Chapter
01. Definitions And General Provisions
02. Water Management Board And Chief Engineer
02A. Administrative Procedure For Appropriation Of Water
03. Survey And Investigation Of Water Resources [Repealed]
03A. Weather Modification Activities [Repealed]
04. Dry-Draw And Nonnavigable Stream Dams
05. Appropriation Of Water
06. Groundwater And Wells
07. Storage, Diversion And Irrigation Works
08. Eminent Domain
09. Overflow And Flooding From Wells And Distribution Works [Repealed]
10. Adjudication Of Water Rights
10A. Water Use Control Areas
11. Water Users' Associations [Transferred]
12. Organization, Boundaries And Dissolution Of Irrigation Districts [Transferred]
13. Irrigation District Projects And Operations [Transferred]
14. Irrigation District Contracts And Financing [Transferred]
15. Irrigation District Assessments And Levies [Transferred]
16. Water User Districts [Transferred]
17. South Dakota Conservancy District [Transferred]
17A. State Water Resources Management [Transferred]
18. Subdistricts Of South Dakota Conservation District [Transferred]
19. Flood-Control Works [Repealed]
20. Intrastate Drainage Projects [Transferred]
21. Drainage Assessments And Bonds [Transferred]
22. Trustee Management Of Drainage Districts [Transferred]
23. Interstate Drainage Districts [Transferred]
24. Watershed Districts [Transferred]
25. Water Pollution Control [Transferred]
26. Protection And Improvement Of Navigation [Repealed]
27. Missouri River Development [Transferred]
28. Red River Tri-State Authority [Repealed]
29. Minnesota Boundary Waters [Transferred]
30. Belle Fourche River Compact [Transferred]
31. Cheyenne River Compact [Repealed]
32. Lower Niobrara River and Ponca Creek Compact [Repealed]
46-1-1
Use of water of state--Paramount interest of people--Conversion to public use.
46-1-2
Development of water resources for public benefit.
46-1-3
Water as property of people--Appropriation of right to use.
46-1-4
Beneficial use of water resources--Prevention of waste--Right to water from natural stream
or watercourse.
46-1-5
Domestic use of water takes precedence over appropriative rights--Governmental use.
46-1-6
Definition of terms.
46-1-7
Standards of measurement--Flow of water--Volume of water--Miner's inch.
46-1-8
Beneficial use--Measure and limit of right to use of waters.
46-1-9
Vested rights defined.
46-1-10
Vested rights acquired before July 1, 1955, validated.
46-1-11
Violations of water use laws as misdemeanors--Civil fine in addition--Each day as separate
violation--Exemption of board and commission actions.
46-1-12
Suspension or cancellation of permit or license.
46-1-13
Grant of water right for use outside state.
46-1-14
Terms and conditions of permits and licenses--Amendment.
46-1-15
Permit required for appropriation of waters.
46-1-16
Authority of chief engineer to issue permits--Scheduling application.
46-1-1. Use of water of state--Paramount interest of people--Conversion to public use.
It is hereby declared that the people of the state have a paramount interest in the use of all the water of the state and that the state shall determine what water of the state, surface and underground, can be converted to public use or controlled for public protection.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0101 (3).
46-1-2. Development of water resources for public benefit.
It is hereby declared that the protection of the public interest in the development of the water resources of the state is of vital concern to the people of the state and that the state shall determine in what way the water of the state, both surface and underground, should be developed for the greatest public benefit.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0101 (4); SL 1972, ch 237, § 1; SL 1978, ch 323, § 1.
46-1-3. Water as property of people--Appropriation of right to use.
It is hereby declared that all water within the state is the property of the people of the state, but the right to the use of water may be acquired by appropriation as provided by law.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0101 (2); SL 1983, ch 314, § 1.
46-1-4. Beneficial use of water resources--Prevention of waste--Right to water from natural stream or watercourse.
It is hereby declared that, because of conditions prevailing in this state, the general welfare requires that the water resources of the state be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable method of use of water be prevented, and that the conservation of such water is to be exercised with a view to the reasonable and beneficial use of the water in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or watercourse in this state is limited to an amount of water reasonably required for the beneficial use to be served, and such right does not extend to the waste or unreasonable use or unreasonable method of diversion of water.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0101 (1); SL 2011, ch 165, § 254.
46-1-5. Domestic use of water takes precedence over appropriative rights--Governmental use.
It is the established policy of this state:
(1) That the use of water for domestic purposes is the highest use of water and takes precedence over all appropriative rights, if it is exercised in a manner consistent with public interest as provided in § 46-1-2;
(2) That the state may, through its institutions, facilities, and properties, and a water distribution system may acquire and hold rights to use water, which rights shall be protected to the fullest extent necessary for existing and future uses, but neither the state nor any water distribution system may acquire or hold any right to waste any water, to use water for other than its own purposes or to prevent the appropriation and application of water in excess of its reasonable and existing needs for useful purposes by other persons, subject to the rights of the state or a water distribution system to apply the water to use whenever necessity therefor exists.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0101 (5); SL 1966, ch 259, § 1; SL 1972, ch 237, § 2; SL 1983, ch 314, § 2.
46-1-6. Definition of terms.
Terms used in this title mean:
(1) "Artesian water," any confined groundwater that is under sufficient pressure to rise above its confining bed;
(2) "Artesian well," any well drilled into artesian waters which flows naturally or is pumped by mechanical means;
(3) "Beneficial use," any use of water within or outside the state, that is reasonable and useful and beneficial to the appropriator, and at the same time is consistent with the interests of the public of this state in the best utilization of water supplies;
(4) "Board," the Water Management Board created by § 1-41-15;
(5) "Chief engineer," the officer employed pursuant to § 46-2-3, or an authorized representative;
(6) "Department," the Department of Agriculture and Natural Resources;
(7) "Domestic use," use of water not exceeding eighteen gallons per minute on an average daily basis, except for larger domestic wells in operation before July 1, 1983, by an individual, or by a family unit or household, for drinking, washing, sanitary, and culinary purposes and other ordinary household purposes; irrigation of a noncommercial family garden, trees, shrubbery, or orchard not greater in area than one acre; eighteen gallons per minute or less for uses in schools, parks, and other public recreation areas; geothermal heat for a single household; or noncommercial on-farm alcohol production. The use of water supplied by a water distribution system for the preceding purposes, for the occupants of schools, hospitals, and other custodial care facilities and for fire protection is a domestic use as against appropriative rights having a priority after June 30, 1978. Stock watering is a domestic use. Use of water not exceeding eighteen gallons per minute on an average daily basis for livestock in a confinement operation, including water for drinking, sanitary and general welfare purposes and for like purposes by those caring for the livestock, is a domestic use. Use of groundwater by water distribution systems, except for irrigation purposes is a domestic use except where groundwater and water in flowing streams constitute the same water supply source, but only to the extent the water was actually used before July 1, 1978;
(8) "Dry draw," any ravine or watercourse not having an average daily flow of at least four-tenths cubic feet per second (twenty miner's inches) of water during the period May first to September thirtieth, inclusive, except for a body of water such as a natural or publicly owned lake;
(9) "Energy industry use," the use of water in an amount in excess of one thousand acre-feet per year as a medium for carrying coal or other energy minerals, or in the extraction or refining of energy minerals;
(10) "Energy industry user," a natural person, firm, partnership, limited liability company, association, syndicate, corporation, joint venture, public entity, or state or federal agency using or supplying water for energy industry use;
(11) "Energy minerals," energy minerals as that term is defined in § 10-39A-1.1;
(12) "Groundwater," water under the surface, whatever may be the geologic reservoir in which it is standing or moving;
(13) "Large capacity well," a well capable of delivering water in excess of four one-hundredths cubic feet per second or eighteen gallons per minute;
(14) "Municipal use," the use of water by the state through its institutions, facilities, and properties or by a municipality, and, with regard to municipal rights having a priority before July 1, 1978, by the inhabitants of the municipality, for household, custodial care, and fire protection purposes, whether supplied by the government or by a privately owned public utility or other agency, primarily to promote the life, safety, health, comfort, and business pursuits of the state, municipality and the inhabitants of the municipality. The term does not include the irrigation of crops on a commercial scale, even within the limits of the state institution, facility, property, or municipality, nor does it include large recreational uses such as lakes;
(15) "Person," a natural person, a partnership, an association, a corporation, a municipality, the State of South Dakota, any political subdivision of the state, and any agency of the federal government;
(16) "Secretary," the secretary of the Department of Agriculture and Natural Resources;
(17) "Water distribution system," a system of piping, valves, storage tanks, pumps, and appurtenances by which water is conveyed for domestic or municipal use by a common distribution system, including a municipality as defined in § 9-1-1, a nonprofit rural water supply company as defined in § 10-36A-1, a water user district as defined in § 46A-9-2, a sanitary district as defined in chapter 34A-5, or homes, including mobile homes as defined in § 32-3-1, and manufactured homes as defined in § 34-34A-1.1 supplied by a common distribution system;
(18) "Well," an artificial excavation or opening in the ground, made by means of digging, boring, drilling, jetting, or by any other artificial method, for the purpose of obtaining groundwater. Any series of openings, borings, or drillings developed and pumped collectively by a single pump unit shall be considered as one well;
(19) "Well driller," any person or persons engaged in the commercial drilling or construction, redrilling, and rebuilding of wells in this state.
Source: SL 1955, ch 430, § 1; SL 1955, ch 431, § 1; SDC Supp 1960, §§ 61.0102, 61.0401 (1) to (9); SL 1966, ch 259, § 2; SL 1972, ch 237, §§ 3, 4; SL 1973, ch 279, § 1; SL 1978, ch 314, §§ 1, 2; SL 1981 (2d SS), ch 1, §§ 2, 8; SL 1982, ch 309, § 2; SL 1983, ch 314, §§ 3 to 8; SL 1987, ch 324; SL 1989, ch 382; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1994, ch 351, § 111; SL 2012, ch 213, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 53, eff. Apr. 19, 2021.
46-1-7. Standards of measurement--Flow of water--Volume of water--Miner's inch.
The standard of the measurement of the flow of water shall be the cubic foot per second of time; and the standard of measurement of the volume of water shall be the acre-foot, being the amount of water upon an acre covered one foot deep, equivalent to forty-three thousand five hundred sixty cubic feet. The miner's inch shall be regarded as one-fiftieth of a cubic foot per second in all cases, except when some other equivalent of the cubic foot per second has been specially stated by the contract or has been established by actual measurement or use, or by court decree.
Source: SDC 1939, § 61.0138; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0124.
46-1-8. Beneficial use--Measure and limit of right to use of waters.
Beneficial use is the basis, the measure and the limit of the right to the use of waters described in this title.
Source: SL 1955, ch 430, § 1; SL 1955, ch 431, § 1; SDC Supp 1960, §§ 61.0102 (6), 61.0401 (10).
46-1-9. Vested rights defined.
The term, vested rights, used in this title means:
(1) The right of a riparian owner to continue to use water actually applied to any beneficial use on March 2, 1955, or within three years immediately before that date to the extent of the existing beneficial use made of the water;
(2) Use for domestic purposes as that term is defined in subdivision 46-1-6(7);
(3) The right of a riparian owner to take and use water for beneficial purposes if the riparian owner was engaged in the construction of works for the actual application of the water to a beneficial use on March 2, 1955, and if the works were completed and water was applied to use within a reasonable time thereafter;
(4) Rights granted before July 1, 1955, by court decree;
(5) Uses of water under diversions and applications of water before the passage of the 1907 water law and not subsequently abandoned or forfeited.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0102 (7); SL 1983, ch 314, § 9; SL 2011, ch 165, § 255.
46-1-10. Vested rights acquired before July 1, 1955, validated.
All vested rights as defined in § 46-1-9 acquired before July 1, 1955, are hereby in all respects validated.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0106.
46-1-11. Violations of water use laws as misdemeanors--Civil fine in addition--Each day as separate violation--Exemption of board and commission actions.
Unless otherwise provided in this title, any person, firm, or corporation violating any of the provisions of chapters 46-4 to 46-10, inclusive, is guilty of a Class 2 misdemeanor. In addition, a civil fine of not more than five hundred dollars may be imposed for the violation. Each day of noncompliance with the provisions of this title shall be deemed a separate violation. Administrative actions of the department or Board of Water and Natural Resources, the Water Management Board, or the conservation commission are exempt from this section.
Source: SL 1955, ch 430, § 2; SL 1955, ch 431, § 2; SDC Supp 1960, §§ 61.9920, 61.9921; SL 1977, ch 347, § 1; SL 1981, ch 316, § 11.
46-1-12. Suspension or cancellation of permit or license.
Any permit or license issued pursuant to this title may be suspended or canceled by order of the Water Management Board after a hearing pursuant to chapter 1-26 whenever the board finds that an individual permittee or licensee, or the agent or employee of either of them as the case may be, has violated any term of the permit or license. The board may suspend the permit or license for a period of up to one year for the first violation; for up to three years for the second violation; and may cancel the permit or license for a third violation.
Source: SL 1977, ch 350; SL 1983, ch 314, § 10.
46-1-13. Grant of water right for use outside state.
A water right may be granted for uses outside this state on the same basis and subject to the same terms and conditions as water rights are granted to persons for use of water within this state, subject to the principle of beneficial use as defined in subdivision § 46-1-6(3).
Source: SL 1978, ch 311; SL 1981 (2d SS), ch 1, § 11; SL 1983, ch 314, § 11.
46-1-14. Terms and conditions of permits and licenses--Amendment.
The Water Management Board may issue any permit or license subject to terms, conditions, restrictions, qualifications, quantifications, or limitations on perpetuity consistent with this chapter which it considers necessary to protect the public interest and which are related to matters within the jurisdiction of the board. Water rights issued pursuant to this section may be amended by the board and priority is retained upon amendment. Upon amendment the board may alter terms, conditions, restrictions, qualifications, or quantifications consistent with this chapter.
Source: SL 1978, ch 312; SL 1983, ch 314, § 12.
46-1-15. Permit required for appropriation of waters.
Except as otherwise provided throughout this title, no person may appropriate the waters of this state for any purpose without first obtaining a permit to do so.
Source: SL 1983, ch 314, § 13.
46-1-16. Authority of chief engineer to issue permits--Scheduling application.
The provisions of § 46-1-14 notwithstanding, the board may promulgate rules pursuant to chapter 1-26 to delegate the authority to issue permits to the chief engineer if the applicant does not contest the recommendation of the chief engineer and no person has filed a petition to oppose the application as provided in chapter 46-2A. Upon such delegation, the recommendation of the chief engineer shall become the decision of the board and the chief engineer shall issue the permit as recommended. However, the chief engineer may schedule an application, even if uncontested, for hearing by the board pursuant to chapter 46-2A upon finding that an application presents important issues of public policy or public interest that should be heard by the board.
Source: SL 1990, ch 355, § 1; SL 1992, ch 254, § 85.
CHAPTER 46-2
WATER MANAGEMENT BOARD AND CHIEF ENGINEER
46-2-1 46-2-1, 46-2-1.1. Superseded
46-2-1.2 46-2-1.2. Repealed by SL 1983, ch 314, § 14
46-2-3 Chief engineer--Employment--Advice to board.
46-2-3.1 Delegation of authority to chief engineer--Restrictions.
46-2-4 Attorneys to advise board--Employment of other counsel.
46-2-4.1 Attorneys to advise chief engineer.
46-2-5 Rules to establish procedures and practices of board.
46-2-6 46-2-6, 46-2-7. Repealed by SL 1983, ch 314, §§ 20, 21
46-2-7.1 Minutes and records of board actions.
46-2-8 46-2-8. Repealed by SL 1983, ch 13, § 18; SL 1983, ch 314, § 23
46-2-9 Powers, functions, and duties of board.
46-2-10 46-2-10. Repealed by SL 1983, ch 314, § 25
46-2-11 Regulatory authority of board.
46-2-12 46-2-12. Repealed by SL 1983, ch 314, § 27
46-2-13 Fees of department--Payment to state treasury to environment and natural resources fee fund.
46-2-14 Experimental and observation stations.
46-2-15 46-2-15, 46-2-16. Repealed by SL 2006, ch 2, §§ 30, 31.
46-2-16 46-2-16. Repealed by SL 2006, ch 2, § 31.
46-2-17 Chief engineer's general enforcement authority.
46-2-18 Chief engineer's authority to order discontinuance of water use.
46-2-19 Chief engineer's authority to enter property.
46-2-20 Cooperation with United States agencies.
46-2-21 County appropriations for geologic or groundwater studies.
46-2-22 Enforcement dry-draw dam domestic use limitations restricted.
46-2-23 Establishment of well rehabilitation and plugging subfund--Source of subfund--Expenditures--Unexpended funds--Uses of fund.
46-2-24 Prehearing officer--Duties--Rulings.
46-2-3. Chief engineer--Employment--Advice to board.
The secretary may employ a licensed engineer, trained or experienced in hydrology as chief engineer, and other personnel as may be necessary. The chief engineer shall act as adviser to the Water Management Board in all matters pertaining to the distribution and conservation of waters of the state as provided by this title.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0104; SL 1965, ch 299; SL 1983, ch 314, § 15.
46-2-3.1. Delegation of authority to chief engineer--Restrictions.
The Water Management Board may delegate to the chief engineer authority to act on its behalf concerning the quasi-judicial functions of interpreting, applying, and enforcing existing rules and laws and ordering action or abatement of action. The board may not delegate any other quasi-judicial functions as defined in § 1-32-1, except as otherwise provided by law. The board may promulgate rules pursuant to chapter 1-26 to delegate to the chief engineer the authority to issue permits pursuant to § 46-1-14.
Source: SL 1978, ch 315; SL 1983, ch 314, § 16; SL 1990, ch 355, § 2.
46-2-4. Attorneys to advise board--Employment of other counsel.
The attorney general shall assign one or more attorneys to advise the Water Management Board on legal matters and perform any and all legal duties necessary in connection with the board's work. The board may also employ other legal counsel.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0104; SL 1965, ch 299; SL 1983, ch 314, § 18.
46-2-4.1. Attorneys to advise chief engineer.
The attorney general shall assign one or more attorneys to advise the chief engineer in the exercise of his duties. No attorney may represent both the Water Management Board and the chief engineer during a hearing by the board.
Source: SL 1983, ch 314, § 17.
46-2-5. Rules to establish procedures and practices of board.
The Water Management Board may promulgate rules pursuant to chapter 1-26 to:
(1) Establish procedures for submitting applications;
(2) Establish procedures and criteria for issuing, amending, renewing, qualifying, inspecting, reinstating, suspending, and cancelling permits, rights, and licenses;
(3) Establish procedures and criteria for regulating water uses;
(4) Establish practice requirements and procedures for issuing declaratory rulings and conducting contested cases; and
(5) Establish procedures for determining ordinary high and low water marks and outlet elevations.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0103; SL 1983, ch 314, § 19; SL 1990, ch 356, § 1.
46-2-7.1. Minutes and records of board actions.
The Water Management Board shall keep accurate minutes and records of its actions. The records shall show in full all permits and licenses issued, together with all related action, and all acts or decisions of the board affecting any rights or claims to appropriate water.
Source: SL 1983, ch 314, § 22.
46-2-9. Powers, functions, and duties of board.
The Water Management Board, created in § 1-41-15, may perform all the duties and carry out all the functions assigned to it by law and shall have general supervision of the waters of the state, including measurement, appropriation, and distribution thereof, and may exercise any powers, functions, and duties as the Legislature may provide.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0104; SL 1965, ch 299; SL 1983, ch 314, § 24; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 52, eff. Apr. 19, 2021.
46-2-11. Regulatory authority of board.
The Water Management Board shall regulate and control the development, conservation, and allocation of the right to use the waters of the state according to the principles of beneficial use and priority of appropriation established by this title. The board may require reports and other information as it may deem advisable from all claimants or holders of any water permits or right.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0104; SL 1965, ch 299; SL 1983, ch 314, § 26.
46-2-13. Fees of department--Payment to state treasury to environment and natural resources fee fund.
The department shall charge and receive the following fees, to be collected in advance:
(1) For filing and examining a location notice required for construction of a structure across a dry draw or nonnavigable watercourse for the purpose of diverting or collecting storm water and of applying the water to beneficial use, fifty dollars;
(2) For filing and examining an application for a permit to appropriate water, to construct works and to put the water to beneficial use, including filing of proofs of publication, recording the permit to appropriate water and action on all other papers relating to the application up to and including issuance of the permit, five hundred dollars for the first one hundred twenty acre feet per year or fraction thereof, two hundred fifty dollars for the second one hundred twenty acre feet or fraction thereof and one hundred dollars for each subsequent one hundred twenty acre feet or fraction thereof. If the water permit is denied, seventy-five percent of the fee shall be returned to the applicant. The fee for an application to appropriate 0.1 cubic feet per second or less, to change a diversion point or to add a diversion point with no new appropriation of water is one hundred dollars. The fee for filing and examining an application to appropriate water for future use is equal to ten percent of the fee charged for an application to appropriate water, construct works and put the water to beneficial use. The fee for maintaining the effectiveness of a future use permit after the period of seven years as set out in § 46-5-38.1 is likewise equal to ten percent of the fee charges for an application to appropriate water, construct works, or put the water to beneficial use. If an application to put part or all of the water reserved by a future use permit to beneficial use is filed, the entire fee for an application to appropriate water, construct works, or put water to beneficial use shall be paid;
(3) For each inspection of constructed water use works, including diversion works, dams, pumping plants, canals, or other conduits and for confirming the application of water to beneficial use under provisions of a permit to appropriate water, including issuance of a water license, two hundred dollars. The fee shall be submitted with the application to appropriate water and be refunded if the application is denied;
(4) For officially filing a transfer of ownership of an application or permit to appropriate water, fifty dollars;
(5) For filing and examining an application to reinstate a permit filed pursuant to § 46-2A-8.1, one hundred dollars; and
(6) For filing and examining an application to claim a vested right pursuant to §§ 46-5-49 and 46-6-2, fifty dollars, which may not be refunded.
All fees received by the department shall be paid into the state treasury to the environment and natural resources fee fund established in § 1-41-23.
Source: SDC 1939, § 55.1806; SL 1959, ch 450, § 1; SDC Supp 1960, § 61.0159; SL 1977, ch 348, § 1; SL 1978, ch 316; SL 1981, ch 314; SL 1983, ch 314, §§ 28 to 28B; SL 1985, ch 345, § 1; SL 1986, ch 363, § 7; SL 1992, ch 254, § 81; SL 1993, ch 334, § 1; SL 1994, ch 23, § 11; SL 2009, ch 13, § 8; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
46-2-14. Experimental and observation stations.
The Water Management Board may establish experimental and observation stations, including observation wells and stream gauging stations, wherever they may be beneficial.
Source: SL 1983, ch 314, § 29.
46-2-17. Chief engineer's general enforcement authority.
The chief engineer may:
(1) Investigate the use of the waters of the state and compliance with the provisions of water permits, licenses, rules, regulations, and laws relating to water rights;
(2) Institute enforcement and other proceedings before the Water Management Board;
(3) Enforce orders of the board; and
(4) Perform other acts authorized by statute or regulation.
Source: SL 1983, ch 314, § 32.
46-2-18. Chief engineer's authority to order discontinuance of water use.
The provisions of chapter 1-26 notwithstanding, the chief engineer may, after appropriate investigation, issue an order to any person to shut off or limit the person's use of surface or groundwater, or to plug or otherwise control a well. The order may be issued only to protect another user who has higher or earlier priority or to cause a user of water to discontinue the use of water to which the user has no legal right. Upon a refusal to obey the order, the chief engineer may request a court of proper jurisdiction to issue a temporary restraining order or injunction to effectuate the provisions of the order.
Source: SL 1983, ch 314, § 33; SL 2011, ch 165, § 256.
46-2-19. Chief engineer's authority to enter property.
The chief engineer, in the performance of duties under this title, may enter upon the lands of any person making appropriative use of the waters of the state after the chief engineer has made a reasonable attempt to notify the owner or possessor of the property of the entry. This section does not apply to entry into a house or the curtilage of a home.
Source: SL 1983, ch 314, § 34; SL 2011, ch 165, § 257.
46-2-20. Cooperation with United States agencies.
The Water Management Board may cooperate with agencies of the United States engaged in similar surveys and investigations and in construction of works for development and use of the water supply of the state, expending for those purposes any money available for the work of the board, and may accept and use, in connection with the work of the board, the results of the work of agencies of the United States.
Source: SL 1983, ch 314, § 35.
46-2-21. County appropriations for geologic or groundwater studies.
A board of county commissioners may appropriate funds for the purpose of defraying the expense of having geologic or groundwater studies conducted within its county.
Source: SL 1983, ch 314, § 36.
46-2-22. Enforcement dry-draw dam domestic use limitations restricted.
The Water Management Board may not enforce limitations on domestic use of water from dry-draw dams complying with § 46-4-3 except in response to a written complaint from a person claiming interference with water permits or rights on the same watercourse. The dry-draw dam owner shall first be given an opportunity for a hearing before the board in accordance with the provisions of chapter 1-26.
Source: SL 1985, ch 344.
46-2-23. Establishment of well rehabilitation and plugging subfund--Source of subfund--Expenditures--Unexpended funds--Uses of fund.
There is hereby established in the state treasury a subfund of the water and environment fund to be designated as the South Dakota well rehabilitation and plugging subfund. This subfund shall consist of all moneys, including legislative appropriations; interest on the well rehabilitation and plugging subfund; and, notwithstanding the provisions of § 34A-12-15, all money collected by the department in the enforcement of the provisions of Title 46, chapter 34A-2A, or in any other action, proceeding or settlement based upon violation of the state's water laws, excluding criminal proceedings for criminal fines. Expenditures from this subfund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the subfund until appropriated by the Legislature. The Water Management Board may expend appropriated money from the well rehabilitation and plugging subfund to rehabilitate wells that were not constructed pursuant to board rules governing well construction, to rehabilitate wells that a well driller has refused to correct or to plug abandoned wells or uncontrolled flowing wells.
Source: SL 1992, ch 254, § 79.
46-2-24. Prehearing officer--Duties--Rulings.
The Water Management Board member appointed as prehearing officer pursuant to § 1-41-15.3 may act on behalf of the board concerning prehearing motions, scheduling orders, and subpoenas. Any ruling of the prehearing officer may be appealed by the affected party to the board for a board ruling. The appeal to the board shall be filed with the prehearing officer within ten days of the date of the prehearing officer's ruling or prior to the next board meeting if the meeting is less than ten days from the date of the prehearing officer's ruling. The prehearing officer may defer a ruling directly to the board.
Source: SL 2021, ch 13, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 52, eff. Apr. 19, 2021.
CHAPTER 46-2A
ADMINISTRATIVE PROCEDURE FOR APPROPRIATION OF WATER
46-2A-1 Application of provisions of chapter.
46-2A-2 Recommendation of chief engineer on application--Schedule of hearing.
46-2A-3 Recommendation of chief engineer on application--Mailing to applicant--Duties of applicant.
46-2A-4 Publication of application and recommendation of chief engineer--Time for publication--Contents of notice.
46-2A-5 Postponement of hearing on application--Time for notice.
46-2A-6 Service and filing of pleadings, petitions, and motions.
46-2A-7 Approval or disapproval of permit, license, or amendment--Applications for groundwater source determined to be fully appropriated.
46-2A-7.1 Notice of determination that groundwater source fully appropriated--Applications for future consideration.
46-2A-7.2 Date of receipt--Incomplete application--One irrigation permit application per parcel.
46-2A-7.3 Applications submitted prior to board decision that aquifer is fully appropriated or prior to July 1, 2014.
46-2A-7.4 Priority list for future unappropriated water.
46-2A-7.5 Public hearing to review groundwater source--Notice--Retention of eligibility by applicant.
46-2A-7.6 Unappropriated water to be available to held applications based on priority.
46-2A-7.7 Transfer of water permit application.
46-2A-8 Time for completion of construction and use of water--Application for lesser amount of water or variance in periods of use.
46-2A-8.1 Reinstatement of permit after expiration of time for construction--Application--Priority.
46-2A-9 Appropriation of water--When permit may be issued.
46-2A-10 Reservation for future use--When approval allowed.
46-2A-11 Flood control works--When permit may be issued.
46-2A-12 Amendment of permit or license--When granted.
46-2A-13 Well driller or well pump installer license--Issuance by chief engineer--Procedure on denial or deferral of decision.
46-2A-14 Application and permit refer to one water use system--Location to be stated.
46-2A-15 Date of receipt of application recorded--Correction of application.
46-2A-16 Validation of vested water right claim--Notice.
46-2A-17 Hearing to oppose validation--Notice.
46-2A-18 Abandonment of validated vested right.
46-2A-19 Adjustment and validation of certain interstate water right claims.
46-2A-20 Term limitation on water withdrawal from Madison formation in certain counties.
46-2A-21 Deletion of term limitation under certain conditions--Cancellation or amendment of permit.
46-2A-22 Correction of errors in published notice of vested right claims--Contents--Hearing only on filing of petition.
46-2A-23 Publication of notice to determine opposition to application or recommendation of chief engineer--Petition to contest--Notice of hearing.
46-2A-1. Application of provisions of chapter.
The provisions of this chapter apply to any application for:
(1) A permit to appropriate water;
(2) An amendment of an existing permit or license, including change in use of water or change in place of use or diversion point of water;
(3) A reservation for future use;
(4) A permit for flood control;
(5) A well driller license;
(5A) A well pump installer license;
(6) Reinstatement of a permit;
(7) A vested right claim; and
(8) Other cases as may be specified by statute.
Source: SL 1983, ch 316, § 1; SL 1985, ch 345, § 2; SL 1986, ch 363, § 4; SL 2001, ch 241, § 1.
46-2A-2. Recommendation of chief engineer on application--Schedule of hearing.
Within sixty days of receipt of a completed application, the chief engineer shall recommend in writing approval, disapproval or deferral until further notice and shall schedule the application for hearing by the Water Management Board. The recommendation shall include any terms, conditions, restrictions, qualifications, quantifications, or limitations on perpetuity which are consistent with this chapter, necessary to protect the public interest and related to matters within the jurisdiction of the chief engineer or the board.
Source: SL 1983, ch 316, § 4.
46-2A-3. Recommendation of chief engineer on application--Mailing to applicant--Duties of applicant.
In all cases except applications for a well driller license or a well pump installer license, the chief engineer shall mail a copy of the recommendation to the applicant and, if the recommendation is to approve or defer the application, a copy of the newspaper notice to be published and the times when it is to be published. If the recommendation is to deny the application, the applicant within twenty days of the date the recommendation was mailed shall state in writing whether the applicant intends to oppose the recommendation at a hearing before the Water Management Board. Failure to submit a statement of intent to oppose a recommendation to deny to the chief engineer constitutes a withdrawal of the application. If the applicant chooses to oppose the recommendation, the chief engineer shall provide the applicant notice of the hearing to be published pursuant to the provisions of § 46-2A-4. Any cost of publication shall be borne by the applicant.
Source: SL 1983, ch 316, § 5; SL 2001, ch 241, § 2.
46-2A-4. Publication of application and recommendation of chief engineer--Time for publication--Contents of notice.
Except in the case of an application for a well driller license or a well pump installer license, if a recommendation is to approve or defer an application or if an applicant has filed a petition to oppose a recommendation to deny an application, the applicant shall publish notice of the application and recommendation at least once in at least one official newspaper in each county where the water will be diverted or used or where project works will be located. The official newspaper shall be selected by the chief engineer and shall be a newspaper designated as an official newspaper pursuant to § 7-18-3. If the official newspaper is a weekly newspaper, then the notice shall also be published at least once in a daily newspaper. The daily newspaper selected by the chief engineer shall be located as near as possible to the location where the water will be diverted or used. Public notice of the application shall also be posted on the department's website until final action is taken on the application. The publication shall be at least twenty days before the first day of the Water Management Board meeting at which the matter is noticed to be heard. No application for a permit, license, or amendment may be considered and approved by the board until proof of all required publications has been filed with the chief engineer. The notice, which shall be provided by the chief engineer to the applicable newspapers, shall include the following, as applicable:
(1) The name and address of the applicant;
(2) A brief description of the project, including, where applicable, the proposed place or places of use of the water or facilities, including the point of diversion, the amount of water to be used and the purpose for which the water or facility is to be used;
(3) A brief statement describing the recommendation and the reasons for the recommendation;
(4) A statement that a person may only participate in the hearing if:
(a) The person alleges that the application, upon approval, will cause injury to the person that is unique from any injury suffered by the public in general;
(b) The person's injury concerns a matter either within the regulatory authority found in § 46-2A-9 for approval or denial of the application, or other matter concerning the application within the regulatory authority of the board to act upon as defined by §§ 46-2-9 and 46-2-11, or both; and
(c) The person files a petition to oppose the application with the chief engineer and applicant within ten days of the published notice;
(5) A statement that a petition to oppose an application shall be in writing, on a form provided by the chief engineer, and shall contain the following:
(a) A statement describing the unique injury upon approval of the application on the petitioner;
(b) The reasons for the petitioner's opposition to the application; and
(c) The name and mailing address of the petitioner or the petitioner's legal counsel;
(6) A statement that if the applicant intends to contest the recommendation, the applicant shall file a petition with the chief engineer within ten days of the published notice;
(7) A statement that any interested person may file a comment on an application with the chief engineer within ten days of the published notice, and the comment shall be filed on a form provided by the chief engineer. Filing a comment does not make the commenter a party of record to, or a participant in, the hearing;
(8) A statement telling where copies of the recommendation, application, or other information may be obtained;
(9) The time when and the place where the application will be considered by the board;
(10) A statement that the recommendation of the chief engineer is not final or binding upon the board and is subject to the approval of the board after it reaches a conclusion based on facts at the public hearing;
(11) A statement that the time of hearing will be automatically extended for at least twenty days upon written request of the applicant or any person who has filed a petition to oppose the application and a statement that any such request by the applicant or person filing a petition shall be made within ten days of the published notice; and
(12) A statement that if the applicant does not contest the recommendation of the chief engineer and no petition to oppose the application is received, the chief engineer shall act on the application pursuant to the chief engineer's recommendation and no hearing may be held before the board, unless the chief engineer makes a finding that an application, even if uncontested, presents important issues of public policy or public interest that should be heard by the board.
Source: SL 1983, ch 316, § 6; SL 1986, ch 364; SL 1990, ch 355, § 3; SL 1992, ch 254, § 84; SL 2001, ch 241, § 3; SL 2012, ch 214, § 1; SL 2021, ch 192, § 1.
46-2A-5. Postponement of hearing on application--Time for notice.
The applicant or any person who has filed a petition to oppose an application, may file a written notice to the chief engineer requesting a postponement of the date set for hearing on the application. Upon receipt of the written notice, the chief engineer shall cancel the original hearing on the application and reschedule the application for hearing by the Water Management Board not less than twenty days after the published date for hearing. The notice shall be filed within ten days of the published notice as provided for by §§ 46-2A-4 and 46-2A-23.
Source: SL 1983, ch 316, § 11; SL 2021, ch 192, § 2.
46-2A-6. Service and filing of pleadings, petitions, and motions.
The originals of all pleadings, including petitions to contest, petitions to intervene, and motions, shall be filed with the chief engineer and served upon other parties, either personally or by mail. The chief engineer shall provide copies to all Water Management Board members. Service and filing by mail shall be deemed complete upon mailing. Any comment filed pursuant to subdivision 46-2A-4(7) shall be provided by the chief engineer to all Water Management Board members and become part of the public record.
Source: SL 1983, ch 316, § 12; SL 2021, ch 192, § 3.
46-2A-7. Approval or disapproval of permit, license, or amendment--Applications for groundwater source determined to be fully appropriated.
If the Water Management Board determines, based upon the evidence presented at the hearing, that the applicable requirements for the permit, license, or amendment have been met, it shall approve the permit, license, or amendment. If the board determines that the requirements have not been met or that the evidence is insufficient to support a determination, it shall disapprove the application or defer it for further study. The chief engineer shall hold an application submitted on or after July 1, 2014, to appropriate water from a groundwater source determined to be fully appropriated by the board pursuant to § 46-6-3.1 only as provided in §§ 46-2A-7.1 to 46-2A-7.7, inclusive.
Source: SL 1983, ch 316, § 13; SL 2014, ch 214, § 1.
46-2A-7.1. Notice of determination that groundwater source fully appropriated--Applications for future consideration.
If the board determines a groundwater source to be fully appropriated pursuant to § 46-6-3.1, the chief engineer shall publish a notice within thirty days of the board's final decision at least once in at least one official newspaper in each county where the groundwater source is located. For any groundwater source determined to be fully appropriated by the board prior to July 1, 2014, notice shall also be published as provided by this section. If the official newspaper is a weekly newspaper, the notice shall also be published at least once in a daily newspaper serving the general area where the groundwater source is located and posted on the department's website until the thirty day application period is completed. The public notice shall describe the decision of the board and provide notice of a thirty day application period during which the chief engineer shall accept and hold for future consideration applications to appropriate water from the groundwater source specified in the public notice.
Source: SL 2014, ch 214, § 2.
46-2A-7.2. Date of receipt--Incomplete application--One irrigation permit application per parcel.
The date of receipt affixed to any application submitted pursuant to § 46-2A-7.1 shall be the date of the thirtieth day of the thirty day application period. An incomplete application will be returned to the applicant with notification of the deficiencies. The applicant has thirty days from the date the application is returned to complete and resubmit the application to retain the common priority date assigned to all of the applications. Any application received after the date of the board's decision and prior to the commencement of the thirty day application period shall assume the same priority date assigned to applications submitted during the thirty day application period. The chief engineer shall also accept and hold any application submitted after the thirty day application period but such an application shall take a priority date as of the date of receipt of the application. No more than one irrigation permit application may be accepted for the same acreage.
Source: SL 2014, ch 214, § 3.
46-2A-7.3. Applications submitted prior to board decision that aquifer is fully appropriated or prior to July 1, 2014.
Any application submitted prior to the board's decision that an aquifer is fully appropriated pursuant to § 46-6-3.1 or prior to July 1, 2014, is not eligible to be included in the process established by §§ 46-2A-7.1 to 46-2A-7.7, inclusive, and shall be considered by the board for final action. The board may approve, deny, or defer those applications for further study.
Source: SL 2014, ch 214, § 4.
46-2A-7.4. Priority list for future unappropriated water.
From the list of complete applications submitted pursuant to § 46-2A-7.1 and assigned a common priority date, the board shall create a priority list using a random selection process to be determined by the board. The priority list determines the order of eligibility for any unappropriated water the board may determine is available at a future date. Establishing the priority of each application by the board shall be scheduled no later than the second regularly scheduled board meeting following expiration of the thirty day application period.
Source: SL 2014, ch 214, § 5.
46-2A-7.5. Public hearing to review groundwater source--Notice--Retention of eligibility by applicant.
For any groundwater source determined to be fully appropriated pursuant to § 46-6-3.1, the board shall hold a public hearing to review the groundwater source, all permits appropriating water from that source, and all held applications at least once every five years to determine whether unappropriated water is available. The chief engineer shall publish notice of the hearing at least once in at least one official newspaper in each county where the groundwater source is located. If the official newspaper is a weekly newspaper, the notice shall also be published at least once in a daily newspaper serving the general area where the groundwater source is located and posted on the department's website until the public hearing is completed. The chief engineer shall also provide notice of the five-year review and hearing to the address included in each applicant's file. Each applicant shall notify the chief engineer in writing within thirty days of receipt of the notice whether the applicant desires to retain eligibility to appropriate any water that the board may determine is available through its review of the aquifer. A fee equal to ten percent of their original application fee shall also be remitted to the chief engineer to retain eligibility. Failure of the applicant to notify the chief engineer in writing or remit the fee constitutes withdrawal of the held application.
Source: SL 2014, ch 214, § 6.
46-2A-7.6. Unappropriated water to be available to held applications based on priority.
If the board determines that unappropriated water has become available from a fully appropriated groundwater source during the five-year review under § 46-2A-7.5, the board shall make the unappropriated water available to the applications being held by the chief engineer based on the priority established in §§ 46-2A-7.2 and 46-2A-7.4. The chief engineer shall process held applications in accordance with the notice provisions pursuant to chapter 46-2A until such time the board determines the groundwater source to again be fully appropriated in accordance with § 46-6-3.1. Any remaining applications shall continue to be held by the chief engineer for future five-year reviews by the board. If there is remaining unappropriated water available after processing all held applications, the remaining unappropriated water is subject to general appropriation as provided by law.
Source: SL 2014, ch 214, § 7.
46-2A-7.7. Transfer of water permit application.
No water permit application approved by the board pursuant to § 46-2A-7.6 may be transferred until the water has been placed to beneficial use as specified in the permit. For a permit to irrigate, no transfer of water or acreage may be approved for an amount of water or acres greater than the amount developed at the original site.
Source: SL 2014, ch 214, § 8.
46-2A-8. Time for completion of construction and use of water--Application for lesser amount of water or variance in periods of use.
Any construction necessary to put the water to beneficial use shall be completed within five years of approval of the permit and the water shall be put to beneficial use within an additional four years. The Water Management Board may, in its discretion, approve any application for a lesser amount of water or may vary the periods of annual use and the permit to appropriate water shall be regarded as limited accordingly.
Source: SL 1983, ch 316, § 16.
46-2A-8.1. Reinstatement of permit after expiration of time for construction--Application--Priority.
The Water Management Board may reinstate any water permit with a priority date after March 31, 1977, if unappropriated water is available and construction necessary to put water to beneficial use was not completed pursuant to § 46-2A-8 or 46-5-26. Any application under this section shall be made within three years of the expiration of the original construction period pursuant to chapter 46-2A. The priority date for the application to reinstate a permit shall be the date the application to reinstate is filed.
Source: SL 1985, ch 345, § 3; SL 1996, ch 263, § 1.
46-2A-9. Appropriation of water--When permit may be issued.
A permit to appropriate water may only be issued if there is reasonable probability that unappropriated water is available for the applicant's proposed use, the proposed diversion can be developed without unlawful impairment of existing domestic water uses and water rights, the proposed use is a beneficial use, and the permit is in the public interest as it pertains to matters of public interest within the regulatory authority of the Water Management Board as defined by §§ 46-2-9 and 46-2-11.
Source: SL 1983, ch 316, § 18; SL 2021, ch 192, § 4.
46-2A-10. Reservation for future use--When approval allowed.
A reservation for a future use may be approved only if there is a reasonable probability that unappropriated water is available for appropriation, that the quantity of water reserved will be needed by the entity and that the proposed use will be a beneficial use and in the public interest.
Source: SL 1983, ch 316, § 19.
46-2A-11. Flood control works--When permit may be issued.
A permit for flood control works may be issued only if the project will reduce the damage from flooding or erosion in the area proposed to be benefited, the project will not increase the likelihood or the severity of flood damages in areas other than the project area or the area proposed to be benefited, the project will not endanger human life or property and the project will not impair existing water rights, except to the extent that such rights are extinguished or compensated through agreement or exercise of the power of eminent domain.
Source: SL 1983, ch 316, § 20.
46-2A-12. Amendment of permit or license--When granted.
An amendment of an existing permit or license may be granted for a change in use, a change in point of diversion or other change only if the change does not unlawfully impair existing rights and is for a beneficial use and in the public interest.
Source: SL 1983, ch 316, § 21.
46-2A-13. Well driller or well pump installer license--Issuance by chief engineer--Procedure on denial or deferral of decision.
In the case of an application for a well driller license or a well pump installer license, the chief engineer may issue the license. If the chief engineer's recommendation is to deny the license or to defer the decision on the license, the chief engineer shall mail a copy of the recommendation to the applicant with a statement of the reasons for the recommendation and the time and place of the hearing before the Water Management Board on the recommendation, in accordance with the provisions of chapter 1-26.
Source: SL 1983, ch 316, § 10; SL 2001, ch 241, § 4.
46-2A-14. Application and permit refer to one water use system--Location to be stated.
Any application and permit to appropriate water shall refer to one water use system, the location of which shall be described in the application.
Source: SL 1955, ch 430, § 1; SL 1957, ch 490, § 1; SDC Supp 1960, § 61.0110; SDCL, § 46-5-12; SL 1983, ch 316, § 3; SL 1985, ch 345, § 5.
46-2A-15. Date of receipt of application recorded--Correction of application.
The date of receipt by the chief engineer of an application for any permit, license, or amendment under Title 46 shall be endorsed thereon. If the chief engineer determines that the application is defective in form or incomplete, it shall be returned to the applicant with a statement of the corrections, amendments, or changes required within thirty days after its receipt. Sixty days from the date the application is returned shall be allowed for refiling. If refiled, with corrections made as required within sixty days, the application shall take priority as of the date of its original filing. Any corrected application filed after the sixty-day time allowed shall be treated in all respects as an original application received on the date of its refiling.
Source: SDC 1939, § 61.0123; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0111; SDCL, § 46-5-16; SL 1983, ch 316, § 2; SL 1985, ch 345, § 7.
46-2A-16. Validation of vested water right claim--Notice.
Any claim for vested rights as defined in § 46-1-9 or 46-6-1 that has been accepted for filing by the chief engineer or Board of Water Management, prior to July 1, 1986, is eligible for validation. The chief engineer shall prepare a list based on the point of diversion of these vested rights on a county-by-county basis. By July 31, 1988, the chief engineer shall cause to be published once a week for two consecutive weeks in a newspaper of general circulation in each county a notice of these vested rights in the county in which the notice is published. The notice shall include the following:
(1) The name and address of these vested right holders;
(2) The legal description of the diversion points and, if the water is used for irrigation purposes, the legal description of the land on which the water has been used;
(3) The source of water;
(4) A statement that any person who wishes to oppose validation of any such vested right shall, within ninety days of the date of the last publication, file a petition of intent to oppose the validation with the department and with the vested right holder; and
(5) A statement that any interested person may obtain a copy of the chief engineer's vested right list for other counties from the department.
A copy of each notice published in a county shall be mailed by the chief engineer by first class mail to all known water right or water permit holders in that county. No hearing may be scheduled unless a petition of intent to oppose is filed.
Source: SL 1986, ch 363, § 1.
46-2A-17. Hearing to oppose validation--Notice.
If a petition of intent to oppose the validation of a recognized vested water right claim is filed pursuant to § 46-2A-16, the Board of Water Management shall hear and determine the matter de novo. Further published notice is not necessary, but the parties shall be notified of the hearing by first class mail. If no petition opposing validation of the recognized water right claim is filed pursuant to § 46-2A-16, the board shall issue an order validating the vested right claim.
Source: SL 1986, ch 363, § 2.
46-2A-18. Abandonment of validated vested right.
Recognition or validation of a vested right under § 46-5-49 or 46-6-2 does not protect the water right from a claim of abandonment or forfeiture based upon acts occurring in whole or in part after the date of the board's recognition or validation. The entry of an order under § 46-2A-17 does not protect the water right from a claim of abandonment or forfeiture based upon acts occurring in whole or in part after the date of the original acceptance of the filing of the claim by the chief engineer or the Board of Water Management.
Source: SL 1986, ch 363, § 3.
46-2A-19. Adjustment and validation of certain interstate water right claims.
Any person claiming to be the owner of a right to appropriate water from any source for beneficial use other than domestic uses as defined in subdivision § 46-1-6(7), on property in the State of South Dakota which was located in the state of Nebraska prior to ratification and approval of state boundary changes pursuant to § 1-2-8 shall file with the chief engineer prior to July 1, l993, any water use claim in a form and manner prescribed by the Board of Water Management. The claim shall set forth the water source, the amount of water used, when the water was used, purpose of use, the location of the diversion works and, if the water has been used for irrigation purposes, the legal description of the land upon which the water has been used and the name of the land owner. Any water right or other document issued by the state of Nebraska concerning the claimed water use shall accompany the claim. The claim shall be signed under oath, and shall be either from the claimant's own personal knowledge or on information and belief. The hearing on the claim shall be conducted pursuant to the procedures contained in this chapter. If the claim is approved by the Board of Water Management, the priority date assigned to the claim shall be either the date assigned to a water right granted in the state of Nebraska or the date water was originally put to beneficial use in the state of Nebraska, if no water right was granted. Failure to file a claim prior to July 1, 1993, waives any claim for appropriation of water.
Source: SL 1991, ch 370.
46-2A-20. Term limitation on water withdrawal from Madison formation in certain counties.
Notwithstanding §§ 46-1-14 and 46-2A-7, no water permit for construction of works to withdraw water from the Madison formation in Butte, Fall River, Custer, Lawrence, Meade and Pennington counties may be issued for a term of more than twenty years, unless the Water Management Board determines, based upon the evidence presented at a hearing that:
(1) Sufficient information is available to determine whether any significant adverse hydrologic effects on the supply of water in the Madison formation would result if the proposed withdrawal were approved; and
(2) The information, whether provided by the applicant or by other means, shows that there is a reasonable probability that issuance of the proposed permit would not have a significant adverse effect on nearby Madison formation wells and springs.
Source: SL 1992, ch 315, § 1.
46-2A-21. Deletion of term limitation under certain conditions--Cancellation or amendment of permit.
At any time during the twenty-year term set forth in § 46-2A-20, or following its expiration, the board may delete the term limitation condition upon a finding that sufficient information has become available to determine:
(1) Whether the withdrawal would cause any significant adverse effects on the supply of water in the Madison formation; and
(2) Whether the withdrawal would cause any significant adverse effects on nearby Madison formation wells and springs.
At the end of the twenty-year limitation, the board may cancel a permit or amend the permit with a new term limitation of up to twenty years, if the board is unable to make a finding after notice and hearing that sufficient information is available to delete the term limitation. The priority date for any permit issued with a term limitation or amended with an additional term limitation shall be the date the original application was filed.
Source: SL 1992, ch 315, § 2.
46-2A-22. Correction of errors in published notice of vested right claims--Contents--Hearing only on filing of petition.
Any vested right claim published for validation in accordance with § 46-2A-16 may be readvertised to correct errors in the published notice pursuant to the publication time frame and comment period established by § 46-2A-4. The contents of the notice shall conform to § 46-2A-16, as applicable, and delivery of a copy of the notice to all known water right or water permit holders is not required. No hearing may be scheduled unless a petition of intent to oppose is filed.
Source: SL 1992, ch 254, § 80.
46-2A-23. Publication of notice to determine opposition to application or recommendation of chief engineer--Petition to contest--Notice of hearing.
Following the issuance of a recommendation to approve an application pursuant to § 46-2A-2, the chief engineer may publish, at the expense of the applicant, a notice to determine whether any person opposes the application or recommendation of the chief engineer. The notice shall be published as provided for in § 46-2A-4, and the notice shall contain the information provided for in subdivisions 46-2A-4(1) to (8), inclusive, and (12). The notice is not required to refer to a board meeting or hearing date. In addition, the notice shall include a statement that if the applicant intends to contest the recommendation, the applicant shall file a petition with the chief engineer, and any interested person meeting petitioner requirements found in subdivision 46-2A-4(4) who intends to oppose the application or recommendation shall file a petition with the chief engineer and the applicant. Any petition shall be filed within ten days of the published notice. A statement shall also be included that any comment filed pursuant to subdivision 46-2A-4(7) will not cause a hearing to be held.
If no petition to contest the recommendation or to oppose an application is timely filed, the chief engineer, following receipt of proof of publication, shall act on the application consistent with the chief engineer's recommendation as provided by rules promulgated by the Water Management Board pursuant to chapter 1-26 delegating authority to the chief engineer to issue uncontested permits pursuant to §§ 46-1-16 and 46-2-3.1, without hearing by the board.
If a petition to contest the recommendation or to oppose the application is timely filed, the chief engineer shall provide notice of a board hearing pursuant to § 1-26-17. The notice shall also include a statement that the recommendation of the chief engineer is not final or binding upon the board and is subject to the decision of the board based on evidence and record of the public hearing. A statement shall also be included in the notice that the applicant or any interested person who has filed a petition to oppose an application, may file a written notice with the chief engineer requesting postponement of the original hearing date. The written notice requesting postponement shall be filed within ten days of the date of the notice scheduling the board hearing. Upon timely receipt of a written notice, the chief engineer shall cancel the original hearing and reschedule the hearing not less than twenty days after the original hearing date. Notice of hearing shall be provided by personal service or by first class mail to the applicant and parties of record.
Source: SL 1993, ch 334, § 2; SL 2011, ch 165, § 258; SL 2012, ch 214, § 2; SL 2021, ch 192, § 5.
46-3A-1 to 46-3A-3. Repealed.
46-3A-4 Superseded.
46-3A-4.1, 46-3A-5. Repealed.
46-3A-6, 46-3A-7. Superseded.
46-3A-8 to 46-3A-30. Repealed.
46-3A-31 Repealed.
46-3A-1 to 46-3A-3. Repealed by SL 2012, ch 215, §§ 1 to 3.
46-3A-4.1, 46-3A-5. Repealed by SL 2012, ch 215, §§ 4, 5.
46-3A-8 to 46-3A-30. Repealed by SL 2012, ch 215, §§ 6 to 28.
46-4-1
Dry-draw on agricultural lands--Right to construct dam--Right or permit for dam on
stream or dry-draw subject to prior appropriation.
46-4-1.1
Nonnavigable stream--Right to construct and maintain dam.
46-4-2
Upper users priority for domestic use--Exception--Contest resolution--Appeal.
46-4-3
Location notice required--Filing.
46-4-4
Location notice--Contents--Verification.
46-4-5
Vested right to water from dry-draw.
46-4-6
Time for construction and completion of dam.
46-4-7, 46-4-8.
Repealed.
46-4-1. Dry-draw on agricultural lands--Right to construct dam--Right or permit for dam on stream or dry-draw subject to prior appropriation.
Upon compliance with § 46-4-3, any person who has or holds any possession, right or title to any agricultural lands may construct a dam across a dry-draw without obtaining a permit to appropriate water unless the dam will impound more than twenty-five acre feet of water. Any water right or permit for a dam on a stream or a dry-draw for domestic or other use is subject to the doctrine of prior appropriation.
Source: SDC 1939, § 61.0133; SL 1955, ch 430, § 1; SL 1957, ch 490, § 3; SL 1959, ch 451; SDC Supp 1960, § 61.0138 (1); SL 1983, ch 318, § 1.
46-4-1.1. Nonnavigable stream--Right to construct and maintain dam.
Any person owning land through which any nonnavigable stream passes may construct and maintain a dam across the nonnavigable stream if the course of the water is not changed, vested rights are not interfered with and no land flooded other than that belonging to the owner of the dam or upon which an easement for that purpose has been secured.
Source: SL 1983, ch 318, § 2.
46-4-2. Upper users priority for domestic use--Exception--Contest resolution--Appeal.
For the uses stated in this chapter, upper users have first priority for domestic use except that it is unlawful for an upper owner to build new works that would deprive a lower owner of water which has been regularly approved under this chapter. Any contest between upper and lower dry-draw owners shall be brought to the Water Management Board first for resolution. The board's ruling may be appealed to circuit court under the provisions of chapter 1-26.
Source: SL 1957, ch 490, § 3; SDC Supp 1960, § 61.0138 (5); SL 1983, ch 318, § 3.
46-4-3. Location notice required--Filing.
Any person desiring to take advantage of any of the rights provided in this chapter shall file a location notice with the register of deeds of the county in which the right is located and shall mail a copy of the notice to the Water Management Board.
Source: SDC 1939, § 61.0133; SL 1955, ch 430, § 1; SL 1957, ch 490, § 3; SDC Supp 1960, § 61.0138 (2); SL 1983, ch 318, § 4; SL 2011, ch 165, § 263.
46-4-4. Location notice--Contents--Verification.
The location notice required under the provisions of § 46-4-3 shall contain the following information:
(1) The name and address of the landowner and of the locator;
(2) The date of the notice;
(3) The legal description of the land upon which the dam is to be located;
(4) The total number of acre-feet of water claimed for all purposes for each year;
(5) The acre-foot storage capacity of the reservoirs;
(6) The estimated surface area of the storage basin; and
(7) The number of acres of watershed above the dam.
The location notice shall be subscribed and sworn to by the applicant before a notary public or other officer having a seal.
Source: SDC 1939, § 61.0133; SL 1955, ch 430, § 1; SL 1957, ch 490, § 3; SDC Supp 1960, § 61.0138 (3); SL 1983, ch 318, § 5.
46-4-5. Vested right to water from dry-draw.
The right of any person to continue the use of water from any dry-draw is a vested right, to the extent it is not abandoned or forfeited and:
(1) The water had actually been applied to a beneficial use on March 18, 1957, or within three years immediately before that date to the extent of the actual beneficial use of the water; or
(2) The dry-draw owner was engaged in the construction of works for the actual application of water to a beneficial use on March 18, 1957, if the works were completed and water actually applied for such use within a reasonable time after that date, to the extent of actual beneficial use of the water; or
(3) The dry-draw owner filed a location notice and constructed or was in the process of constructing the dry-draw structure on December 31, 1982, if the works were completed and water actually applied to beneficial use within a reasonable time after that date to the extent of actual beneficial use.
Source: SL 1957, ch 490, § 3; SDC Supp 1960, § 61.0138 (4); SL 1981, ch 315; SL 1983, ch 318, § 6; SL 2011, ch 165, § 264.
46-4-6. Time for construction and completion of dam.
Any person appropriating the waters of any dry-draw or watercourse within this state, within sixty days after the filing of the notice provided for in §§ 46-4-3 and 46-4-4, shall begin the construction of the dam mentioned in § 46-4-1 for the storage or diversion of the waters, shall proceed diligently to complete the dam and shall divert the waters for beneficial use as rapidly as possible.
Source: SDC 1939, § 61.0133; SL 1955, ch 430, § 1; SL 1957, ch 490, § 3; SL 1959, ch 451; SDC Supp 1960, § 61.0138 (1); SL 1983, ch 318, § 7.
46-5-1
Natural flow of stream or spring--Restrictions on riparian use.
46-5-1.1
Obstruction of navigable watercourse or interference with stage, level, or
flow of public waters prohibited--Contests resolved by Water Management
Board.
46-5-1.2
Removal of obstructions built by beavers if lands flooded or water rights
impaired.
46-5-2
Nonnavigable stream--Right to construct and maintain dam.
46-5-3
Natural spring forming part of stream--Right to appropriate flow from
spring.
46-5-4
Priority of appropriative rights granted since March 7, 1907.
46-5-4.1
Validation of prior licenses.
46-5-5
Waters flowing in definite stream subject to appropriation--Beneficial use--Excessive appropriation not allowed.
46-5-6
Appropriation of water for irrigation--Limitation of amount.
46-5-6.1
Restrictions on appropriation of Missouri River water for irrigation.
46-5-6.2 to 46-5-6.10.
Repealed.
46-5-6.11
Authority of chief engineer to issue appropriation permits.
46-5-7
Priority of appropriation--Date of filing application.
46-5-8
Permit not required for domestic use--Permit required for dams on streams
or dry-draws--Registration of domestic wells.
46-5-8.1
Permit issued by board to effectuate contract between district and energy
industry user--Cancellation of permit or license.
46-5-8.2
Permit required for water distribution system.
46-5-9
Construction of works prior to obtaining permit to appropriate water
prohibited.
46-5-10
Appropriation of water--Application for permit required.
46-5-11
Application--Information required.
46-5-12
Repealed.
46-5-13
Diversion rate and amount allowed by permit.
46-5-13.1
Change of location of diversion point.
46-5-14
Water which may be reclaimed.
46-5-15
Water diverted for municipal use--Issuance of permit--Contest and appeal.
46-5-16
Repealed.
46-5-17 to 46-5-19.
Repealed.
46-5-20
Repealed.
46-5-20.1
Legislative approval required for large-scale appropriation--Eminent domain
powers denied for unauthorized appropriation.
46-5-21
Repealed.
46-5-21.1
Permits for energy industry use--Period for application of water to beneficial
use.
46-5-22
Repealed.
46-5-23
Repealed.
46-5-24
Amendment or change of plans of construction or place of diversion.
46-5-25
Diligent prosecution of construction work--Forfeiture of rights--Extension.
46-5-26
Extension of time for completion of construction or application to beneficial
use.
46-5-27 to 46-5-29.
Repealed.
46-5-1. Natural flow of stream or spring--Restrictions on riparian use.
No landowner may prevent the natural flow of a stream, or of a natural spring from where it starts its definite course, or of a natural spring arising on his or her land which flows into and constitutes a part of the water supply of a natural stream, nor pursue nor pollute any of these, except as provided by § 46-5-2.
Source: SDC 1939, § 61.0101; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0137; SL 1983, ch 314, § 39; SL 2011, ch 165, § 265.
46-5-1.1. Obstruction of navigable watercourse or interference with stage, level, or flow of public waters prohibited--Contests resolved by Water Management Board.
No person may obstruct the free navigation of any navigable watercourse within this state. No person, except under lawful authority to do so, may intentionally obstruct, tamper with, or interfere with the stage, level, or flow of the public waters of this state by any means, including a ditch, drain, or dike, so that the stage, level, or flow of water in any lake, stream, river, or other public watercourse is raised or lowered or its natural flow interfered with in any way. At the request of any person, unit of local government, or political subdivision of the state, any contest pertaining to the restrictions set forth in this section may be brought to the Water Management Board for resolution. The board may require the parties to any contested case under this section to submit the matter for mediation prior to a hearing before the board. Mediation may be informal or through a trained professional mediator as may be directed by the board. All costs of mediation shall be equally shared by the parties unless the parties agree to some other apportionment of costs. The parties shall report to the board at its next regularly scheduled meeting the status of the mediation. If the parties are unable to resolve the matter through mediation, the matter shall be submitted to the board for resolution by contested case hearing. The board's ruling may be appealed to the circuit court under the provisions of chapter 1-26.
Source: SDC 1939, § 13.1615; SL 1955, ch 435; SDC Supp 1960, § 13.4522; SDCL, §§ 46-26-1, 46-26-2; SL 1983, ch 314, § 38; SL 1996, ch 264.
46-5-1.2. Removal of obstructions built by beavers if lands flooded or water rights impaired.
No person owning land through which a watercourse passes may prohibit the removal of obstructions built by beavers in the watercourse, if the beavers have obstructed or interfered with the flow of water through the watercourse in a manner that floods land belonging to others or impairs existing water rights. Upon written request, the Department of Game, Fish and Parks may authorize removal of the beavers.
Source: SL 1987, ch 332, § 6.
46-5-2. Nonnavigable stream--Right to construct and maintain dam.
Any person owning land through which any nonnavigable stream passes, may construct and maintain a dam across such nonnavigable stream if the course of the water is not changed, vested rights are not interfered with, and no land flooded other than that belonging to the owner of such dam or upon which an easement for such purpose has been secured.
Source: SDC 1939, § 61.0101; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0137.
46-5-3. Natural spring forming part of stream--Right to appropriate flow from spring.
Nothing in § 46-5-1 or 46-5-2 may be construed to prevent the owner of land on which a natural spring arises and which constitutes the source or part of the water supply of a definite stream from acquiring a right to appropriate the flow from the spring as provided by law for appropriation of waters.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0137; SL 1983, ch 314, § 40.
46-5-4. Priority of appropriative rights granted since March 7, 1907.
Appropriative rights to water granted since March 7, 1907, are in full force and effect and their respective priority dates retained according to valid legal records.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0108; SL 1983, ch 314, § 41.
46-5-4.1. Validation of prior licenses.
Any license issued prior to January 1, 1983, by the chief engineer or the Water Management Board is hereby cured, legalized, and validated as fully as if the license had been issued in full compliance with all existing provisions of this title.
Source: SL 1983, ch 314, § 60.
46-5-5. Waters flowing in definite stream subject to appropriation--Beneficial use--Excessive appropriation not allowed.
Subject to vested rights and prior appropriations, all waters flowing in definite streams of the state may be appropriated only as provided in chapters 46-1 to 46-10, inclusive. A water right does not constitute absolute ownership of the water, but shall remain subject to the principle of beneficial use. No appropriation in excess of the reasonable needs of the appropriators may be allowed.
Source: SDC 1939, § 61.0102; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0109; SL 1983, ch 314, § 42.
46-5-6. Appropriation of water for irrigation--Limitation of amount.
In the issuance of permits to appropriate water for irrigation or in the adjudication of rights to the use of water for such purpose, the amount allowed may not be in excess of the rate of one cubic foot of water per second for each seventy acres, or the equivalent thereof, and the volume of water diverted for use may not exceed two acre-feet per acre, delivered on the land for a specified time each year. The Water Management Board may allow a greater diversion, in volume or rate or both, if the method of irrigation, any time constraints on diversion of water, or the type of soil so requires. However, no annual volume may be greater than three acre-feet per acre delivered to the land. The above rate of one cubic foot per second for each seventy acres does not apply in cases of flood water at such times when the flow of the stream is much in excess of the total recorded and approved rights on the stream.
Source: SDC 1939, § 61.0140; SL 1955, ch 430, § 1; SL 1957, ch 490, § 2; SDC Supp 1960, § 61.0126; SL 1976, ch 274; SL 1978, ch 308; SL 1996, ch 263, § 2.
46-5-6.1. Restrictions on appropriation of Missouri River water for irrigation.
The seventy acre restriction set forth in § 46-5-6 does not apply to permits to appropriate water for irrigation from the Missouri River. The Water Management Board shall establish by rules promulgated pursuant to chapter 1-26, acreage restrictions to apply to permits to appropriate water for irrigation from the Missouri River.
Source: SDCL § 46-5-6 as added by SL 1976, ch 274; SL 2011, ch 165, § 266.
46-5-6.11. Authority of chief engineer to issue appropriation permits.
As provided in § 46-1-16, the board may delegate to the chief engineer the authority to issue a permit for the appropriation of water if the applicant does not contest the recommendation of the chief engineer and no person has filed a petition to oppose the application.
Source: SL 1990, ch 355, § 4.
46-5-7. Priority of appropriation--Date of filing application.
As between appropriators, the first in time is the first in right. The priority of the appropriation shall date from the time of filing of the application therefor in the office of the Water Management Board.
Source: SDC 1939, § 61.0102; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0109.
46-5-8. Permit not required for domestic use--Permit required for dams on streams or dry-draws--Registration of domestic wells.
Any person desiring to make reasonable domestic use of water from any source may do so without obtaining a permit from the Water Management Board, except that no person may construct a dam across any dry-draw for any purpose, including domestic use, if the dam will impound more than twenty-five acre-feet of water, without first obtaining a permit from the board. Permits for dams on streams or dry-draws for domestic or other uses are subject to the doctrine of prior appropriation. Domestic users other than water distribution systems may register a domestic well with the board to document the location and output of their water supply and the quality of its water. The registration of a domestic well is not subject to the procedures for appropriation of water under chapters 46-5, 46-6, and the procedure contained in chapter 46-2A. The fee for registration is twenty-five dollars.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0107; SL 1978, ch 319, § 1; SL 1983, ch 314, § 45.
46-5-8.1. Permit issued by board to effectuate contract between district and energy industry user--Cancellation of permit or license.
The Water Management Board may issue a permit to appropriate up to fifty thousand acre-feet of water for use per year to the South Dakota Conservancy District to effectuate the provisions of a contract executed between the district and an energy industry user under § 46A-2-19. An appropriation authorized under this section shall be licensed as provided in this chapter. Upon the receipt by the Division of Water Rights of a notice of cancellation from the district, the division shall cancel the permit or license specified in the notice.
Source: SL 1981 (2d SS), ch 1, § 5.
46-5-8.2. Permit required for water distribution system.
If water is to be conveyed to users by a water distribution system diverting more than eighteen gallons per minute, the system shall comply with the provisions of § 46-5-10.
Source: SL 1983, ch 314, § 47.
46-5-9. Construction of works prior to obtaining permit to appropriate water prohibited.
No person may begin or carry on any construction of works for storing or carrying water until a permit to appropriate the water has been issued.
Source: SDC 1939, §§ 61.9907, 61.9910; SL 1965, ch 304, § 2; SL 1981, ch 316, § 1; SL 1983, ch 314, § 46.
46-5-10. Appropriation of water--Application for permit required.
Any person intending to acquire a right to beneficial use of water shall, before starting construction or placement of works for that purpose or before taking the water from any constructed works, make an application to the Water Management Board for a permit to appropriate water, in the form required by rules promulgated pursuant to chapter 1-26 by the board.
Source: SDC 1939, § 61.0122; SL 1955, ch 430, § 1; SL 1957, ch 490, § 1; SDC Supp 1960, § 61.0110; SL 1983, ch 314, § 48; SL 1993, ch 256, § 56.
46-5-11. Application--Information required.
Water Management Board rules shall, in addition to providing the form and manner of preparing and presenting an application, require the applicant to state the amount of water, periods of annual use, and all other data necessary for proper description and limitation of the right applied for, together with such information, maps, field notes, plans, and specifications as may be necessary to show the method and practicability of construction.
Source: SDC 1939, § 61.0122; SL 1955, ch 430, § 1; SL 1957, ch 490, § 1; SDC Supp 1960, § 61.0110; SL 1983, ch 314, § 49; SL 2011, ch 165, § 267.
46-5-13. Diversion rate and amount allowed by permit.
A permit may allow diversion from a designated source of water from one or more points within an area described in the permit. However total diversion rate and amount may not exceed the rate and amount allowed by the permit.
Source: SL 1955, ch 430, § 1; SL 1957, ch 490, § 1; SDC Supp 1960, § 61.0110; SL 1983, ch 314, § 50.
46-5-13.1. Change of location of diversion point.
The location of a point of diversion may be changed or additional points of diversion may be approved if the new or additional point of diversion is from the same source of water, no additional water is appropriated, and, if the water use is for irrigation, no new land is to be irrigated. The change in location of diversion points may be allowed without application or publication pursuant to § 46-2A-4, if the chief engineer is contacted and makes a finding that the change does not increase the potential for interference with existing diversions.
Source: SL 1987, ch 327; SL 1994, ch 344.
46-5-14. Water which may be reclaimed.
Water turned into any natural or artificial watercourse for means of transport by any person entitled to the use of the water may be reclaimed below and diverted by that person, subject to existing rights, accurate allowance for losses to be made, as approved by the Water Management Board.
Source: SDC 1939, § 61.0118; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0153; SL 1983, ch 314, § 51.
46-5-15. Water diverted for municipal use--Issuance of permit--Contest and appeal.
Natural flow water of any stream appropriated or diverted for municipal use is subject to downstream senior priority water rights. Any contest between water right owners shall be brought to the Water Management Board first for resolution. The board's ruling may be appealed to circuit court under the provisions of chapter 1-26.
No water permit to appropriate natural flow of a stream by a municipality may be issued unless the board determines, based upon the evidence presented at a hearing that questions on impairment of downstream senior priority water rights have been resolved.
Source: SDC 1939, § 45.1903; SL 1993, ch 334, § 3.
46-5-20.1. Legislative approval required for large-scale appropriation--Eminent domain powers denied for unauthorized appropriation.
Any application for appropriation of water, pursuant to this chapter, in excess of ten thousand acre feet annually shall be presented by the Water Management Board to the Legislature for approval prior to the board's acting upon the application and all powers of eminent domain shall be denied any common carrier appropriating over ten thousand acre feet of water per annum which has not obtained such prior legislative approval. Legislative approval does not mandate approval by the Water Management Board and does not constitute an issuance of a water permit. This section does not apply to applications by the South Dakota Conservancy District or applications for the approval of water permits for energy industry use.
Source: SL 1975, ch 275; SL 1981 (2d SS), ch 1, § 12.
46-5-21.1. Permits for energy industry use--Period for application of water to beneficial use.
Section 46-2A-8 does not apply to permits issued to the South Dakota Conservancy District for energy industry use or to any permit or right held by an energy industry user acquired pursuant to an assignment by the district. Periods for completion of construction or application of water to beneficial use for rights transferred by the district to energy industry users shall be fixed in the instrument of transfer but may not exceed ten years from the date the contract is executed for application of water to beneficial use.
Source: SL 1981 (2d SS), ch 1, § 13; SL 1987, ch 29, § 23; SL 1987, ch 332, § 5.
46-5-24. Amendment or change of plans of construction or place of diversion.
The plans of construction or place of diversion may be amended, but no amendment may authorize any extension of time for construction beyond five years from the date of the permit, except as provided by this chapter. A change in the proposed point of diversion of water or change of construction plans shall be subject to the procedures contained in chapter 46-2A and may not be allowed to the detriment of the rights of others having valid water permits or rights to the use of the water.
Source: SDC 1939, § 61.0123; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0111; SL 1983, ch 314, § 52.
46-5-25. Diligent prosecution of construction work--Forfeiture of rights--Extension.
The work of construction shall be diligently prosecuted to completion. If one-fifth of the work is not completed within one-half the time allowed, as determined by the Water Management Board, the board may accept and approve an application for the use of any of the waters included in the permit issued to the prior applicant, and the right to use the waters under the former permit are forfeited. However, the Water Management Board shall allow an extension of time at the request of the prior applicant, equal to the time during which work was prevented by the operation of law beyond the power of the applicant to avoid. This section does not apply to permits or licenses issued under § 46-5-8.1.
Source: SDC 1939, § 61.0127; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0115; SL 1981 (2d SS), ch 1, § 15; SL 2011, ch 165, § 268.
46-5-26. Extension of time for completion of construction or application to beneficial use.
A permit may be amended by extending the time for the completion of construction, or for application to beneficial use, for a reasonable time, but only on account of delays due to physical or engineering difficulties which could not have been reasonably anticipated, due to operation of law beyond the power of the applicant to avoid, or due to other exigent circumstances identified by the Water Management Board.
Source: SDC 1939, § 61.0132; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0120; SL 1983, ch 314, § 53.
46-5-30. Inspection of works by chief engineer before use--Authority to require changes.
Within a reasonable time before the date set for the application of the water to a beneficial use, the chief engineer shall inspect the works, if any, after due notice to the holder of the permit. If the works are not properly and safely constructed, the chief engineer may require the necessary changes to be made within a reasonable time.
Source: SDC 1939, § 61.0131; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0119; SL 1983, ch 314, § 57.
46-5-30.1. License issued by chief engineer.
Upon completion of an inspection, upon completion of any required changes and upon payment of any applicable fees, the chief engineer shall issue a license to appropriate water to the extent and under the conditions of the actual application of water to beneficial use, but he may not extend the rights described in the permit. No permit holder may divert water until the assessed license fee has been paid.
Source: SL 1983, ch 314, § 58.
46-5-30.2. Limitations on rights given by permit or license.
Neither a permit to appropriate water nor a license to appropriate water may become a right to use the water for any purpose or in any manner other than that specified on the permit or license, unless amended pursuant to the provisions of this title.
Source: SL 1983, ch 314, § 59.
46-5-30.3. Sale or transfer of application, permit, or license--Notice to chief engineer.
Notice of any sale, grant, lease, conveyance, or other transfer of an application, permit, or license to appropriate water under the provisions of this title shall be filed with the chief engineer within ninety days.
Source: SL 1983, ch 314, § 66; SL 2008, ch 230, § 1.
46-5-30.4. Amendment of permits or rights.
Subject to the limitations in §§ 46-5-33 and 46-5-34 governing changes in irrigation rights from one parcel of land to another, any water permit or right holder may apply for a change of use of the water, a change of location of the use or other amendment to the permit or right. Permits or rights may be amended pursuant to the procedure contained in chapter 46-2A. Priority shall be retained upon amendment. An amendment of a water permit or right may not increase the rate of diversion or increase the volume of water to be appropriated under the original water permit or right. The amendment may not impair existing rights.
Source: SL 1983, ch 314, § 67.
46-5-30.5. Unpermitted acreage developed for irrigation--Requirement.
Acreage developed for irrigation outside of the acreage described on the permit may be licensed pursuant to § 46-5-30.1, if no increase occurs in either permitted acreage or water appropriated. The unpermitted acreage shall be contiguous to the permitted acreage, owned by the same property owner, and developed as part of the original irrigation project within the time period designated for completion of works. The unpermitted acreage added to a license under this section retains the priority date assigned to the original permit. Licensing of the unpermitted acreage may occur without application or publication pursuant to § 46-2A-4, if the chief engineer makes a finding that existing water rights will not be impaired and the overall project, as developed, is consistent with the original application. This section does not apply to the transfer of licensed acreage from one parcel of land to another as provided for by § 46-5-34.
Source: SL 1996, ch 263, § 5.
46-5-31. Change of use or place of diversion.
Any appropriator of water may use the water for purposes other than for which it was appropriated, or may change the place of diversion, storage, or use, in a manner and under conditions approved by the Water Management Board, except that changes in irrigation permits shall be as prescribed by §§ 46-5-34 to 46-5-36, inclusive.
Source: SDC 1939, § 61.0142; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0129; SL 1983, ch 314, § 61.
46-5-31.1. Abandoned permitted irrigation use--Stock watering permitted.
If permitted irrigation use from a storage dam is abandoned or forfeited but the storage dam is used for stock watering, stock watering may be added to the license or permit upon the request of the permit or license holder. A license or permit modified under this section retains the priority date of the original license or permit. This addition of stock watering to the license or permit may occur without application or publication pursuant to § 46-2A-4, if no diversion is made from the stock dam and the chief engineer makes a finding that existing water rights will not be impaired.
Source: SL 1996, ch 263, § 6.
46-5-32. Assignment of application, permit, or license.
Subject to the limitations provided in §§ 46-5-33 and 46-5-34, any application, permit, or license to appropriate water, including a permit issued under § 46-5-8.1, may be assigned, but no assignment is binding, except upon the parties thereto, unless filed for record with the chief engineer. No assignment may carry with it the right to use the water for any purpose or in any manner other than that specified in the application, permit, or license without the approval of the Water Management Board. Transfer of an application to appropriate water does not confer any right to use of water. The evidence of the right to use water from any works constructed by the United States, or its duly authorized agencies, shall in like manner be filed with the chief engineer, upon assignment. A sale, grant, conveyance, assignment, lease, or other transfer of a permit or license issued under § 46-5-8.1 may be assigned only in accordance with the terms of the contract or instrument of conveyance between the district and the energy industry user.
Source: SDC 1939, § 61.0134; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0127; SL 1981 (2d SS), ch 1, § 9; SL 1983, ch 314, § 62; SL 2008, ch 230, § 2.
46-5-33. Irrigation application, permit, or right not assignable apart from land.
No application, permit, or right to appropriate water for irrigation purposes may be assigned, nor may the ownership of an application, permit, or right in any manner be transferred, apart from the land to which it is appurtenant, except in the manner provided by law. A transfer of title to land shall carry with it all rights to the use of water appurtenant to the land for irrigation purposes.
Source: SDC 1939, § 61.0134; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0127; SL 1983, ch 314, § 63; SL 2008, ch 230, § 3.
46-5-34. Irrigation rights appurtenant to land--Amendment of permit required for severance and transfer.
All water used in this state for irrigation purposes shall remain appurtenant to the land upon which it is used. However, if for any reason it should become impracticable to use all or any part of the water beneficially or economically for irrigation of any land to which the right of its use is appurtenant, all or any part of the right may be severed from the land and simultaneously transferred and become appurtenant to other land without losing priority of right previously established, subject to existing rights, upon approval of an application for an amended permit. No increase in total acres irrigated may be allowed under this section.
Source: SDC 1939, § 61.0141; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0128; SL 1983, ch 314, § 64.
46-5-34.1. Transfer of irrigation rights apart from land--Restricted purposes--Protection of other users.
The provisions of §§ 46-5-33 and 46-5-34 notwithstanding, irrigation rights may be transferred apart from the land to which they are appurtenant if they are transferred for domestic use or use within a water distribution system. Such irrigation rights may be transferred or leased in whole or in part and may be acquired only through the exercise of powers possessed independently of this section. No transfer, however, may be approved by the Water Management Board unless the transfer can be made without detriment to existing rights having a priority date before July 1, 1978, or to individual domestic users. No land which has had an irrigation right transferred from it pursuant to this section, may qualify for another irrigation right from any water source.
Source: SL 1978, ch 320; SL 1983, ch 314, § 65; SL 1989, ch 383; SL 1992, ch 314; SL 1994, ch 345.
46-5-36. Abandonment of use of water appurtenant to land--Public water subject to general appropriation.
If the owner of the land to which water has become appurtenant abandons the use of such water upon such land, such water shall become public water, subject to general appropriation.
Source: SDC 1939, § 61.0141; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0128.
46-5-37. Failure to use beneficially appropriated water--Forfeiture for nonuse--Reversion to public.
If any person entitled to the use of appropriated water fails to use beneficially any part of the water for the purpose for which it was appropriated, for a period of three years, the unused water shall revert to the public and shall be regarded as unappropriated public water.
Source: SDC 1939, § 61.0139; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0125; SL 2011, ch 165, § 269.
46-5-37.1. Abandonment or forfeiture of permits or rights--Recommendation of chief engineer for cancellation.
Upon the initiative of the chief engineer or upon petition by any interested person and after reasonable notice to the holder of the right or permit, if the holder can be located, the chief engineer may investigate whether or not a water permit or right has been abandoned or forfeited. After the investigation, the chief engineer may recommend cancellation of the permit or right for reason of abandonment or forfeiture. The recommendation, notice, and hearing shall be conducted pursuant to the procedure contained in chapter 46-2A.
Source: SL 1983, ch 314, § 69; SL 2011, ch 165, § 270.
46-5-37.2. Exceptions to forfeiture for nonuse.
The provisions of § 46-5-37 notwithstanding, no water right or permit may be forfeited for nonuse if land authorized for irrigation by a permit or right is placed under an acreage reserve or production quota program or otherwise withdrawn from use as required for participation in any federal program, if the water source is not fully appropriated, if the withdrawal from use does not prevent approval of new permits from the same source, and if the appropriated water has been applied to beneficial irrigation use prior to participation in a federal program.
Source: SL 1989, ch 384.
46-5-38. Future use of water--Entities entitled to reservation.
The following entities may reserve water for contemplated future needs upon a showing of availability of unappropriated water and future need pursuant to procedures set forth in chapter 46-2A:
(1) A state institution, facility, or agency;
(2) A municipality as defined in § 9-1-1;
(3) The South Dakota Conservancy District or a water development district as defined in § 46A-2-4;
(4) A water user district as defined in § 46A-9-2;
(5) A nonprofit rural water supply company as defined in § 10-36A-1 engaged in the treatment, distribution, and sale of water primarily for domestic purposes to a rural area. The term "rural area" may include a municipality;
(6) A sanitary district as defined in chapter 34A-5;
(7) An irrigation district as defined in chapter 46A-4; and
(8) A water project district as defined in chapter 46A-18.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0122; SL 1961, ch 456; SL 1966, ch 259, § 3; SL 1978, ch 322; SL 1983, ch 314, § 70; SL 1984 (SS), ch 1, § 60.
46-5-38.1. Future use of water--Permit required for actual use--Review of future use permits.
Water Management Board approval of an application to appropriate water for future use is a reservation of a definite amount of water with a specified priority date and is not a grant of authority to construct the works or to put the water to beneficial use. Before the time that the holder of a future use permit initiates construction of the works and puts water to beneficial use, the holder shall file an application for a water permit pursuant to the procedure contained in chapter 46-2A. If the holder of the future use permit is granted a water permit to develop only a portion of the water reserved by the future use permit, the holder shall apply for and receive an additional water permit, or permits, before developing and using the remaining water reserved in the future use permit. Permits for future uses shall be reviewed by the board every seven years and are subject to cancellation if the board determines that the permit holder cannot demonstrate a reasonable need for a future use permit.
Source: SL 1983, ch 314, § 71; SL 2011, ch 165, § 271.
46-5-39. Temporary use permits--Authorization for.
Before an entity described in § 46-5-38 is ready to use part or all of the water subject to a future use permit or permits, temporary appropriations may be made of the water. Any person desiring to appropriate the water shall make an application to the chief engineer for a temporary permit pursuant to the procedure contained in chapter 46-2A.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0122; SL 1961, ch 456; SL 1966, ch 259, § 3; SL 1983, ch 314, § 72.
46-5-40. Temporary use permits--Cancellation.
The chief engineer may not cancel a temporary use permit with less than six months notice to the permit holder. In no case may a temporary use permit be cancelled prior to the time at which facilities are constructed and water may be put to beneficial use by an entity described in § 46-5-38 holding a permit under the provisions of § 46-5-38.1. No person may acquire any right under a temporary permit to the use of water beyond the time of cancellation of the temporary use permit.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0122; SL 1961, ch 456; SL 1966, ch 259, § 3; SL 1983, ch 314, § 73.
46-5-40.1. Temporary permits for use of public water for construction, testing, or drilling purposes--Term of permit--Qualifications and limitations.
The Water Management Board may promulgate rules to authorize the chief engineer to issue temporary permits for the use of public water for construction, testing, or drilling purposes. No temporary permit is valid after December thirty-one of the year in which the permit is issued. No temporary permit may be issued if the permit interferes with or adversely affects prior appropriations or vested rights. A temporary permit shall contain qualifications and limitations necessary to protect the public interest. The issuance of a temporary permit is permission to use public water on a temporary basis and does not grant any water rights.
Source: SL 1987, ch 328, § 5.
46-5-44. United States withdrawal of unappropriated waters--Cancellation.
As soon as the Water Management Board is satisfied that the construction of works by the United States subject to a United States withdrawal approved prior to July 1, 1983, is no longer contemplated, it shall cancel its withdrawal of those waters from appropriation and the waters again shall be subject to general appropriation.
Source: SDC 1939, § 61.0137; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0123; SL 1983, ch 314, § 77.
46-5-46. Unauthorized use or waste of water or violation of permit or license prohibited.
No person may engage in unauthorized use of water, may waste water, or may violate the terms or conditions of a permit or license to appropriate water.
Source: SDC 1939, §§ 61.9907, 61.9910; SL 1965, ch 304, § 2; SL 1981, ch 316, § 2; SL 1983, ch 314, § 79.
46-5-47. Flood control--Permit required.
No person may construct facilities on any watercourse to control floods for the purpose of preventing or alleviating damage without a permit issued pursuant to the procedure contained in chapter 46-2A. The permit may be approved subject to conditions deemed necessary, including conditions to safeguard water supplies for existing water permits and licenses, to assure the safety of works, and to prevent damage to property. No person may construct works in a manner not approved in the permit for those works. This section applies only to watercourses whose flow exceeds that of a dry-draw as defined in subdivision 46-1-6(8).
Source: SL 1983, ch 314, § 80; SL 2011, ch 165, § 272.
46-5-48. Flood control--Emergency facilities authorized.
Section 46-5-47 does not apply to temporary emergency facilities constructed for the immediate protection of life or property. The chief engineer shall be promptly notified of the construction of such emergency facilities.
Source: SL 1983, ch 314, § 81.
46-5-49. Filing of vested right claim--Hearing--Mandatory filing--Waiver of right.
Any person claiming to be owner of a vested right to appropriate water from any surface water source for beneficial use other than domestic use as defined in subdivision § 46-1-6(7), may file with the chief engineer a vested right claim in a form and manner prescribed by the Board of Water Management. The claim shall set forth the amount of water used, when the water was used, purpose of use, the location of the diversion works and, if the water has been used for irrigation purposes, the legal description of the land upon which the water has been used, and the name of the owner of the land. The claim shall be signed under oath and shall be either from the claimant's own personal knowledge or on information and belief. The hearing on the vested right claim shall be conducted pursuant to the procedures contained in chapter 46-2A. If, in the course of an investigation conducted by the chief engineer pursuant to subdivision 46-2-17(1), a person asserts the existence of a vested water right, the chief engineer may require that person to file a vested right claim within ninety days pursuant to this section. Failure to file in the absence of such a requirement by the chief engineer does not constitute a waiver of a vested water right.
Source: SL 1986, ch 363, § 5.
46-5-50. Drip irrigation defined.
For purposes of § 46-5-51, the term, drip irrigation, means a planned irrigation system in which water is applied directly to the root zone of plants by means of applicators, such as orifices, emitters, porous tubing, or perforated pipe, that are operated under low pressure and are placed on or below the surface of the ground.
Source: SL 1990, ch 358, § 1; SL 2011, ch 165, § 273.
46-5-51. Permit not required for drip irrigation.
A permit to appropriate water, pursuant to §§ 46-1-15 and 46-5-10, is not required for drip irrigation, as defined in § 46-5-50, if the drip irrigation meets the following conditions:
(1) The irrigation is for noncommercial purposes; and
(2) Use of water does not exceed eighteen gallons per minute.
Source: SL 1990, ch 358, § 2; SL 1996, ch 263, § 4.
46-5-52. Noncommercial purposes defined.
For purposes of § 46-5-51, the term, noncommercial purposes, means tree plantings specifically for conservation purposes, excluding trees planted for ornamental or commercial purposes.
Source: SL 1990, ch 358, § 3.
46-6-1
Vested rights defined.
46-6-2
Filing of vested right claim by claimant of vested right to groundwater--Hearing--Mandatory filing--Waiver of right.
46-6-3
Appropriation of groundwater authorized.
46-6-3.1
Annual withdrawal of groundwater not to exceed recharge--Exception for water
distribution systems.
46-6-4
Repealed.
46-6-5
Repealed.
46-6-6
Collection, preservation, and publication of data on underground water.
46-6-6.1
Rules and regulations governing large capacity wells--Criteria and contents.
46-6-6.2, 46-6-7.
Repealed.
46-6-8
Repealed.
46-6-9
Well driller license--Fee--Issuance.
46-6-9.1
Well driller or well pump installer license--Revocation.
46-6-9.2
Well driller's license or well pump installer's license required for certain persons.
46-6-9.3
Well pump installer license--Fee--Issuance.
46-6-9.4
Certain persons exempt from well pump installer license requirements.
46-6-9.5
Well pump installers and well drillers prohibited from performing certain acts
without appropriate license.
46-6-10
Wells to be constructed so as to prevent waste--Methods of construction,
specification by board.
46-6-11
Records of well construction required.
46-6-12
Inspection of wells by chief engineer or state geologist.
46-6-13
Measurement of flow and pressure of wells by chief engineer.
46-6-14
Waste of water from large capacity well prohibited.
46-6-15
Uncontrolled artesian well--Definition--Owner to notify board of size and
location.
46-6-16
Uncontrolled artesian well from oil and gas exploration--Notice to chief engineer.
46-6-17
Repealed.
46-6-18
Plugging abandoned or forfeited well by owner--"Owner" defined.
46-6-19
Repealed.
46-6-20
Rules and regulations of board relating to wells.
46-6-21
Control of large capacity well required.
46-6-22, 46-6-23.
Repealed.
46-6-24
Liability for damages to domestic and municipal wells.
46-6-25
Domestic and municipal well protection--Enforceability--Fees and costs.
46-6-26
Permits may be denied or conditioned to protect domestic or municipal wells or
natural springs.
46-6-27
Plugging, sealing, or capping abandoned wells required--Rules.
46-6-28
Geological survey to plug unused wells.
46-6-29
Plugging or controlling large capacity well by chief engineer--Costs.
46-6-30
Order of chief engineer for proper construction or repair of well--Plugging or
controlling well--Costs.
46-6-31
Plugging or controlling well by chief engineer--Bidding provisions.
46-6-1. Vested rights defined.
The term, vested rights, as used in this chapter, means:
(1) Beneficial uses of groundwater under diversions and applications of water before February 28, 1955;
(2) The right to take and use groundwater for beneficial purposes if an owner or lawful agent was engaged in the construction of works for the actual application of water to a beneficial use on February 28, 1955, if the works are completed and water is actually applied for such use within a reasonable time after that date.
Source: SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0401 (11); SL 2011, ch 165, § 274.
46-6-2. Filing of vested right claim by claimant of vested right to groundwater--Hearing--Mandatory filing--Waiver of right.
Any person claiming to be the owner of a vested right to appropriate water from any underground source for beneficial use other than for domestic use as defined by subdivision § 46-1-6(7) may file a vested right claim with the chief engineer in a form and manner prescribed by the Board of Water Management. The claim shall set forth the amount of water used, when the water was used, purpose of use, the location of the well and, if the water has been used for irrigation purposes, the legal description of the land upon which the water has been used and the name of the owner of the land. The claim shall be signed under oath, and shall be either from the claimant's own personal knowledge or on information and belief. The hearing on the vested right claim shall be conducted pursuant to the procedures contained in chapter 46-2A. If, in the course of an investigation conducted by the chief engineer pursuant to subdivision 46-2-17(1), a person asserts the existence of a vested water right, the chief engineer may require that person to file a vested right claim within ninety days pursuant to this section. Failure to file in the absence of such a requirement by the chief engineer does not constitute a waiver of a vested water right.
Source: SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0403; SL 1983, ch 314, § 91; SL 1986, ch 363, § 6.
46-6-3. Appropriation of groundwater authorized.
Subject to vested rights and prior appropriations, groundwaters of the state may be appropriated pursuant to the procedures contained in chapter 46-2A.
Source: SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0404; SL 1971, ch 252, § 1; SL 1972, ch 237, § 5; SL 1973, ch 279, § 2; SL 1977, ch 364, § 7; SL 1978, ch 319, § 2; SL 1983, ch 314, § 92.
46-6-3.1. Annual withdrawal of groundwater not to exceed recharge--Exception for water distribution systems.
No application to appropriate groundwater may be approved if, according to the best information reasonably available, it is probable that the quantity of water withdrawn annually from a groundwater source will exceed the quantity of the average estimated annual recharge of water to the groundwater source. An application may be approved, however, for withdrawals of groundwater from any groundwater formation older than or stratigraphically lower than the greenhorn formation in excess of the average estimated annual recharge for use by water distribution systems.
Source: SL 1978, ch 323, § 2; SL 1983, ch 314, § 93.
46-6-6. Collection, preservation, and publication of data on underground water.
The collection, preservation, and publication of data with respect to the occurrence, quantity, quality, and hydraulic characteristics of underground water and the nature and identity of the subsurface geological formations in which it occurs are required by the public interest.
To this end the Water Management Board shall promulgate rules pursuant to chapter 1-26 governing the collection, preservation, and publication of such data.
Source: SDCL, § 46-6-6 as enacted by SL 1971, ch 252, § 2; SL 1972, ch 237, § 7; SL 1983, ch 314, § 95; SL 1993, ch 256, § 57.
46-6-6.1. Rules and regulations governing large capacity wells--Criteria and contents.
In addition to powers otherwise provided the Water Management Board shall promulgate rules pursuant to chapter 1-26 controlling the location and capacity of irrigation, industrial, municipal, and other large capacity wells for the purpose of ensuring or protecting water for reasonable domestic use, without the necessity of requiring maintenance of artesian head pressure in a domestic use well. In addition the rules shall provide:
(1) For regulation of the use of large capacity wells in the degree necessary to maintain an adequate depth of water for reasonable domestic needs and for a prior appropriator at his point of diversion, in wells which meet minimum well construction standards;
(2) For minimum construction standards for all wells in South Dakota which standards shall be based upon the ability of a well to produce water independent of artesian pressure;
(3) For regulation so the waste or deterioration of the quantity of groundwater through surface or underground leakage will be minimal;
(4) Standard which will provide for lowering of a water lift mechanism to a depth near the bottom of the groundwater supply or, in artesian water to a substantial depth below the geological formation confining the groundwater; and
(5) For regulation which will provide for a reasonable life of all wells.
Source: SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0402; SDCL, § 46-6-6; SL 1972, ch 237, § 6; SL 1993, ch 256, § 58.
46-6-9. Well driller license--Fee--Issuance.
Any well driller, before doing any well drilling and before contracting for any such work, shall first secure and thereafter maintain a license. The words "South Dakota Licensed Well Driller No." shall be plainly displayed at a conspicuous place on the premises where the work is being conducted. The fee for the license is two hundred dollars for a resident, and three hundred dollars for a nonresident. The same amounts shall be paid each calendar year for renewal of the license. A resident is any person whose primary residence is located in South Dakota and has not claimed residency in any other state within ninety days of filing an application to become licensed. The fee shall be paid to the Department of Agriculture and Natural Resources and deposited with the state treasurer in the environment and natural resources fee fund established in § 1-41-23. The license shall be issued pursuant to the procedures contained in chapter 46-2A. No license may be issued unless the applicant is experienced and knowledgeable in good well construction methods. The Water Management Board shall promulgate rules pursuant to chapter 1-26 establishing qualifications for well drillers.
Source: SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0415; SL 1977, ch 365; SL 1981, ch 317; SL 1983, ch 314, § 98; SL 1993, ch 256, § 59; SL 2009, ch 13, § 9; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 53, eff. Apr. 19, 2021.
46-6-9.1. Well driller or well pump installer license--Revocation.
The chief engineer may initiate an action before the Water Management Board to revoke the license of any well driller or well pump installer upon refusal by the driller to properly complete any well or well pump installation in accordance with rules governing well construction or well pump installation or upon violation of this title, or any rule or order promulgated pursuant to this title. Any action for the revocation of a well driller's or well pump installer's license shall comply with the provisions of § 1-26-19. A well driller or well pump installer whose license has been revoked may not apply for a new license sooner than six months after the effective date of the revocation.
Source: SL 1983, ch 314, § 99; SL 2001, ch 241, § 7.
46-6-9.2. Well driller's license or well pump installer's license required for certain persons.
Any person who performs work for compensation in the repair of wells or as a well pump installer shall obtain a well driller's license issued pursuant to § 46-6-9 or a well pump installer's license issued pursuant to § 46-6-9.3 before conducting or contracting for such work.
Source: SL 2001, ch 241, § 5.
46-6-9.3. Well pump installer license--Fee--Issuance.
The Water Management Board shall issue a well pump installer license to any applicant who meets the requirements specified in this section. The fee for the license is two hundred dollars for a resident, and three hundred dollars for a nonresident. The same amounts shall be paid each calendar year for renewal of the license. A resident is any person whose primary residence is located in South Dakota and has not claimed residency in any other state within ninety days of filing an application to become licensed. The fee shall be paid to the Department of Agriculture and Natural Resources and deposited by the state treasurer in the environment and natural resources fee fund established in § 1-41-23. The license shall be issued pursuant to the procedures contained in chapter 46-2A. No license may be issued unless the applicant is experienced and knowledgeable in well pump installation methods. The Water Management Board shall promulgate rules pursuant to chapter 1-26 establishing well pump installation qualifications.
Source: SL 2001, ch 241, § 6; SL 2009, ch 13, § 10; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 53, eff. Apr. 19, 2021.
46-6-9.4. Certain persons exempt from well pump installer license requirements.
Any plumbing contractor licensed under chapter 36-25, any electrical contractor licensed under chapter 36-16, and any mechanical contractor licensed under municipal ordinances may be exempt from the well pump installer licensure requirements of § 46-6-9.2.
Source: SL 2001, ch 241, § 8.
46-6-9.5. Well pump installers and well drillers prohibited from performing certain acts without appropriate license.
No licensed well pump installer or well driller may perform any electrical, plumbing, or mechanical act regulated by state law unless licensed to do so. All applicable rules and regulations of state law and municipal ordinances shall apply regarding any permit and any installation practice.
Source: SL 2001, ch 241, § 9.
46-6-10. Wells to be constructed so as to prevent waste--Methods of construction, specification by board.
The Water Management Board shall require every well to be so constructed and finished as to prevent waste of its waters or underground leakage of these waters into other reservoirs. To this end it may specify methods of construction, kinds, size, and number of casings used, valves or other control devices to regulate artesian flow, and any other device or construction which may be necessary to prevent waste through faulty construction or through corrosion.
Source: SDC 1939, § 61.0404; SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0409.
46-6-11. Records of well construction required.
On each well drilled the driller shall keep accurate records and complete a record of well construction on a form supplied by the chief engineer. If for any reason well construction is begun but not completed, the well driller shall complete the record of well construction to the extent possible. Within one month of completion of a well driller's work on a well, the well driller shall file all well construction records with the chief engineer for placement on permanent file. Access to the records is available to the public at any time during normal business hours.
Source: SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0406; SL 1971, ch 252, § 3; SL 1983, ch 314, § 100; SL 2011, ch 165, § 275.
46-6-12. Inspection of wells by chief engineer or state geologist.
The chief engineer or the state geologist may inspect wells for the purpose of making electric or radioactivity logs, caliper, leakage, and other surveys that pertain to the condition of the wells.
Source: SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0406; SL 1983, ch 314, § 101.
46-6-13. Measurement of flow and pressure of wells by chief engineer.
The chief engineer may measure the flow and pressure of any well, public or private, for the purpose of determining the increase or diminution of the flow or pressure of the well.
Source: SDC 1939, § 61.0403; SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0408; SL 1983, ch 314, § 102.
46-6-14. Waste of water from large capacity well prohibited.
No owner of property on which a large capacity artesian well is located may allow the water of the well to flow to waste if the board determines it is feasible to control the flow.
Source: SDC 1939, § 61.0405; SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0410; SL 1983, ch 314, § 103.
46-6-15. Uncontrolled artesian well--Definition--Owner to notify board of size and location.
The owner of an uncontrolled artesian well shall notify the Water Management Board in writing of the location and size of the well. An uncontrolled artesian well is one that cannot be controlled by mechanical means.
Source: SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0411; SL 2011, ch 165, § 276.
46-6-16. Uncontrolled artesian well from oil and gas exploration--Notice to chief engineer.
The Board of Minerals and Environment shall notify the chief engineer in writing of the location of any uncontrolled artesian well resulting from oil and gas exploration.
Source: SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0412; SL 1983, ch 314, § 104.
46-6-18. Plugging abandoned or forfeited well by owner--"Owner" defined.
Any abandoned or forfeited well shall be plugged by its owner so that no leaking of its waters occurs underground or over the surface. The owner of property on which an abandoned or forfeited well is located is deemed to be the owner of the well.
Source: SL 1955, ch 431, § 1; SDC Supp 1960, § 61.0412; SL 1983, ch 314, § 107.
46-6-20. Rules and regulations of board relating to wells.
The Water Management Board shall promulgate rules pursuant to chapter 1-26 providing for or directing, as appropriate:
(1) Rehabilitation of wells;
(2) Construction of wells;
(3) Prevention of underground leakage or other waste of water; and
(4) Plugging or other control of abandoned, forfeited, or uncontrolled artesian wells.
Source: SDC 1939, § 61.0414; SL 1955, ch 431, § 1; SL 1983, ch 314, § 109; SL 1993, ch 256, § 60.
46-6-21. Control of large capacity well required.
No owner or person in control of a large capacity artesian well may allow it to flow without a proper or sufficient casing or without a valve or contrivance for checking or preventing the flow of water if the Water Management Board determines that installation of a casing, valve, or contrivance is feasible. The provisions of this section also apply to any officer in charge of wells belonging to the state or any county, township, or municipality.
Source: SDC 1939, § 61.9916; SL 1981, ch 316, § 3; SL 1983, ch 314, § 112.
46-6-24. Liability for damages to domestic and municipal wells.
The failure of a well to meet standards established pursuant to § 46-6-6.1 is not a defense in any action or proceeding regarding damage, loss of water production or quality, replacement cost, or increased operating expenses incurred by a municipal or domestic use well located in a formation older than or stratigraphically lower than the greenhorn formation caused by any person using or withdrawing groundwater for mine dewatering in a formation older than or stratigraphically lower than the greenhorn formation.
Source: SL 1980, ch 304, § 1; SL 1982, ch 311.
46-6-25. Domestic and municipal well protection--Enforceability--Fees and costs.
Section 46-6-24 is enforceable in circuit court by the damaged owner or user of a domestic or municipal well. Attorney's fees, expert fees, and court costs may be awarded the plaintiff at the discretion of the court.
Source: SL 1980, ch 304, § 2.
46-6-26. Permits may be denied or conditioned to protect domestic or municipal wells or natural springs.
The Water Management Board or chief engineer pursuant to § 46-1-16 may deny or condition any permit in conformity with § 46-6-24 as is determined necessary to protect domestic wells, municipal wells, or natural springs of this state.
Source: SL 1980, ch 304, § 3; SL 1990, ch 355, § 5.
46-6-27. Plugging, sealing, or capping abandoned wells required--Rules.
If the owner of an existing well drills a replacement well and if the owner has no plan to use the existing well, the existing well is considered abandoned. The well owner shall plug the abandoned well within thirty days after the new well is ready for use. Any well that is being used or is not considered abandoned shall be sealed or capped at the surface. The Water Management Board shall promulgate rules pursuant to chapter 1-26 providing for plugging, capping, or sealing of wells to protect the health and safety of the public and to prevent contamination of groundwater by surface waters.
Source: SL 1983, ch 319, § 1; SL 1993, ch 256, § 61.
46-6-28. Geological survey to plug unused wells.
The state geological survey shall plug its test holes, observation wells, and any other of its borings or wells, pursuant to the provisions of § 46-6-27, if they are no longer being used.
Source: SL 1983, ch 319, § 2.
46-6-29. Plugging or controlling large capacity well by chief engineer--Costs.
If an owner of property fails to plug or otherwise control a large capacity artesian well on his property after receiving an order to do so from the Water Management Board under the provisions of § 46-6-14, the chief engineer may enter upon the property where the well is located and plug or otherwise control the well. The cost of plugging or controlling the well shall be borne by the owner of the property and shall be recorded with the county register of deeds as a lien against the property until paid. This section does not limit or foreclose any other remedy against the owner of the property.
Source: SL 1983, ch 314, § 106.
46-6-30. Order of chief engineer for proper construction or repair of well--Plugging or controlling well--Costs.
The chief engineer, during or immediately following construction of a well, may order the owner or driller of the well to properly construct or repair the well if the chief engineer determines that there is a serious and imminent threat to health or property. The chief engineer, upon failure of an owner or driller to comply with an order issued pursuant to this section, may enter upon the property where the well is located and plug or otherwise control the well. The cost of plugging or controlling the well shall be borne by the owner of the property and shall be recorded with the county register of deeds as a lien against the property until paid. This section does not limit any other remedy against an owner or driller of a well.
Source: SL 1983, ch 314, § 110; SL 2011, ch 165, § 277.
46-6-31. Plugging or controlling well by chief engineer--Bidding provisions.
The chief engineer, if plugging or otherwise controlling a well pursuant to the provisions of §§ 46-6-29 and 46-6-30, shall comply with the bidding provisions of chapters 5-18A and 5-18B unless the chief engineer determines that compliance with those provisions will result in harm to health or property or will result in an unreasonable waste of water.
Source: SL 1983, ch 314, § 111; SL 2011, ch 2, § 144; SL 2011, ch 165, § 278.
46-7-1
Excess capacity of works--Availability for beneficial use.
46-7-2
Headgates or other measuring devices required.
46-7-3
Repair of works required--Rules.
46-7-4
Repealed.
46-7-5
Inspection of works by chief engineer--Order for repair of unsafe works--Repair
by chief engineer--Costs--Filing of written protest--Hearing--Liability of chief
engineer and state.
46-7-5.1
Repair of unsafe works by chief engineer--Cost as lien against property--Bidding
provisions.
46-7-5.2
Breach or repair of works by chief engineer to protect human life--Cost as lien
against property--Other remedies.
46-7-5.3
Investigation of dam--Variance relating to minimum spillway design
requirements--Hearing.
46-7-5.4
Definition of terms.
46-7-5.5
Application to dams constructed before January 1, 1990--Owner and family sole
residents--Determination of flood plain.
46-7-5.6
Owner's reporting requirements where nonowner establishes habitation within
flood plain.
46-7-5.7
Privately owned high-hazard dam--Where chief engineer and state not obligated
to secure safety thereof--Owner's affidavit upon refusal to correct unsafe
condition.
46-7-5.8
Requirements as to form and content of owner's affidavit.
46-7-5.9
Board's acceptance of owner's affidavit--Conditions.
46-7-5.10
Recording requirements as to owner's affidavit.
46-7-5.11
Where privately owned high-hazard dam is subject to action by chief engineer
and state.
46-7-6
Repealed.
46-7-7 to 46-7-11.
Repealed.
46-7-12
Willful damage, destruction, or interference with works prohibited.
46-7-13
Repealed.
46-7-14
Unauthorized injury to or interference with pier, boom, or dam prohibited.
46-7-15
Removal or injury of piles prohibited.
46-7-1. Excess capacity of works--Availability for beneficial use.
The owner of any works for storage, diversion, or carriage of water which have a capacity in excess of the needs of the owner for lawful application of water to beneficial use may be required to make the excess capacity available, at reasonable rates, to any person entitled to use water for beneficial purposes. However, the excess capacity need not be made available if the use of the excess capacity would unreasonably damage existing works or require substantial modification of the works. Upon petition, the Water Management Board may determine if excess capacity can be used without unreasonable damage to existing works or without requiring substantial modification of the works. If the board's findings are positive, it may establish reasonable rates and may set the compensation to be paid to the owner for damage to existing works. This section does not obligate any person to continue operation of any works.
Source: SDC 1939, § 61.0136; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0121; SL 1983, ch 314, § 115.
46-7-2. Headgates or other measuring devices required.
Any appropriator may be required to construct and maintain a substantial headgate or other means of measurement at the point of diversion or at any other point or points as required by the Water Management Board and shall construct or install a measuring device of a design approved by the board at the most practical point or points for measuring and apportioning the water as approved in the permit or license or as determined by the board. The board may order the construction or installation of a measuring device by an appropriator and, if it is not completed within twenty days thereafter, the board may refuse to allow diversion by the appropriator. Devices not of a stationary nature shall be so arranged that they can be locked in place.
Source: SDC 1939, § 61.0143; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0130; SL 1978, ch 324; SL 1983, ch 314, § 116.
46-7-3. Repair of works required--Rules.
The owner of any works for the storage, diversion or carriage of water or for the application of water to beneficial use, including wells, shall keep the works in good repair at all times to ensure safety of the works and to prevent waste of water. The water management board may promulgate rules pursuant to chapter 1-26 to establish minimum safety standards for the design, construction, alteration, maintenance and repair of works. For the purpose of making repairs, the owner may enter upon the lands where the works are located, taking care to avoid unnecessary damage, and shall pay the owner of the lands for any actual damage which is caused.
Source: SDC 1939, § 61.0426; SL 1955, ch 431, § 1; SL 1983, ch 314, § 117; SL 1987, ch 328, § 1.
46-7-5. Inspection of works by chief engineer--Order for repair of unsafe works--Repair by chief engineer--Costs--Filing of written protest--Hearing--Liability of chief engineer and state.
The chief engineer may inspect any works described in § 46-7-3, including abandoned works, to determine whether the works are safe. If works are found to be unsafe, the chief engineer shall notify the owner and shall order the owner to make changes necessary to secure the safety of the works, allowing a reasonable time, not to exceed six months, for putting the works in a safe condition. The order may specify that if the owner fails to make the repairs in the time allowed, the chief engineer may enter the property and put the works in a safe condition. Any costs incurred shall be borne by the owner in accordance with § 46-7-5.1. The owner may contest the order of the chief engineer by filing a protest in writing with the chief engineer within twenty days of the service of the order upon the owner. Upon receiving the protest, the chief engineer shall schedule the matter for hearing with the board in accordance with the provisions of chapter 46-2A. The filing of the written protest suspends the operation of the chief engineer's order until further action by the board. The board may affirm, modify, or reverse the order of the chief engineer. No owner of unsafe works as determined by the chief engineer or, after a protest and hearing, by the board may fail or refuse to make changes necessary to secure the works' safety pursuant to the order. The chief engineer, the state, or its employees do not incur any liability, either sovereign or personal, as a result of the duties imposed by this section or other provisions related to the inspection and repair, maintenance, or alteration of works or the notification to owners of unsafe conditions.
Source: SDC 1939, § 61.0130; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0118; SL 1983, ch 314, § 119; SL 1987, ch 328, § 1A; SL 2011, ch 165, § 279.
46-7-5.1. Repair of unsafe works by chief engineer--Cost as lien against property--Bidding provisions.
Upon failure or refusal of an owner of unsafe works to make the changes necessary to secure the safety of the works pursuant to the chief engineer's order or order of the board, the chief engineer may enter upon the property where the works are located and make the necessary changes. The cost of the work shall be borne by the owner of the works and may be recorded as a lien against any property of the owner until paid. This section does not limit any other remedy against the owner of the works. The chief engineer shall comply with the bidding provisions of chapters 5-18A and 5-18B unless the chief engineer determines that compliance with those provisions will result in harm to public health or property.
Source: SL 1983, ch 314, § 121; SL 1987, ch 328, § 1B; SL 2011, ch 2, § 145; SL 2011, ch 165, § 280.
46-7-5.2. Breach or repair of works by chief engineer to protect human life--Cost as lien against property--Other remedies.
Notwithstanding the pendency of any notice, order, or protest pursuant to § 46-7-5, the chief engineer may immediately breach or repair any works if, in the chief engineer's judgment, it is necessary to protect human life from imminent danger. The cost of the work in such cases shall be borne by the owner of the works and may be recorded as a lien against any property of the owner until paid. The provisions of chapters 5-18A and 5-18B are not applicable to this section. This section does not limit any other remedy against the owner of the works.
Source: SL 1987, ch 328, § 1C; SL 2011, ch 2, § 146.
46-7-5.3. Investigation of dam--Variance relating to minimum spillway design requirements--Hearing.
Upon petition to the board by the owner of a dam, the chief engineer may investigate and conduct the necessary analysis to determine the potential for damage to downstream residents or property if a dam were to fail due to inadequate spillway capacity. After the investigation and analysis, the chief engineer may recommend that a variance to board rules relating to minimum spillway design requirements for dams be granted or denied. The recommendation, notice, and hearing before the board shall be conducted pursuant to the procedure contained in chapter 46-2A. Following the hearing, the board may grant a variance upon a finding that failure of the dam due to inadequate spillway capacity will not increase the potential for damage from flooding to downstream residents or property.
Source: SL 1987, ch 328, § 1D.
46-7-5.4. Definition of terms.
Terms used in §§ 46-7-5.5 to 46-7-5.11, inclusive, mean:
(1) "Affidavit," a written declaration under oath, made on personal knowledge, subscribed and dated by the owner in the presence of a notary public;
(2) "Flood plain," an area below the dam that has been or may be covered with water from natural runoff or from any failure of the dam;
(3) "High-hazard dam," a dam whose failure may cause loss of life; and
(4) "Immediate family," the owner, the owner's spouse, and their minor children.
Source: SL 1990, ch 357, § 1.
46-7-5.5. Application to dams constructed before January 1, 1990--Owner and family sole residents--Determination of flood plain.
The provisions of §§ 46-7-5.4 to 46-7-5.11, inclusive, only apply to privately owned high-hazard dams constructed before January 1, 1990, if the owner and the owner's immediate family are the only persons residing below the dam within the flood plain. The chief engineer shall determine the flood plain.
Source: SL 1990, ch 357, § 3; SL 2011, ch 165, § 281.
46-7-5.6. Owner's reporting requirements where nonowner establishes habitation within flood plain.
If any individual other than the owner of a high-hazard dam establishes a habitation within the flood plain, the owner shall report the name, address and location of the individual to the chief engineer within ten days.
Source: SL 1990, ch 357, § 4.
46-7-5.7. Privately owned high-hazard dam--Where chief engineer and state not obligated to secure safety thereof--Owner's affidavit upon refusal to correct unsafe condition.
Notwithstanding the provisions of §§ 46-2-9, 46-2-17, 46-7-3, 46-7-5, 46-7-5.1, 46-7-5.2, and 46-7-5.3, the chief engineer and all officers, employees, and agents of the State of South Dakota are under no obligation to secure the safety of, or take any further action with regard to, a privately owned high-hazard dam if the owner of the dam:
(1) Refuses to correct an unsafe condition identified by order of the chief engineer pursuant to § 46-7-5; and
(2) Executes an affidavit, which is accepted for filing by the Water Management Board.
Source: SL 1990, ch 357, § 2.
46-7-5.8. Requirements as to form and content of owner's affidavit.
The owner's affidavit referred to in § 46-7-5.7 shall:
(1) Be in a form prescribed and approved by the board;
(2) Identify and describe the dam in question;
(3) State the construction date of the dam;
(4) Acknowledge that the owner is aware that the unsafe condition exists;
(5) State that the owner refuses to correct the unsafe condition;
(6) Include a description of the flood plain as determined by the chief engineer;
(7) State that no one other than the owner and the owner's immediate family reside within the flood plain;
(8) Include the owner's express assumption of all liability for any claim, injury, or damage resulting from failure of the dam, specifically holding the state, the board, the department, the chief engineer, and all officers, agents, or employees of the state harmless from any liability and damages for claims, injuries, damages, and costs, including attorney's fees resulting from failure of the dam;
(9) Acknowledge that the owner is aware that the provisions of §§ 46-7-5.4 to 46-7-5.11, inclusive, only apply to privately owned high-hazard dams constructed before January 1, 1990, if the owner and the owner's immediate family are the only persons residing below the dam within the flood plain; and
(10) State that if any individual other than the owner establishes a habitation within the flood plain, the owner will report the name, address, and location of the individual to the chief engineer within ten days.
Source: SL 1990, ch 357, § 5; SL 2011, ch 165, § 282.
46-7-5.9. Board's acceptance of owner's affidavit--Conditions.
The board, based on the specific facts of each case, may impose reasonable conditions upon the acceptance of the owner's affidavit for filing if those conditions are related to the promotion of the health, safety, and welfare of any minor children, third persons, or the general public. The board shall refuse to accept any owner's affidavit for filing unless the board is satisfied that:
(1) The owner has complied with the terms of §§ 46-7-5.4 to 46-7-5.11, inclusive;
(2) The dam in question is a privately owned high-hazard dam, constructed prior to January 1, 1990; and
(3) The owner and his immediate family are the only persons residing within the flood plain.
Source: SL 1990, ch 357, § 6.
46-7-5.10. Recording requirements as to owner's affidavit.
An affidavit accepted for filing by the board, together with any conditions set by the board, shall be recorded by the owner in the office of the register of deeds in any county where the dam or flood plain are located.
Source: SL 1990, ch 357, § 7.
46-7-5.11. Where privately owned high-hazard dam is subject to action by chief engineer and state.
The provisions of § 46-7-5 shall take effect notwithstanding § 46-7-5.7, if:
(1) The owner fails to comply with §§ 46-7-5.4 to 46-7-5.11, inclusive;
(2) The owner violates any of the conditions set by the board pursuant to § 46-7-5.9; or
(3) There has been a change of conditions which takes the dam out of the operation of §§ 46-7-5.4 to 46-7-5.11, inclusive.
In addition, the board will cancel the filing and no further affidavits may be filed for the dam.
Source: SL 1990, ch 357, § 8.
46-7-12. Willful damage, destruction, or interference with works prohibited.
No person, for any purposes other than those contemplated by this title, may willfully damage, destroy, or otherwise interfere with any works for the application of water to beneficial use, for the apportionment or measurement of water or for any hydrographic study, nor may any person interfere with any person engaged in the discharge of any duties connected therewith.
Source: SDC 1939, § 61.9912; SL 1981, ch 316, § 6; SL 1983, ch 314, § 127.
46-7-14. Unauthorized injury to or interference with pier, boom, or dam prohibited.
No person may, without authority of law, interfere with any pier, boom, or dam lawfully erected or maintained upon any waters within this state, hoist any gate of a dam, whether in or about the dam, damage or destroy any dam or any embankment necessary for support of the dam or maliciously make or cause to be made any aperture or cut in the dam or embankment with intent to damage or destroy it.
Source: SDC 1939, § 13.4506; SL 1981, ch 316, § 8; SL 1983, ch 314, § 129.
46-7-15. Removal or injury of piles prohibited.
No person may maliciously draw up, remove, cut, or otherwise injure any piles fixed in the ground and used for securing any bank or dam of any river, canal, drain, aqueduct, marsh, reservoir, pool, port, dock, quay, jetty, or lock.
Source: SDC 1939, § 13.4507; SL 1983, ch 314, § 130.
46-8-1
Right of eminent domain for application or conveyance of water for beneficial use.
46-8-1.1
Limit on exercise of right of eminent domain.
46-8-1.2
Location of routes restricted.
46-8-2
Permission required for entry on land for surveys--Liability for damages.
46-8-2.1
Order of circuit court for entry on land.
46-8-3 to 46-8-5.
Repealed.
46-8-6
Multiple water conduits prohibited where single conduit sufficient.
46-8-7
Plat of route for water conduit--Certification and recording.
46-8-8
Right for location of route an easement.
46-8-9
Repealed.
46-8-10
Reasonable access to land.
46-8-11 to 46-8-15.
Repealed.
46-8-16
Right to cross public or railroad right-of-way--Construction of bridges, culverts, or
similar structures.
46-8-17
Repealed.
46-8-18
Right to cross school and public lands--Notice to commissioner.
46-8-19, 46-8-20.
Repealed.
46-8-1. Right of eminent domain for application or conveyance of water for beneficial use.
Any person may exercise the right of eminent domain in the manner provided by law to acquire as a public use any property or other rights necessary for application of water to beneficial uses or to enlarge an existing structure for conveyance of water for use in common with an existing or former owner. Application of water to beneficial use is a public use, in the public interest and of benefit to the public.
Source: SDC 1939, § 61.0103; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0156; SL 1983, ch 314, § 131.
46-8-1.1. Limit on exercise of right of eminent domain.
Any exercise of the right of eminent domain under the provisions of this chapter shall do the least possible injury to private property, consistent with sound engineering principles and with economic feasibility.
Source: SL 1983, ch 314, § 132.
46-8-1.2. Location of routes restricted.
No routes acquired under the provisions of this chapter may be located within two hundred fifty feet of a dwelling house or other buildings on the premises or across any noncommercial orchard or garden without written consent of the owner. This section does not apply to works located in public rights-of-way or to water distribution systems as defined in § 46-1-6.
Source: SL 1983, ch 314, § 134; SL 2006, ch 225, § 1.
46-8-2. Permission required for entry on land for surveys--Liability for damages.
No person may enter upon the lands of any other person without first obtaining written permission or a court order obtained pursuant to § 46-8-2.1 for the purpose of surveying or locating the most advantageous route for works necessary to put water to beneficial use. Actual damages sustained by reason of the entrance are the responsibility of the person causing the damages.
Source: SDC 1939, § 61.0416; SL 1955, ch 431, § 1; SL 1983, ch 314, § 133.
46-8-2.1. Order of circuit court for entry on land.
The circuit court for the county in which a proposed water project is located has jurisdiction to issue an order permitting entry upon land for the purpose of surveying or locating the most advantageous route for works necessary to put water to beneficial use. No order may be issued unless the petitioner can show a present intent to construct a project to put water to beneficial use.
Source: SL 1983, ch 314, § 133A.
46-8-6. Multiple water conduits prohibited where single conduit sufficient.
The right of eminent domain may not be exercised to allow two or more pipelines, canals, ditches, or other water conduits to be constructed on lands owned by any person when a single pipeline, canal, ditch, or other water conduit can feasibly convey the water.
Source: SDC 1939, § 61.0417; SL 1955, ch 431, § 1; SL 1983, ch 314, § 138.
46-8-7. Plat of route for water conduit--Certification and recording.
When the route for any pipeline, canal, ditch, or other water conduit mentioned in this chapter is located, a correct survey and plat of the route shall be made, indicating by proper description the lands over which the route is located. The plat shall be certified and recorded in the office of the register of deeds of the county or counties in which the route is located.
Source: SDC 1939, § 61.0425; SL 1955, ch 431, § 1; SL 1983, ch 314, § 139.
46-8-8. Right for location of route an easement.
The right acquired by the location of the route for any waterway mentioned in this chapter shall be an easement.
Source: SDC 1939, § 61.0425; SL 1955, ch 431, § 1; SL 1983, ch 314, § 140.
46-8-10. Reasonable access to land.
The owner of any works for application of water to beneficial use which may prevent reasonable access to lands crossed or adjacent to the works is responsible for providing reasonable access to the land. If the owner of the works does not provide reasonable access, the owner or occupant of the land may construct reasonable access and may recover the costs of constructing access from the owner of the works.
Source: SDC 1939, § 61.0428; SL 1955, ch 431, § 1; SL 1983, ch 314, § 142.
46-8-16. Right to cross public or railroad right-of-way--Construction of bridges, culverts, or similar structures.
An owner of works for the storage, carriage, or application of water to beneficial use has the right to cross any public or railroad right-of-way, subject to such reasonable conditions as may be prescribed by the board or officer having charge of the right-of-way. The owner of the works shall notify the board or officer in charge of the right-of-way in writing showing the location and character of the crossing and shall provide a plat showing the location of the proposed route across the right-of-way. The owner of the works shall bear the cost of construction of any bridge, culvert, or similar structure where it crosses the right-of-way. All bridges, culverts, or similar structures shall be constructed in accordance with pertinent provisions of law.
Source: SDC 1939, § 61.0144; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0131; SL 1983, ch 314, § 148.
46-8-18. Right to cross school and public lands--Notice to commissioner.
An owner of works for storage, carriage, or application of water to beneficial use has the right, if necessary, to cross school and public lands, subject to such reasonable conditions as may be prescribed by the commissioner of school and public lands. The owner of the works shall notify the commissioner in writing prior to the crossing. The notification shall contain a description of the works, the location of the land and a plat showing the proposed route of the works. The owner of the works shall bear the cost of construction of any device necessary to assure continued use of the land in the usual manner.
Source: SDC 1939, § 61.0431; SL 1955, ch 431, § 1; SL 1983, ch 314, § 150.
46-10-1
Action for general adjudication of water or water use rights--When attorney
general to bring.
46-10-1.1
Procedure in actions for general adjudication.
46-10-1.2
Orders in actions involving one hundred or more defendants.
46-10-2
Jurisdiction and venue of action for general adjudication.
46-10-2.1
Deposit of documents and orders with court.
46-10-2.2
Documents and orders as prima facie evidence--Certified copies admissible.
46-10-2.3
Powers and duties of court conducting general adjudication.
46-10-3
Parties to action for general adjudication.
46-10-3.1
Adding additional defendants as parties.
46-10-3.2
Commencement of action for general adjudication--Service.
46-10-3.3
Defendants numbering one hundred or more--Commencement of action--Service.
46-10-3.4
Captioning complaint for general adjudication.
46-10-4
Repealed.
46-10-4.1
Action to determine conflicting water or water use rights--Court's powers
and duties--Caption of action.
46-10-5
Action for general adjudication or to determine conflicting water rights--Copies of complaints mailed to Water Management Board.
46-10-6
Action for general adjudication or to determine conflicting rights--Proof of
notice of suit to water management board.
46-10-7
Intervention by attorney general.
46-10-8
Judgment in action for general adjudication or to determine conflicting
rights--Certified copy filed with board.
46-10-8.1
Appointment of water master to administer interim or final decree.
46-10-9 to 46-10-12.
Repealed.
46-10-13
Appeal to board from acts or decisions of water master--Appeal to circuit
court.
46-10-14 to 46-10-26.
Repealed.
46-10-27
Transferred.
46-10-28
Repealed.
46-10-1. Action for general adjudication of water or water use rights--When attorney general to bring.
It shall be the duty of the attorney general to bring an action for the general adjudication of the nature, extent, content, scope, and relative priority of the water rights and the rights to use water of all persons, or entities, public or private, on any river system and on all other sources, when in his judgment, or in the judgment of the Water Management Board, the public interests require such action.
Source: SDC 1939, § 55.1811; SL 1980, ch 305, § 1.
46-10-1.1. Procedure in actions for general adjudication.
The procedure in any case of general adjudication shall be as in other civil cases, insofar as that procedure is not inconsistent with this chapter.
Source: SL 1980, ch 305, § 15.
46-10-1.2. Orders in actions involving one hundred or more defendants.
In the conduct of actions to which § 46-10-3.3 applies, the court may make appropriate orders
(1) Providing for the limitation of service and filing, or substitutes therefor, of pleadings, briefs, orders, motions, demands, appearances, claim forms, discovery materials, and similar documents;
(2) Requiring, for the fair conduct of the action, that notice be given all parties in a reasonable manner of any document served or filed in this action;
(3) Providing for simplified discovery from any party, upon such terms and conditions as the court determines are advisable;
(4) Adopting permissive or mandatory forms for the submission of claims to water rights or rights to use water; provided, however, that a party shall not be precluded from filing an answer or other pleading in addition to said forms;
(5) Determining the course of proceedings and prescribing measures to prevent undue repetition or complication in the presentation of evidence and arguments;
(6) Dealing with similar procedural matters.
The orders may be combined with an order under § 15-6-16 and may be altered or amended from time to time as the court deems advisable.
Source: Supreme Court Rule 82-19.
46-10-2. Jurisdiction and venue of action for general adjudication.
The court in which any action involving the general adjudication of water rights or rights to use water may be properly brought, shall have exclusive jurisdiction to hear and determine all questions necessary for the adjudication of all water rights and the rights to use water within the river system and all other sources involved; and the attorney general may bring suit as provided by law in any court having jurisdiction over any part of the river system and all other sources, which shall likewise have exclusive jurisdiction for such purposes.
Source: SDC 1939, § 61.0119; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0154; SL 1980, ch 305, § 2.
46-10-2.1. Deposit of documents and orders with court.
The court conducting a general adjudication may direct the chief engineer of the Water Management Board to deposit with the court certified copies of every water permit, water license, certificate of construction, or other document or order and every cancellation of each document or order in the river system and all other sources involved, within a time set by the court. This section does not in any manner limit the powers of the court.
Source: SL 1980, ch 305, § 3; SL 2011, ch 165, § 283.
46-10-2.2. Documents and orders as prima facie evidence--Certified copies admissible.
The court conducting a general adjudication shall regard any water permit, water license, certificate of construction, or other document or order issued by or under the authority of the Water Management Board or its predecessors, including the state engineer, and not subsequently cancelled by it or under its authority or its predecessors, including the state engineer, to be prima facie evidence of the right purported to be conferred. A certified copy of any such document or order shall be admissible in evidence.
Source: SL 1980, ch 305, § 4.
46-10-2.3. Powers and duties of court conducting general adjudication.
The court conducting a general adjudication shall, in addition to exercising any other power or duty conferred by law:
(1) Confirm those rights evidenced by previous court decrees when those rights have not been forfeited, abandoned, or otherwise lost;
(2) Adjudicate the validity of all cancelled and uncancelled permits, certificates of construction, or licenses or other documents or orders purported to be granted by or under the authority of the Water Management Board or its predecessors, including the state engineer, and not heretofore adjudicated;
(3) Determine the extent and priority of and adjudicate any interest in any water right or right to the use of water of the river system or on all other sources not otherwise represented by the aforesaid permits, licenses, certificates, documents, orders, or decrees;
(4) Establish, in whatever form determined to be most appropriate by the court, one or more tabulations or lists of water rights or rights to use water which tabulations or lists may include a notation of the water right or right to use water adjudged to each party, the priority, the amount or rate, the purpose, the periods or place of use, and, as to water used for irrigation, the specific tracts of land to which it shall be appurtenant together with other conditions as may be necessary to define a right and its priority.
Source: SL 1980, ch 305, § 5.
46-10-3. Parties to action for general adjudication.
In any action for the general adjudication of the rights to use water and water rights on any river system and all other sources all those whose claims to the use of such waters or claims of water rights are of record, and all other claimants so far as they can be ascertained with reasonable diligence, shall be made parties.
Source: SDC 1939, § 61.0119; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0154; SL 1980, ch 305, § 6.
46-10-3.1. Adding additional defendants as parties.
Defendants in addition to those named in the original complaint may be added within a reasonable time and defendants may be added throughout the duration of the suit, as appropriate.
Source: SL 1980, ch 305, § 9.
46-10-3.2. Commencement of action for general adjudication--Service.
Except as provided in § 46-10-3.3 for actions in which the named defendants number one hundred or more, an action for general adjudication shall be commenced and service shall be made as in other civil cases.
Source: SL 1980, ch 305, § 8.
46-10-3.3. Defendants numbering one hundred or more--Commencement of action--Service.
An action for general adjudication is commenced by the filing of a complaint in circuit court in any case in which the named defendants number one hundred or more. In such a case personal service of a summons and complaint is not required but may be made. If personal service is not made, the court shall order service to be made by the plaintiff on named defendants by mailing a court approved notice of the action by registered or certified mail, return receipt requested. The court shall order the plaintiff to obtain service on all unnamed defendants by publication of the notice for four consecutive weeks in a newspaper published in each of the counties within which interest in rights to use of the water and water rights may be affected by the adjudication. If there is no newspaper in one or more of the counties, then publication for the counties shall be in one or more newspapers published in the state, and of general circulation within the counties. If publication is in a daily newspaper, one insertion a week is sufficient.
Source: SL 1980, ch 305, § 8; SL 1987, ch 29, § 31; SL 2011, ch 165, § 284.
46-10-3.4. Captioning complaint for general adjudication.
The complaint for such general adjudication shall be captioned: In re the general adjudication of all rights to use water and water rights in the (to be specified) river system and all other sources, State of South Dakota.
Source: SL 1980, ch 305, § 10.
46-10-4.1. Action to determine conflicting water or water use rights--Court's powers and duties--Caption of action.
The attorney general in lieu of bringing an action for a general adjudication may or any person may bring an action for the purpose of determining conflicting water rights or rights to use water. The court before which any such action may be properly brought may exercise the powers and duties set out by this chapter, as appropriate. An action for the determination of conflicting water rights shall be captioned as set forth in Title 15 of the South Dakota Codified Laws.
Source: SL 1980, ch 305, § 11.
46-10-5. Action for general adjudication or to determine conflicting water rights--Copies of complaints mailed to Water Management Board.
Whenever suit is brought for general adjudication or to determine conflicting water rights in any of the courts of this state, a copy of the complaint shall be by the complainant mailed by registered or certified letter to the Water Management Board at its office at the state capital, at the time of the first service of summons in the action, and likewise a copy of any amended complaint or cross-complaint shall be mailed in like manner to the board immediately after service thereof upon the opposing party.
Source: SDC 1939, § 55.1811; SL 1980, ch 305, § 12.
46-10-6. Action for general adjudication or to determine conflicting rights--Proof of notice of suit to water management board.
No final decree may be issued in any action for general adjudication or in an action for determination of conflicting water rights unless it appears that the water management board has had reasonable notice of the suit.
Source: SDC 1939, § 55.1811; SL 1980, ch 305, § 13.
46-10-7. Intervention by attorney general.
If, in the judgment of the Water Management Board, the public interests require action adverse to any party thereto, it may call upon the attorney general to intervene in the action. The attorney general shall then appear on behalf of the state and take whatever steps are necessary to protect the interests of the public, of the state or of any of its institutions.
Source: SDC 1939, § 55.1811; SL 1983, ch 314, § 157.
46-10-8. Judgment in action for general adjudication or to determine conflicting rights--Certified copy filed with board.
The court before which any action for general adjudication or any action for the determination of conflicting rights is conducted shall file a certified copy of any final judgment in such case with the Water Management Board.
Source: SDC 1939, § 61.0120; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0155; SL 1980, ch 305, § 14.
46-10-8.1. Appointment of water master to administer interim or final decree.
The authority of a court to appoint a water master to administer any interim or final decree relating to water, including any interim or final decree issued under the provisions of §§ 46-10-1 to 46-10-8, inclusive, is hereby granted.
Source: SL 1983, ch 314, § 178.
46-10-13. Appeal to board from acts or decisions of water master--Appeal to circuit court.
Any interested person may appeal from acts or decisions of the water master to the Water Management Board and the board shall promptly and at a stated time and place fixed by it, after due notice to the parties, hear and determine the matter in dispute. Its decision shall be final, unless an appeal is taken to the circuit court having jurisdiction, in conformity with the law governing appeals.
Source: SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0141; SL 1983, ch 314, § 162.
46-10A-1
Establishment of area--Petition of chief engineer.
46-10A-2
Establishment of area--Petition of water right holders.
46-10A-3
Identification of lands and waters in petition.
46-10A-4
Hearing on petition--Publication and notice.
46-10A-5
Approval of petition--When required.
46-10A-6
Water master--Appointment--Agent of board.
46-10A-7
Water master--Duties.
46-10A-8
Water measuring devices--Order for installation.
46-10A-9
Fee assessed--Maximum amount--Annual payment.
46-10A-10
Repealed.
46-10A-11
Violations of orders of board or water master.
46-10A-12
Petition of chief engineer to abolish area, suspend operation, change boundaries,
amend powers of or suspend water master, or adjust administration of area.
46-10A-13
Petition as in § 46-10A-12 by water rights holders.
46-10A-14
Hearing on petition under § 46-10A-12 or 46-10A-13--Publication and notice.
46-10A-15
Approval of petition under § 46-10A-12 or 46-10A-13--When required.
46-10A-16
Appeal from board actions relating to establishment or administration of area.
46-10A-1. Establishment of area--Petition of chief engineer.
The chief engineer may, after appropriate investigation, petition the Water Management Board to establish a water use control area. The petition shall be regarded as filed at the time it is signed and dated by the chief engineer.
Source: SL 1983, ch 314, § 179.
46-10A-2. Establishment of area--Petition of water right holders.
As an alternative to the provisions of § 46-10A-1, a petition to establish a water use control area may be brought before the Water Management Board when signed by water right holders representing not less than fifty percent of the total rate of diversion under permit, filed vested rights or adjudicated rights in the geographical area described in the petition.
Source: SL 1983, ch 314, § 180.
46-10A-3. Identification of lands and waters in petition.
Any petition to establish a water use control area shall identify the lands and waters proposed to be included in the area.
Source: SL 1983, ch 314, § 181.
46-10A-4. Hearing on petition--Publication and notice.
The chief engineer, upon knowledge of the filing of a valid petition to establish a water use control area, shall set the petition for hearing before the Water Management Board at the nearest reasonable date and shall publish a copy of the notice of hearing at least once a week for two successive weeks in one legal newspaper in each county in which the land included in the proposed area is found. The chief engineer shall also send notice by first class mail to all water permit holders and holders of filed vested rights or adjudicated rights in the affected area. The contents of the notice shall be as specified in § 1-26-17.
Source: SL 1983, ch 314, § 182.
46-10A-5. Approval of petition--When required.
The Water Management Board shall approve a petition to establish a water use control area if the board finds that a water use control area is in the public interest, is necessary to equitably apportion the available water supplies for use among the water right holders and is feasible.
Source: SL 1983, ch 314, § 183.
46-10A-6. Water master--Appointment--Agent of board.
Upon establishment of a water use control area, the Water Management Board, at the same hearing if feasible, shall appoint a water master, giving significant weight to the recommendations of the affected water permit or right holders. The water master shall act as agent of the board.
Source: SL 1983, ch 314, § 184.
46-10A-7. Water master--Duties.
The duties and authority of the water master shall be set out either in an order establishing the water use control area or by resolution and may include, but are not limited to, the following:
(1) Enforcement procedures for distribution of water under a court decree;
(2) Enforcement procedures for priorities and rights to use water as established in statutory law and case law;
(3) Notwithstanding the provisions of subdivisions (1) and (2), enforcement procedures for any temporary schedule of water deliveries which all affected water permit or right holders agree upon;
(4) Regulation and security of headgates and measuring devices as necessary to enforce proper distribution of water; and
(5) Other duties and authority as the Water Management Board may specify.
Source: SL 1983, ch 314, § 185.
46-10A-8. Water measuring devices--Order for installation.
The board may order installation of water measuring devices as provided in § 46-7-2 if it determines them to be necessary for proper regulation of water diversion and use among water permit or right holders in a water use control area.
Source: SL 1983, ch 314, § 186.
46-10A-9. Fee assessed--Maximum amount--Annual payment.
The Water Management Board shall assess a fee to be collected annually from each water right holder in each water use control area. The amount of the fee may not exceed twenty dollars for each cubic foot per second, or portion thereof, of the diversion capability of the water permit or right holder's diversion works plus fifty cents for each acre irrigated. Fees shall be paid to the board annually at a date set by the board. No water may be diverted by a water permit or right holder who has not paid the fee required by this section.
Source: SL 1983, ch 314, § 187.
46-10A-11. Violations of orders of board or water master.
Violation of any order of the Water Management Board or of the water master is regarded as a violation of the terms of a permit or license under the provisions of § 46-1-12.
Source: SL 1983, ch 314, § 189.
46-10A-12. Petition of chief engineer to abolish area, suspend operation, change boundaries, amend powers of or suspend water master, or adjust administration of area.
The chief engineer, after appropriate investigation, may petition the board:
(1) To abolish a water use control area;
(2) To suspend the operation of a water use control area;
(3) To change the boundaries of a water use control area;
(4) To amend the powers and duties of a water master in a water use control area;
(5) To suspend or remove any water master appointed by it; or
(6) To adjust administration of a water use control area to protect valid water permits or rights within the water use control area or affected by the exercise of water rights within the water use control area.
Source: SL 1983, ch 314, § 190.
46-10A-13. Petition as in § 46-10A-12 by water rights holders.
Any petition which may be brought by the chief engineer pursuant to the provisions of § 46-10A-12 may also be brought before the Water Management Board if the petition is signed by water rights holders representing not less than twenty-five percent of the total rate of diversion under permit, filed vested rights or adjudicated rights in the geographical area of the water use control area.
Source: SL 1983, ch 314, § 191.
46-10A-14. Hearing on petition under § 46-10A-12 or 46-10A-13--Publication and notice.
The chief engineer, upon learning of the filing of a valid petition under the provisions of § 46-10A-12 or 46-10A-13, shall set the petition for hearing before the Water Management Board at the nearest reasonable date and shall publish a copy of the notice of hearing at least once a week for two successive weeks in at least one legal newspaper in each county in which the land included in the existing water use control area is found. The chief engineer shall also send notice by first class mail to all water permit holders and holders of filed vested rights or adjudicated rights in the affected area. The contents of the notice shall be as specified in the provisions of § 1-26-17.
Source: SL 1983, ch 314, § 192.
46-10A-15. Approval of petition under § 46-10A-12 or 46-10A-13--When required.
The Water Management Board shall approve a petition brought under the provisions of § 46-10A-12 or 46-10A-13 upon finding that approval of the petition is in the public interest and will further the goal of efficient and equitable apportionment of water among affected water permit or right holders.
Source: SL 1983, ch 314, § 193.
46-10A-16. Appeal from board actions relating to establishment or administration of area.
Any person who is in a water use control area and is affected by board decisions may appeal from acts or decisions of the board with respect to establishment of a water use control area or administration of water diversion or use.
Source: SL 1961, ch 460, § 3; SDCL, § 46-10-27; SL 1983, ch 314, § 176.
46-16-1 to 46-16-29.
Transferred.
46-16-30
Repealed.
46-16-31 to 46-16-76.
Transferred.
46-17-1 to 46-17-4.
Transferred.
46-17-5
Superseded.
46-17-5.1
Transferred.
46-17-6, 46-17-7.
Superseded.
46-17-8
Transferred.
46-17-9
Superseded.
46-17-10 to 46-17-30.
Transferred.
46-17A-1, 46-17A-2.
Transferred.
46-17A-2.1
Transferred.
46-17A-3, 46-17A-3.1.
Transferred.
46-17A-3.2, 46-17A-3.3.
Repealed.
46-17A-3.4 to 46-17A-3.7.
Transferred.
46-17A-4
Superseded.
46-17A-4.1
Transferred.
46-17A-5 to 46-17A-11.
Superseded.
46-17A-12 to 46-17A-14.
Transferred.
46-17A-14.1
Repealed.
46-17A-15
Transferred.
46-17A-15.1, 46-17A-15.2.
Repealed.
46-17A-16 to 46-17A-21.
Transferred.
46-17A-22
Transferred.
46-17A-22.1 to 46-17A-22.3.
Transferred.
46-17A-22.4
Transferred.
46-17A-23 to 46-17A-23.4.
Transferred.
46-17A-23.5
Transferred.
46-17A-24 to 46-17A-58.
Transferred.
46-17A-59
Omitted.