SOUTH DAKOTA Department of
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Water Rights

CHAPTER 46-7
STORAGE, DIVERSION AND IRRIGATION WORKS


Section
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 Repealed.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 - Costs - Bidding provisions applicable.
46-7-5.2. Breach or repair of works by chief engineer if necessary to protect human life - Cost as lien against owner - 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 - Construction of dam before January 1, 1990 - Owner and immediate family as sole residents - Chief engineer to determine 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 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 Repealed.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 Repealed.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.

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.

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.

46-7-4. Persons causing injury to waterways - Duty to repair - Liability for expenses. Repealed by SL 1983, ch 314, § 118.

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 the safety of the works. If works are found to be unsafe, the chief engineer shall notify the owner and 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 him. 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 shall 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.

46-7-5.1. Repair of unsafe works by chief engineer - Costs - Bidding provisions applicable. 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 as applicable, 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 chapter 5-18 unless he determines that compliance with those provisions will result in harm to public health or property.

46-7-5.2. Breach or repair of works by chief engineer if necessary to protect human life - Cost as lien against owner - 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 his 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 chapter 5-18 are not applicable to this section. This section does not limit any other remedy against the owner of the works.

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.

46-7-5.4. Definition of terms. Terms used in §§ 46-7-5.5 to 46-7-5.11, inclusive, mean:

46-7-5.5. Application - Construction of dam before January 1, 1990 - Owner and immediate family as sole residents - Chief engineer to determine flood plain. The provisions of §§ 46-7-5.4 to 46-7-5.11, inclusive, only apply to privately owned high-hazard dams constructed prior to January 1, 1990, if the owner and his immediate family are the only persons residing below the dam within the flood plain. The flood plain will be determined by the chief engineer.

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.

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:

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:

 

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:

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.

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:

In addition, the board will cancel the filing and no further affidavits may be filed for the dam.

46-7-6. Unsafe works, inspection by board - Request accompanied with estimate of cost - Refund of deposit on finding works unsafe - Liability of owner for inspection fee, lien on property. Repealed by SL 1983, ch 314, § 120.

46-7-7. Priority of liens of board for fees placed upon property subsequent to March 7, 1907. Repealed by SL 1983, ch 314, § 122.

46-7-8. Works constructed by United States or its agencies, inspection by board not required, exception. Repealed by SL 1983, ch 314, § 123.

46-7-9. Unsafe works used for storage, diversion, or carriage of water - Notice to owner by board, specifications of necessary changes - Time for repair. Repealed by SL 1983, ch 314, § 124.

46-7-10. Destruction, injury to, or interference with facilities for diversion, carriage or storage of water prohibited - Liability for damages. Repealed by SL 1983, ch 314, § 125.

46-7-11. Arrest of persons destroying or injuring facilities for diversion, carriage, or storage of water by board - Authorized entry on premises. Repealed by SL 1983, ch 314, § 126.

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.

46-7-13. Unauthorized injury to or interference with irrigation facilities prohibited. Repealed by SL 1983, ch 314, § 128.

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.

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.

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