission to determine fees thereby pro-
viding flexibility to cope with individual cases. See: N.M.
Stat. Ann. 75-2-6(j), 75-11-9. Alternate 2 requires the
legislature, when adopting the Act, to provide a fee schedule
covering the various phases of the Act. Fee schedules repre-
senting various degrees of detail may be found at Miss. Code
Ann. 5956-16; Ariz. Rev. Stat. 45-320; Cal, Water Code
Ann. 1525-1560; Idaho Code 42-221; Nev. Rev. Stat.
533.435; N.M. Stat. Ann. 75-2-6(a-i); Ore. Rev. Stat.
537.785.







AND THE LAW


PART V WATER SHORTAGES AND EMERGENCIES

SECTION 501. [Water Shortages. ]
(a)(1) If a shortage of contained water, or ground water, or
both exists in any area of the State, (2) if the Commission finds
that a shortage may occur, or (3) if the ground water table in any
area of the State is progressively declining, the Commission may,
in order to obtain the most beneficial use of the water resources of
the State and to protect the public health, safety, and welfare and
the interests of the water users affected:
(1) establish rules, regulations, or orders affecting the use
of contained water, ground water, or both as the conditions warrant,
and forbidding the construction of new diversion facilities or wells,
the initiation of new water uses, or the modification of any existing
uses, diversion facilities, or storage facilities within the affected
area;
Alternate 1
(2) regulate the use of contained water, ground water, or
both, within the affected area by apportioning, limiting, or rotating
uses of water, or by preventing those uses which the Commission
finds have ceased to be reasonable or beneficial, but (i) domestic
uses shall always be preferred to other uses, and (ii) preserved
uses shall always be preferred to uses of water made pursuant to
permits; and
Alternate 2
(2) regulate the use of contained water, ground water, or
both, within the affected area by apportioning, limiting, or rotating
uses of water, or by preventing those uses which the Commission
finds have ceased to be reasonable or beneficial, but (i) domestic
uses shall always be preferred to other uses; (ii) preserved uses
shall always be preferred to uses of contained water made pursuant
to permits; and (iii) among permitted uses of contained or ground
water which are substantially similar, the Commission shall give
preference to uses initiated prior in time [unless the Commission
determines that such preference would impair or be detrimental to
the public interest in the utilization of water resources]; and
(3) make other rules, regulations, and orders necessary for
the preservation of the public health, safety, and welfare and the
interests of affected water users.
(b) On the motion of any affected person, the Commission shall
set a time and place of a hearing to determine whether any rules,


1








WATER RESOURCES


regulations, or orders established under this section should be
amended, repealed, or revoked.


Comment

When water supplies are inadequate for the users or the
ground water level declines, this section grants to the Commis-
sion special powers (1) to administer the water resources
according to the standard of most beneficial use, (2) to deter-
mine a method of allocating water, and (3) to provide prefer-
ences for the use of water. Cf. Ore. Rev. Stat. 8537.685,
537.735; Iowa Code Ann. 455A. 28 as amended by Iowa Laws
1957, c.229, 18; Utah Code Ann. (1957 Supp.) 73-5-1.
Priorities to water are predicated upon the criterion of most
beneficial use as determined by the Commission. The prefer-
ence for domestic use in subsection (a) (2) is found in many
water codes. Ariz. Rev. Stat. 45.147; Colo. Const., Art.
XVI, 6 (1876). Preserved uses are preferred over uses of
waters made pursuant to permits. Alternate 2 of subsection
(a) (2) provides a preference among similar permitted uses
for those initiated prior in time. This is .the only place in
the Act that, once a right to use water has been properly
determined, a doctrine of priority is employed to determine
preference among users. Subsection (b) assures that the
special powers of the Commission in times of shortage or
ground water depletion will not be employed any longer than
is necessary to cope with the problem.

SECTION 502. [Emergency Powers.]
(a) If an emergency exists within any area of the State, and if
the Commission finds that the exercise of its powers under Section
501 will not protect the public health, safety, and welfare, the Com-
mission may:
(1) establish rules, regulations, or orders limiting, appor-
tioning, rotating, or prohibiting the use of the water resources of
the State;
(2) authorize any affected state or local governmental agency
or public water supplier to enter upon public or private lands and
remove any amount of water necessary to protect the public health,
safety, and welfare; and
(3) make other rules, regulations, and orders necessary to
protect the public health, safety, and welfare during the emergency.
(b) On the motion of any affected person, the Commission shall
set a time and place of a hearing to determine whether the emer-
gency has terminated or whether any rules, regulations, or orders
entered during the emergency should be amended, repealed, or re-
voked.








AND THE LAW 583

(c) The authority granted the Commission under this Section is V
in addition to the authority granted under other provisions of this
Act

Comment

This Section is effective only after the powers granted
to the Commission under Section 501 to control shortages are
inadequate. It is limited further in scope to situations in
which the public health, safety, and welfare are endangered
due to lack of water. The special powers granted under this
section cannot be used to benefit individual private persons,
but is limited to agencies which represent the interests of
the public. Cf. Iowa Code Ann. 1455A. 28 as amended by Iowa
Laws 1957, c.229, 118. Subsection (b) insures against un-
necessary use of the emergency powers by the Commission.

[PART VI POLLUTION

SECTION 601. [Control of Pollution. ] Any pollution of the
water resources of this State is subject to management, control,
and regulation by the Commission under the provisions of this Act.

Comment

This section places pollution control under the Commis-
sion administering other water uses. The waste assimilation
capacity of a body of water is determined greatly by its
quantity. The intelligent regulation of waste disposal necessi-
tates a consideration of all uses made of the water. The
interrelation of waste assimilation, consumptive use, and non-
consumptive uses, such as wildlife preservation, requires that,
for the most beneficial use and development of the water re-
sources of a state, pollution control be vested in the Commis-
sion administering other water uses. The most recent water
legislation in Mississippi and Iowa recognize the need for
interrelated control. Miss. Code Ann. 15956-04(d); Iowa
Code Ann. 455A.23 as amended by Iowa Laws 1957, c.229,
13.
Part VI is placed in brackets to show that it is an
optional addition to the Model Water Use Act. Any state
not desiring to integrate pollution control with water use
management may separate Part VI from the Act without
doing violence to the water use provisions.

SECTION 602. [Permits Required. ]
(a) After the effective date of this Act, no person may initiate
any activity which results in pollution except in accordance with a
permit issued by the Commission.








WATER RESOURCES


(b) Persons engaged in activities resulting in pollution permitted
by law prior to the effective date of this Act may continue the same
activities until (1) the Commission issues an order for the cessation
or modification of the pollution or (2) the Commission requires by
rule or regulation that such persons obtain permits.
(c) Each permit shall contain and be subject to the following
conditions:
(1) the pollution must not impair or threaten to impair the
public health and safety or any municipal or public water supply;
(2) the permit may be modified, suspended, or revoked in
accordance with the provisions of this Act; and
[(3) the pollution must not interfere substantially and material-
ly with preserved uses or with domestic uses or uses made pursu-
ant to permits initiated prior to the granting of the pollution permit;]
(4) other conditions the Commission may establish by rule or
regulation to effectuate the provisions of this Act.
(d) Each permit may be modified, suspended, or revoked at any
time by rule, regulation, or order of the Commission to protect the
public health, safety, and welfare.
(e) The Commission shall hold a hearing upon the request of
any person adversely affected by the granting, denial, or revocation
of a permit.

Comment
Section 602(a) subjects the use of water for waste assimi-
lation to the permit provisions of the Act. It is similar to
provisions in other water pollution control acts which provide
a permit for pollution. See : Ohio Rev. Code Ann. 6111.04,
6111.03(1); 35 Pa. Stat. 691.301; S.C. Code 70-117. Sub-
section (b), by providing for the continuation of existing pollu-
tion until the Commission takes some 'affirmative action to
control it, is similar to 35 Pa. Stat. 691.202, 691.302 and
S.C. Code 70-120. Pollution, by its very nature, may pre-
sent dangers to the public health and safety as time passes
even though exercised in accordance with a permit granted by
the Commission under the permit section. For this reason,
the pollution permit by Subsection (c) is made subject to certain
conditions in addition to those placed on permits generally.
These conditions, along with subsection (d), are similar in
theory to Ark. Stat. Ann. 47-804(9) (1955 Supp.); N.Y. Public
Health Law 1208(3) (f); Ohio Rev. Code Ann. 6111.03(1) and
35 Pa. Stat. 691.206.








AND THE LAW


SECTION 603. [Summary Action. ]
(a) The Commission, or any state governmental agency desig-
nated by it, is authorized to take all appropriate action including
the promulgation of rules, regulations, and orders to abate, termi-
nate, modify, or decrease any pollution affecting the public health,
safety, and welfare. If repairs, new construction, or improvement
in technique is required, the Commission shall afford a reasonable
time for compliance, unless the Commission finds that delay will
adversely affect the public health and safety.
(b) Orders issued under subsection (a) of this section shall be
final and conclusive unless the affected person requests a hearing
within [ten] days after receipt of a copy of the order.
(c) If a hearing is requested, the orders of the Commission
will be stayed unless the Commission finds that the public health
and safety may be adversely affected. If the Commission so finds,
compliance with the order will not be stayed during pendency of the
hearing or any judicial review thereof.

Comment

This Section provides the Commission with necessary
power to protect the general public from any detrimental
effects of pollution. See: Ohio Rev. Code Ann. 6111.03(G);
Mich. Stat. Ann. 3.525. The orders of the Commission are
given immediate effect so as to insure prompt abatement of
the hazard, although, if the public danger is not imminent,
orders will be stayed during a hearing to determine their
validity. Compare: Mich. Stat. Ann. 3.528; N.Y. Public
Health Law 1243.

SECTION 604. [General Standards. ]
Alternate 1
The Commission is authorized to establish standards regarding
pollution of the water resources of the State in relation to the pub-
lic and private uses to which the water resources are or may be
put. The standards may be revised from time to time as the cir-
cumstances may warrant.
Alternate 2
The Commission is authorized to classify the water resources
of the State in relation to the public and private uses to which the
water resources are or may be put and to establish different stand-
ards applicable to the various classes of water resources. The







WATER RESOURCES


classifications and standards may vary as between all types of water
resources and from area to area as the Commission may deem nec-
essary to accomplish the purposes of this Act. The standards may
be revised from time to time as the circumstances may warrant.
Alternate 3
(After final sentence of Alternate 1 or 2 add the following:) In
establishing these standards, the Commission shall consider the vol-
ume and velocity of the water, the volume and type of polluting dis-
charge, feasible and available means of pollution treatment before
the polluting matter is discharged into the water, and any other fac-
tors the Commission deems important in view of the public health,
safety, or welfare.

Comment
Since the Commission controls water uses along with
pollution, it is capable of determining in an efficient manner
the standards for pollution in each of the waters of the state.
By systematic classification of waters, efficient and uniform
regulation is possible. A substantial number of water pollu-
tion control acts contain provisions on standards. Cf. Ark.
Stat. Ann. 47-801(I)and 48-804(4) (1955 Supp.); Mich. Stat.
Ann. 3.525; N.Y. Public Health Law 1209; S.C. Code
70-112, 70-113, 70-114. Alternate 3, in providing detailed
criteria for the determination of standards, is similar to
N.Y. Public Health Law 1209(3).

SECTION 605. [General Powers.] In addition to the powers,
granted the Commission under other provisions of this Act, the Com-
mission is authorized:
(a) to develop programs for the prevention, control, and abate-
ment of pollution;
(b) to advise, consult, and cooperate with federal officers and
agencies, state or local governmental agencies, the officers and
agencies of other states, interstate agencies, industrial groups, agri-
cultural groups, conservation groups, and other affected persons in
the furtherance of its pollution and control program;
(c) to collect and disseminate data and information relating to
pollution and its prevention and control; and
(d) to bring any appropriate court action in the name of the peo-
ple of this State, as may be desirable or necessary to carry out
the provisions of this Act, to enforce the laws of this State and the
rules, regulations, and orders of the Commission relating to pollu-
tion. ]








AND THE LAW


Comment

In addition to the powers which are given the Commis-
sion in other Sections of the Act, this Section grants to the
Commission special powers when dealing with the problem of
pollution. Provisions granting similar powers to the control-
ling agency are present in many water pollution control acts.
Cf. Ark. Stat. Ann. 47-804 (1 and 5), 47-809(b) (1955 Supp.);
Mich. Stat. Ann. 3.523; N.J.S.A. 58:10-8; Ohio Rev. Code
Ann. 6111.03 (A,B,E,J); S.C. Code 70-110 (4, 9, 11).

PART VII MISCELLANEOUS PROVISIONS

SECTION 701. [Criminal Penalties. ] Whoever violates, at-
tempts to violate, or conspires to violate any provision of this Act
or any rule, regulation, or order issued by the Commission shall,
upon conviction, be punished by a fine of not more than [$1000] [or
by imprisonment for not more than [ six] months, or by both].

Comment

See: Fla. Stat. Ann. 373.241; Miss. Code Ann.
5956-23(b); N.M. Stat. Ann. 75-7-4; Wash. Rev. Code
90.32.010. Imprisonment as a punishment is bracketed
thereby permitting the individual state to accept or reject
it.

SECTION 702. [Short Title. ] This Act may be cited as the
Model Water Use Act.

SECTION 703. [Severability. ] If any provision of this Act or
the application thereof to any person or circumstance is held in-
valid, the invalidity shall not affect other provisions or applications
of the Act which can be given effect without the invalid provision or
application, and to this end the provisions of this Act are severa-
ble.

SECTION 704. [Repeal.] [The following acts and parts of
acts are hereby repealed: .., ]

SECTION 705. [Time of Taking Effect.] This Act shall take


effect


I




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