SOUTH DAKOTA Department of
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Water Rights

CHAPTER 46-6
GROUNDWATER AND WELLS


Section
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, 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 Repealed.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 to 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 Repealed.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 Repealed.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 Repealed.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 Repealed.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 applicable.

46-6-1. Vested rights defined. The term "vested rights" used in this chapter, unless the context otherwise plainly requires, shall mean:

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 § 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.

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.

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.

46-6-4. Change in location of well or change in use of water - Notice to board. Repealed by SL 1983, ch 314, § 94.

46-6-5. Artesian and shallow wells - Location in townships wherein wells have been established. Repealed by SL 1982, ch 309, § 14.

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.

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:

46-6-6.2. Reduction of output of large wells during shortage - Priority disregarded - Daily fine for disobedience. Repealed by SL 1983, ch 314, § 96.

46-6-7. Artesian and shallow wells - Interference with existing wells in township, determination by board. Repealed by SL 1983, ch 314, § 97.

46-6-8. Decision of commission as to well interference in township - Written statement - Filing with clerk of courts - Appeal by aggrieved person to circuit court, trial de novo. Repealed by SL 1974, ch 55, § 50.

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 Environment and Natural Resources and deposited with the state treasurer in the environment and natural resources fee fund established in § 1-40-30. 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.

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.

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.

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 Environment and Natural Resources and deposited by the state treasurer in the environment and natural resources fee fund established in § 1-40-30. 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.

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.

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.

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.

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, he shall file all well construction records with the chief engineer for placement on permanent file. The public shall have access to the records at any time during normal business hours.

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.

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.

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.

46-6-15. Uncontrolled artesian well - Definition - Owner to notify board of size and location. It shall be the duty of the owner of an uncontrolled artesian well to notify the water management board in writing of the location and size of the well. By uncontrolled artesian well is meant one that cannot be controlled by mechanical means.

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.

46-6-17. Abandoned and wild wells - Plugging by board - Inventory - Classification. Repealed by SL 1983, ch 314, § 105.

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.

46-6-19. Old wells - Rehabilitation, regulations and specifications by board. Repealed by SL 1983, ch 314, § 108.

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:

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.

46-6-22. Information as to wrongful use of water from artesian well - Investigation by board - Institution of criminal prosecution. Repealed by SL 1983, ch 314, § 113.

46-6-23. Interference with lawful use of water prohibited. Repealed by SL 1983, ch 314, § 114.

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.

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.

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.

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.

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.

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.

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 he 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.

46-6-31. Plugging or controlling well by chief engineer - Bidding provisions applicable. The chief engineer, when 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 chapter 5-18 unless he determines that compliance with those provisions will result in harm to health or property or will result in an unreasonable waste of water.

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