Frequently Asked Questions about Water Rights
According to South Dakota Codified Law (SDCL) 46-1-3, 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.
A water appropriation is an authorization granted by the state Water Management Board to make a private, beneficial use of the state's water resources. An approved appropriation authorizes use of either ground or surface water and is issued as either a water right permit for a new water use or as a vested water right for an existing water use predating March 2, 1955.
A permit to appropriate water is needed for all water uses in South Dakota except for certain domestic uses of water. Domestic use is the highest use of water and takes precedence over all appropriative uses. Examples of domestic water uses are: 1) drinking, washing, sanitary, and culinary uses by an individual or household, 2) irrigation of a noncommercial garden, trees, etc. not exceeding one acre in size, 3) stock watering, and 4) use in schools, parks, and public recreation areas. In general, domestic uses may not exceed either 25,920 gallons per day (gpd) or a peak pump rate of 25 gallons per minute (gpm). Any domestic use in excess of either 25,920 gpd or 25 gpm requires obtaining a permit to appropriate water. For additional information about who needs a water appropriation, please refer to the web page Using Water in South Dakota.
An application to appropriate water needs to be filed on forms supplied by the chief engineer. Information needed on the application includes the water source, amount of water to be claimed, diversion point locations, annual period during which water may be used and type of use. The application also needs to include a map of the project, the application fee, and supplemental information such as the storage capacity of impoundment structures or a well driller's test hole or well log, when applicable. Several other types of applications are also processed by the Water Rights Program, including applications to: 1) amend existing permits or rights, 2) reserve water for future use, 3) control flooding or modify watercourses and 4) claim vested water rights. The same procedure is used for processing each type of application.
Upon receipt of a completed application, the Water Rights Program prepares a report and a recommendation is prepared by the chief engineer to either approve, deny, or defer action on the application. If recommended for approval, qualifications are often attached restricting water use under certain conditions and to require annual reporting of water use. A permit to appropriate water may be issued only if: 1) there is a reasonable probability that unappropriated water is available, 2) the proposed diversion can be developed without unlawful impairment of existing rights, 3) the proposed use is a beneficial use, and 4) in the public interest. Public interest is not defined by state law.
A notice describing the application and stating the chief engineer's recommendation is then published in one official newspaper in each county in which water is to be diverted or used. The notice is published once a week for two successive weeks. A listing of permit applications currently undergoing public notice may be viewed by clicking here. In response to the published notice, petitions may be filed either opposing or supporting the application. If the chief engineer's recommendation is to approve the application and no petition opposing the application is received, then the chief engineer may issue a water right permit or vested water right on behalf of the Water Management Board without holding a hearing. However, the chief engineer may schedule an application for a board hearing even if it is not contested, if the chief engineer believes the application presents important issues of public policy or public interest. Contested applications must be considered by the Water Management Board during a contested case hearing. Proponents and opponents may be represented by legal counsel, present evidence, and cross examine. The board may accept, reject, or modify the chief engineer's recommendation and issue the water right permit or vested water right subject to terms, conditions, restrictions, and other limitations to protect the public interest. After a board decision is made, the board's attorney prepares findings of fact, conclusions of law, and a final decision concerning the issue. Following a comment period, the board considers adopting the proposed findings, conclusions and final decision. Final decisions of the Board may be appealed to the circuit court and state Supreme Court. A flow chart of the water right permit process is shown in the South Dakota Environmental Permitting and Regulation Guide.
Upon approval of the application to appropriate water, a water right permit is issued by the chief engineer on behalf of the Water Management Board. The permit includes information supplied on the application, any qualifications attached by the chief engineer or Water Management Board, and the time periods during which the project must be constructed and water placed to beneficial use. The statutory length of time allowed for construction of works is five years from the date of approval and an additional four years to place the water to beneficial use. A water right permit may be amended to extend the construction period or the time period to place water to beneficial use, for a reasonable time, but only due to: 1) delays caused by physical or engineering difficulties, 2) operation of law, or 3) other exigent circumstances identified by the board. An application to extend the construction period should be filed prior to expiration of the current construction period.
Upon completion of the water use project, the permit holder should file a "Notice of Completion of Works" form with the chief engineer. This "Notice of Completion of Works" form is mailed to each permit holder when the water right permit is issued by the chief engineer. An on-site investigation will then be scheduled to determine if the constructed works comply with all water right permit requirements and are safely constructed. Following the investigation, a water license is issued for the project, as developed, and the water right permit becomes a water right. If a "Notice of Completion of Works" is not filed, an on-site investigation will be completed following expiration of the five year construction period.
An application may be filed to amend an existing water right permit or right to change types of water uses or change the location of use. A diversion point may be relocated from the permitted diversion point without publication, if the change does not interfere with existing diversions. An irrigation water right permit or right may only be transferred from irrigation use to domestic use or use within a water distribution system. No amendment may increase the rate of diversion or volume of water appropriated under the original permit or right and the amendment may not impair existing rights. The procedure for processing an application to amend an existing permit or right is the same procedure used for new applications.
A water right permit may be cancelled if the water use project is not constructed within the authorized construction period. In addition, failure to place water to beneficial use as authorized by a developed water right permit or right may result in cancellation due to either forfeiture or abandonment, or both. Water needs to be placed to beneficial use at least once every three years or all or any part of the water not used is subject to cancellation. However, there are legal excuses for not using water which suspend the period of nonuse of water: 1) unavailability of water to satisfy a permit or right, 2) legal proceedings which prevent the use of water, 3) use of water under existing climatic conditions would result in a waste of water, and 4) participation in an acreage reserve or other federal production quota program. In order for a permit or right to be cancelled, a hearing must be held by the Water Management Board. Any forfeited water reverts to the public and becomes unappropriated water, unless the source is fully appropriated.