Historical background of water rights in South Dakota
Climate played a major role in determining the water rights laws of South Dakota. As shown on the map of the United States, the western United States tends to be semi-arid to arid while eastern portions of the United States are typically wetter. This change in precipitation patterns falls along the 100th Meridian. South Dakota provides a vivid snapshot of the differences between the western and eastern United States. Anyone driving across South Dakota can see a striking difference between eastern and western South Dakota. Perhaps something less obvious than the change in scenery is the effect of water on attitudes. Everyone knows water is important, but the perceived value of water quickly increases when there is less of it available to use.
South Dakota, like our western neighbors, needed a water management system that would equitably distribute our often scarce water resources. In the eastern United States, where water is more plentiful, a riparian water use system developed. In a riparian system you have the right to make reasonable use of the water accessible to you. However, in the western United States, a system developed based on the "Doctrine of Prior Appropriation." This prior appropriation system allows water users to construct works to move water over long distances to where the water is needed and provides for assignment of a water use priority date. "First in time, first in right" became a common identifier for this priority date based system since the most senior water right holders have first call on any water that is available. Since the investment to construct works to move water long distances is considerable, it was and continues to be important to protect that investment. Appropriately, given the location of the 100th Meridian, South Dakota became a hybrid state with a both a riparian system and prior appropriation system. The riparian system is used primarily for small domestic water uses while the doctrine of prior appropriation is used for managing all other water uses. Domestic riparian water uses take preference over other water uses and the doctrine of prior appropriation is the means now used to protect water users and manage South Dakota's water resources.
In 1889 South Dakota became the 40th state, but the doctrine of prior appropriation actually predates South Dakota's statehood. The Dakota territorial legislature enacted legislation in 1881 establishing a procedure to "locate" surface water rights. A claimant was required to file a location certificate with the register of deeds, post a notice near the point of diversion, and begin construction within a certain period of time. In 1907, the state legislature affirmed the doctrine of prior appropriation by enacting legislation authorizing the state engineer to administer appropriation of water.
A major addition to the water rights laws occurred in 1955. Legislation was enacted specifically identifying ground water as being subject to the doctrine of prior appropriation. In addition, a provision was inserted allowing anyone to claim a vested water right for water uses predating March 2, 1955. The 1955 legislation also transferred the authority to issue water right permits from the state engineer to a citizen's board with a chief engineer making recommendations to the board. This citizen's board is now known as the Water Management Board and consists of seven members appointed by the Governor.
In 1978 another important provision was added to the state's water right laws concerning management of ground water. This provision prevents withdrawals of ground water in excess of the average estimated annual recharge to the ground water source. In other words, you can't take more water out of the aquifer than the average amount needed to refill the aquifer each year. This provision ensures that ground water supplies will be available in perpetuity to all domestic water users and everyone with a water right permit. Many western states do not provide this protection and, consequently, ground water supplies are being depleted.
Through the years many other changes to the water rights laws have been made to protect and improve management of our water resources. However, even with these changes, the same underlying principles implemented at the beginning of the 20th century are still in place in the 21st century.