WSP12293 - Laserfiche WebLink

Home Browse Search

n~'3'F u~~ l ~ The CalifornIa statute governing court reference procedures for determination of w~ter rights provIdes that In specified countIes. If after the adminIstratIve referee report has been fl led it appears that unrestricted pumping will induce ocean water Intrusion to the Irrepa- rable injury of the ground water supply before final judgment. the court may Issue a prelIminary Injunction e~ultably restrIcting and apportioning reduction In pumpIng subject to adjustment and compensa- tion in the final judgment. The HawaII ground water use act Is an adaptation of the "Hodel Water Use Act" prap~red at the Legislative Re.earch Center. University of Michigan Law School. WIthdrawal of water dIrectly from a designated area In which reguiatlon is needed. except for domestic use and pre- served uses. requires a permit for a specIfied perIod of years. which may be granted If water Is avaIlable for beneficial use. water resources are not thereby Im~alred. and no substantIal Interference with existing uses is Indicated. If In such area a water s~ort~ge occurs, new wells and uses may be forcidden, existing uses and facl Iltle~ modified, and water uses apportioned. limited. or rotated. In the eve~t of an emer- gency In a ground water area, the State administrative agency Is authorized to take extraordInary steps to cope with It whether or not the area Is designated. The questIon of due pro~. - In States In which the principle that ground water belongs to the publIc, suhject to appropriation, has judIcial recognition as well as statutory approval, closing the area to further approprIation In event of an overdraft Is compara~le to closing a surface stream the watars of which have been fully appropriated. As nobody has a right to appropriate water from a source all of which Is needed to satisfy prior rights, an Is~ue of denial of due process does not arise In denying new applicatIons to approprIate water from the InsufficIent supply. A different situatIon exists In a jurisdIction In which overlying landowners are held by the courts to have property rIghts In waters in theIr lands, where In case of overdraft the only uses of ground water that are protected are those then existing, and overlying landowners who have not yet made such use are prohibited from dOing so whi Ie the short- age persIsts. In such event. a judicial appraIsal of statutory restric- tions on the exercise of recognized and declared property rights, to be favorable to Its validity, must draw a distinction between denial of due process and exercise of the State's police power. Finally, It is important to note In this connection that the validity of the Arizona restrIctive act was sustained by the supreme court of that State. The court took the poSition that where the publIc Interest Is sIgnificantly Involved, the preferment of such Interest over the private Interest of an Individual Is a distinguIshing characterIstIc of exercise of the pollee power. Under the circumstances presented by a crItically overdrawn water supply, the court could not say that Invoca- tIon of the police power In administering the ground water act Involved a denial of due process. [Southwest Englneerlnq Co. v. Ernst, 79 Ariz. 403.291 Pac. (2d) 764 (19SS).] ----- - 13 -