Title 46 — WATER RIGHTS

No landowner may prevent the natural flow of a stream, or of a natural spring from where it starts its definite course, or of a natural spring arising on his or her land which flows into and constitutes a part of the water supply of a natural stream, nor pursue nor pollute any of…

No person may obstruct the free navigation of any navigable watercourse within this state. No person, except under lawful authority to do so, may intentionally obstruct, tamper with, or interfere with the stage, level, or flow of the public waters of this state by any means, incl…

No person owning land through which a watercourse passes may prohibit the removal of obstructions built by beavers in the watercourse, if the beavers have obstructed or interfered with the flow of water through the watercourse in a manner that floods land belonging to others or i…

Any person intending to acquire a right to beneficial use of water shall, before starting construction or placement of works for that purpose or before taking the water from any constructed works, make an application to the Water Management Board for a permit to appropriate water…

Water Management Board rules shall, in addition to providing the form and manner of preparing and presenting an application, require the applicant to state the amount of water, periods of annual use, and all other data necessary for proper description and limitation of the right …

A permit may allow diversion from a designated source of water from one or more points within an area described in the permit. However total diversion rate and amount may not exceed the rate and amount allowed by the permit. Source: SL 1955, ch 430 , § 1; SL 1957, ch 490 , § 1; S…

The location of a point of diversion may be changed or additional points of diversion may be approved if the new or additional point of diversion is from the same source of water, no additional water is appropriated, and, if the water use is for irrigation, no new land is to be i…

Water turned into any natural or artificial watercourse for means of transport by any person entitled to the use of the water may be reclaimed below and diverted by that person, subject to existing rights, accurate allowance for losses to be made, as approved by the Water Managem…

Natural flow water of any stream appropriated or diverted for municipal use is subject to downstream senior priority water rights. Any contest between water right owners shall be brought to the Water Management Board first for resolution. The board's ruling may be appealed to cir…

Any person owning land through which any nonnavigable stream passes, may construct and maintain a dam across such nonnavigable stream if the course of the water is not changed, vested rights are not interfered with, and no land flooded other than that belonging to the owner of su…

Any application for appropriation of water, pursuant to this chapter, in excess of ten thousand acre feet annually shall be presented by the Water Management Board to the Legislature for approval prior to the board's acting upon the application and all powers of eminent domain sh…

Section 46-2A-8 does not apply to permits issued to the South Dakota Conservancy District for energy industry use or to any permit or right held by an energy industry user acquired pursuant to an assignment by the district. Periods for completion of construction or application of…

The plans of construction or place of diversion may be amended, but no amendment may authorize any extension of time for construction beyond five years from the date of the permit, except as provided by this chapter. A change in the proposed point of diversion of water or change …

The work of construction shall be diligently prosecuted to completion. If one-fifth of the work is not completed within one-half the time allowed, as determined by the Water Management Board, the board may accept and approve an application for the use of any of the waters include…

A permit may be amended by extending the time for the completion of construction, or for application to beneficial use, for a reasonable time, but only on account of delays due to physical or engineering difficulties which could not have been reasonably anticipated, due to operat…

Nothing in § 46-5-1 or 46-5-2 may be construed to prevent the owner of land on which a natural spring arises and which constitutes the source or part of the water supply of a definite stream from acquiring a right to appropriate the flow from the spring as provided by law for app…

Within a reasonable time before the date set for the application of the water to a beneficial use, the chief engineer shall inspect the works, if any, after due notice to the holder of the permit. If the works are not properly and safely constructed, the chief engineer may requir…

Upon completion of an inspection, upon completion of any required changes and upon payment of any applicable fees, the chief engineer shall issue a license to appropriate water to the extent and under the conditions of the actual application of water to beneficial use, but he may…

Neither a permit to appropriate water nor a license to appropriate water may become a right to use the water for any purpose or in any manner other than that specified on the permit or license, unless amended pursuant to the provisions of this title. Source: SL 1983, ch 314 , § 5…

Notice of any sale, grant, lease, conveyance, or other transfer of an application, permit, or license to appropriate water under the provisions of this title shall be filed with the chief engineer within ninety days. Source: SL 1983, ch 314 , § 66; SL 2008, ch 230 , § 1.

Subject to the limitations in §§ 46-5-33 and 46-5-34 governing changes in irrigation rights from one parcel of land to another, any water permit or right holder may apply for a change of use of the water, a change of location of the use or other amendment to the permit or right. …

Acreage developed for irrigation outside of the acreage described on the permit may be licensed pursuant to § 46-5-30.1 , if no increase occurs in either permitted acreage or water appropriated. The unpermitted acreage shall be contiguous to the permitted acreage, owned by the sa…

Any appropriator of water may use the water for purposes other than for which it was appropriated, or may change the place of diversion, storage, or use, in a manner and under conditions approved by the Water Management Board, except that changes in irrigation permits shall be as…

If permitted irrigation use from a storage dam is abandoned or forfeited but the storage dam is used for stock watering, stock watering may be added to the license or permit upon the request of the permit or license holder. A license or permit modified under this section retains …

Subject to the limitations provided in §§ 46-5-33 and 46-5-34 , any application, permit, or license to appropriate water, including a permit issued under § 46-5-8.1 , may be assigned, but no assignment is binding, except upon the parties thereto, unless filed for record with the …

No application, permit, or right to appropriate water for irrigation purposes may be assigned, nor may the ownership of an application, permit, or right in any manner be transferred, apart from the land to which it is appurtenant, except in the manner provided by law. A transfer …

All water used in this state for irrigation purposes shall remain appurtenant to the land upon which it is used. However, if for any reason it should become impracticable to use all or any part of the water beneficially or economically for irrigation of any land to which the righ…

The provisions of §§ 46-5-33 and 46-5-34 notwithstanding, irrigation rights may be transferred apart from the land to which they are appurtenant if they are transferred for domestic use or use within a water distribution system. Such irrigation rights may be transferred or leased…

If the owner of the land to which water has become appurtenant abandons the use of such water upon such land, such water shall become public water, subject to general appropriation. Source: SDC 1939, § 61.0141; SL 1955, ch 430 , § 1; SDC Supp 1960, § 61.0128.

If any person entitled to the use of appropriated water fails to use beneficially any part of the water for the purpose for which it was appropriated, for a period of three years, the unused water shall revert to the public and shall be regarded as unappropriated public water. So…

Upon the initiative of the chief engineer or upon petition by any interested person and after reasonable notice to the holder of the right or permit, if the holder can be located, the chief engineer may investigate whether or not a water permit or right has been abandoned or forf…

The provisions of § 46-5-37 notwithstanding, no water right or permit may be forfeited for nonuse if land authorized for irrigation by a permit or right is placed under an acreage reserve or production quota program or otherwise withdrawn from use as required for participation in…

The following entities may reserve water for contemplated future needs upon a showing of availability of unappropriated water and future need pursuant to procedures set forth in chapter 46-2A : (1) A state institution, facility, or agency; (2) A municipality as defined in § 9-1-1…

Water Management Board approval of an application to appropriate water for future use is a reservation of a definite amount of water with a specified priority date and is not a grant of authority to construct the works or to put the water to beneficial use. Before the time that t…

Before an entity described in § 46-5-38 is ready to use part or all of the water subject to a future use permit or permits, temporary appropriations may be made of the water. Any person desiring to appropriate the water shall make an application to the chief engineer for a tempor…

Appropriative rights to water granted since March 7, 1907, are in full force and effect and their respective priority dates retained according to valid legal records. Source: SL 1955, ch 430 , § 1; SDC Supp 1960, § 61.0108; SL 1983, ch 314 , § 41.

Any license issued prior to January 1, 1983, by the chief engineer or the Water Management Board is hereby cured, legalized, and validated as fully as if the license had been issued in full compliance with all existing provisions of this title. Source: SL 1983, ch 314 , § 60.

The chief engineer may not cancel a temporary use permit with less than six months notice to the permit holder. In no case may a temporary use permit be cancelled prior to the time at which facilities are constructed and water may be put to beneficial use by an entity described i…

The Water Management Board may promulgate rules to authorize the chief engineer to issue temporary permits for the use of public water for construction, testing, or drilling purposes. No temporary permit is valid after December thirty - one of the year in which the permit is issu…

As soon as the Water Management Board is satisfied that the construction of works by the United States subject to a United States withdrawal approved prior to July 1, 1983, is no longer contemplated, it shall cancel its withdrawal of those waters from appropriation and the waters…

No person may engage in unauthorized use of water, may waste water, or may violate the terms or conditions of a permit or license to appropriate water. Source: SDC 1939, §§ 61.9907, 61.9910; SL 1965, ch 304 , § 2; SL 1981, ch 316 , § 2; SL 1983, ch 314 , § 79.

No person may construct facilities on any watercourse to control floods for the purpose of preventing or alleviating damage without a permit issued pursuant to the procedure contained in chapter 46-2A . The permit may be approved subject to conditions deemed necessary, including …

Section 46-5-47 does not apply to temporary emergency facilities constructed for the immediate protection of life or property. The chief engineer shall be promptly notified of the construction of such emergency facilities. Source: SL 1983, ch 314 , § 81.

Any person claiming to be owner of a vested right to appropriate water from any surface water source for beneficial use other than domestic use as defined in subdivision § 46-1-6(7), may file with the chief engineer a vested right claim in a form and manner prescribed by the Boar…

Subject to vested rights and prior appropriations, all waters flowing in definite streams of the state may be appropriated only as provided in chapters 46-1 to 46-10 , inclusive. A water right does not constitute absolute ownership of the water, but shall remain subject to the pr…

For purposes of § 46-5-51 , the term, drip irrigation, means a planned irrigation system in which water is applied directly to the root zone of plants by means of applicators, such as orifices, emitters, porous tubing, or perforated pipe, that are operated under low pressure and …

A permit to appropriate water, pursuant to §§ 46-1-15 and 46-5-10 , is not required for drip irrigation, as defined in § 46-5-50 , if the drip irrigation meets the following conditions: (1) The irrigation is for noncommercial purposes; and (2) Use of water does not exceed eightee…

For purposes of § 46-5-51 , the term, noncommercial purposes, means tree plantings specifically for conservation purposes, excluding trees planted for ornamental or commercial purposes. Source: SL 1990, ch 358 , § 3.

In the issuance of permits to appropriate water for irrigation or in the adjudication of rights to the use of water for such purpose, the amount allowed may not be in excess of the rate of one cubic foot of water per second for each seventy acres, or the equivalent thereof, and t…

The seventy acre restriction set forth in § 46-5-6 does not apply to permits to appropriate water for irrigation from the Missouri River. The Water Management Board shall establish by rules promulgated pursuant to chapter 1-26 , acreage restrictions to apply to permits to appropr…