Fullerton

This is an appeal by the State Department of Fish and Game (Department) from a judgment denying its petition for a writ of mandate to compel the State Water Resources Control Board (Board) to issue a permit for the “in-stream” appropriation of water to provide minimum flow guarantees during low months to protect the state’s beneficial interest in the fish resources of the Mattole River. The questions are whether: 1) physical control over the water is required for an “appropriation” of water; and 2) if not, whether the applicable constitutional and statutory provisions (mainly state Const., art. X, as adopted June 8, 1976; Wat. Code, § 1243, as amended by Stats. 1972,-ch. 360), are ambiguous and if so, whether the matter is one for judicial determination or one that is exclusively within the prerogative of the Legislature, as indicated by its recent enactments. For the reasons set forth below, we have concluded that some minimal actual physical use of the water is still an element of the doctrine of appropriation in this state, and in any event, the Legislature has prescribed a statutory scheme for balancing the public interest in conservation and. recreation and the…