Title 46 — WATER RIGHTS

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for irrigation by a permit or right is placed under an acreage reserve or production quota program or otherwise withdrawn from use as required for participation in…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…

As provided in § 46-1-16 , the board may delegate to the chief engineer the authority to issue a permit for the appropriation of water if the applicant does not contest the recommendation of the chief engineer and no person has filed a petition to oppose the application. Source: …

As between appropriators, the first in time is the first in right. The priority of the appropriation shall date from the time of filing of the application therefor in the office of the Water Management Board. Source: SDC 1939, § 61.0102; SL 1955, ch 430 , § 1; SDC Supp 1960, § 61…

Any person desiring to make reasonable domestic use of water from any source may do so without obtaining a permit from the Water Management Board, except that no person may construct a dam across any dry - draw for any purpose, including domestic use, if the dam will impound more…

The Water Management Board may issue a permit to appropriate up to fifty thousand acre - feet of water for use per year to the South Dakota Conservancy District to effectuate the provisions of a contract executed between the district and an energy industry user under §

If water is to be conveyed to users by a water distribution system diverting more than eighteen gallons per minute, the system shall comply with the provisions of §

No person may begin or carry on any construction of works for storing or carrying water until a permit to appropriate the water has been issued. Source: SDC 1939, §§ 61.9907, 61.9910; SL 1965, ch 304 , § 2; SL 1981, ch 316 , § 1; SL 1983, ch 314 , § 46.

Source: SL 1983, ch 314 , § 99; SL 2001, ch 241 , § 7.

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. Source: SL 1955, ch 431 , § 1; SDC Supp 1960…

The term, vested rights, as used in this chapter, means: (1) Beneficial uses of groundwater under diversions and applications of water before February 28, 1955; (2) The right to take and use groundwater for beneficial purposes if an owner or lawful agent was engaged in the constr…

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, valve…

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…

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. Source: SL 1955, ch 431 , § 1; SDC Supp 1960, § 61.0406; SL 1983, ch 314 , § 101.

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. Source: SDC 1939, § 61.0403; SL 1955, ch 431 , § 1; SDC Supp 1960, § 61.0408; SL 1983, ch 314 , § 10…

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. Source: SDC 1939, § 61.0405; SL 1955, ch 431 , § 1; SDC Supp 1960, § 61.0410; SL 1983, ch 314 , § 1…

The owner of an uncontrolled artesian well shall notify the Water Management Board in writing of the location and size of the well. An uncontrolled artesian well is one that cannot be controlled by mechanical means. Source: SL 1955, ch 431 , § 1; SDC Supp 1960, § 61.0411; SL 2011…

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. Source: SL 1955, ch 431 , § 1; SDC Supp 1960, § 61.0412; SL 1983, ch 314 , § 104. 46-6-17. Repealed by SL 198…

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. Source: SL 1955, ch 431 , § 1; SD…

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…

The Water Management Board shall promulgate rules pursuant to chapter 1-26 providing for or directing, as appropriate: (1) Rehabilitation of wells; (2) Construction of wells; (3) Prevention of underground leakage or other waste of water; and (4) Plugging or other control of aband…

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,…

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…

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. Source: SL 1980, ch 304 , § 2.

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. Source: SL 1980, ch 304 , § 3; SL 1990, ch 355…

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…