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Posts Tagged ‘South Dakota water law’
Do I Really Need a Water Use Permit?
Yes, you probably do. Under South Dakota law, with the important exception of water rights in Indian Country and on certain federal lands, all water within the state is the property of the people of the state. The right to the use of water may be acquired by ‘appropriation’ as provided by law. A water appropriation is authorized by the state Water Management Board granting the legal right to secure a private, beneficial use of the state’s water resources. Approval by the Water Management Board authorizes the use of either ground water or surface water. A water right, often called a permit or a license, is then issued either as a new legal water right.
A permit to use water is required for all water uses in South Dakota save for certain limited domestic and agricultural uses of water. However, this limited use of water requires a permit if water use exceeds either 25,920 gallon per day or a peak pump rate of 25 gallons per minute. The following types of water use require a water right permit.
- Commercial uses such as tourist attractions, truck stops, restaurants, campgrounds, motels, or any other type of business.
- Industrial uses where water is to be used for processing, cooling, dewatering, etc.
- Institutional uses such as churches, prisons, etc.
- Irrigation use
- Municipal use (water distribution systems using 18 gallons per minute or less do not need to get a water right permit)
- Rural water system use (water distribution systems using 18 gallons per minute or less do not need to get a water right permit)
- Suburban housing development use (in excess of 18 gallons per minute)
- Recreation use
- Fish and wildlife propagation
By way of illustration, if one is interested in constructing an irrigation project a water right permit is needed. And, importantly, this water permitting system and rules remain in place even in a drought year.
The fine points of the application process and procedure will not be discussed in this piece. But let the water permit applicant beware – the devil is in the details. Upon approval of an application a water right permit is issued by the Chief Engineer on behalf of the Water Management Board. In some instances the Water Management Board directly controls the decision. The permit includes information supplied on the application as well as any qualifications, meaning operating conditions, attached or required by the Chief Engineer or Water Management Board. A permit is not forever if it the water project is not started. The law and sometimes the state place time periods during which a water use project must be completed and the water placed to use.
An application could be filed to amend an existing permit or license. An existing permit or license may be amended for a change in use, a change in point of diversion or for other changes if the change does not: (1) unlawfully impair other party’s existing rights; (2) continues to be for a beneficial use as determined by the state definition of that term; and (3) continues to be in the public interest again as determined by the state definition of that term.
A water permit could be cancelled for the following reasons: The project is not constructed within the authorized construction period; a failure to place water to timely use may result in either forfeiture or abandonment. Water must be placed in use at least once every 3 years. If not, all or any part of the water that is not used is subject to cancellation. Indifference to water rights and water law is a fool’s game but some have played it.
Water Law Revision Recommended
South Dakota is in a state of drought, breaking century long records for extreme dryness. June 2021 has been the driest June in South Dakota over the past 127 recorded years, according to the government monitoring site, drought.gov. Another report from SDSU revealed that as of February of 2021, 89% of South Dakota was in some level of drought, with 50% being in severe drought or worse. As of August 2021, 100% of the state is facing abnormally dry conditions, while 92% of the state is experiencing moderate drought or worse, according to the U.S. Drought Monitor.
The governor of South Dakota declared a state of emergency in 2021 in response to the widespread drought conditions in the state. A recent news article indicated that all of South Dakota is suffering from drought conditions ranging from abnormally dry to extreme levels of drought.
The US Army Corps of Engineers estimate that the runoff amount for the year 2021 may be the 10th driest year since 1898, in the Upper Missouri River Basin, which constitutes the Missouri River water above Sioux City.
Mark Sweeney, a professor at the University of South Dakota, was recently quoted as saying, “Things like this should make us focus more on making sure we have plans in place for really severe droughts in this state so ultimately the economic impacts can be minimized to the best extent possible.”
The state has the legal authority to shut off water rights in times of emergencies. Historically the DENR, now known as the DANR, has issued orders to shut off junior surface water rights permits (based on a permit date or prior vested legal authority) in roughly 3 or 4 basins (A “basin” is “a natural or artificial land surface depression with or without perceptibly defined beds and banks to which surface runoff gravitates and collectively forms a flow of water continuously or intermittently in a definite direction.” Shut off orders have also been issued for irrigation rights. Most shut off orders direct water rights holders to stop using water are temporary. However, the current drought may very well result in more of this type of government action. From my experience I know that the staff of the DANR understands that this powerful ‘policing tool’ is not to be undertaken lightly. The DANR understands the importance of these water rights permits whether current, vested or otherwise legally created.
My objection is with the current legal process by which a shut off order should be issued, and under what fair processes such a decision can be made. The shut off procedure has never been considered by the state’s highest court. The current shut off procedure needs real change.
Due process rules and regulations of the state – which apply to other administrative contested matters – are not included in the South Dakota law which grants the chief engineer of the DANR the right to shut off a permit holder’s water rights. Current law states that the state’s chief engineer on his or her own, and without a hearing, may, after appropriate investigation, issue an order to shut off or limit a person or permit holder’s use of surface water or groundwater, or order them to plug or otherwise control a well. The current law is intended to protect those water rights of another user who has higher or earlier priority rights or to cause a user to discontinue the use of water to which that user has no legal right. The shut off law provides no rights to the user by way of advance notice and by way of providing the user with a description of the problem at hand. Nor does the law offer an opportunity to contest the ‘decision’ of the engineer or have a public hearing on the matter before the agency or before the state Water Management Board.
Courts in other jurisdictions have recognized that “once rights to use water are acquired, they become vested property rights. As such, they cannot be infringed by others or taken by governmental action without due process and just compensation.” At a minimum, the government must provide notice and opportunity for hearing appropriate to the nature of the action and reasonably calculated, under all the circumstances, to give parties notice of the proposed action and afford the water rights holder an opportunity to present arguments, objections, and facts. These safeguards should be placed in South Dakota law.
