Do I Really Need a Water Use Permit? - Attorney Blog | Natural Resources, Commercial Law - Attorney Blog | Natural Resources, Commercial Law

Call Our Firm:   605.385.0330

Commercial Transactions & Litigation, Environmental Law, Natural Resources Law, & Energy Law

Do I Really Need a Water Use Permit?

Posted on: May 10th, 2022
by David Ganje

Yes, you probably do. Under South Dakota law, with the important exception of water rights in Indian Country and on certain federal lands, all water within the state is the property of the people of the state.  The right to the use of water may be acquired by ‘appropriation’ as provided by law.  A water appropriation is authorized by the state Water Management Board granting the legal right to secure a private, beneficial use of the state’s water resources.  Approval  by the Water Management Board authorizes the use of either ground water or surface water. A water right, often called a permit or a license,  is then issued either as a new legal water right.

A permit to use water is required for all water uses in South Dakota save for certain limited domestic and agricultural uses of water.  However, this limited use of water requires a permit if water use exceeds either 25,920 gallon per day or a peak pump rate of 25 gallons per minute. The following types of water use require a water right permit.

  • Commercial uses such as tourist attractions, truck stops, restaurants, campgrounds, motels, or any other type of business.
  • Industrial uses where water is to be used for processing, cooling, dewatering, etc.
  • Institutional uses such as churches, prisons, etc.
  • Irrigation use
  • Municipal use (water distribution systems using 18 gallons per minute or less do not need to get a water right permit)
  • Rural water system use (water distribution systems using 18 gallons per minute or less do not need to get a water right permit)
  • Suburban housing development use (in excess of 18 gallons per minute)
  • Recreation use
  • Fish and wildlife propagation

By way of illustration, if one is interested in constructing an irrigation project a water right permit is needed.  And, importantly, this water permitting system and rules remain in place even in a drought year.

The fine points of the application process and procedure will not be discussed in this piece.  But let the water permit applicant beware – the devil is in the details.  Upon approval of an application a water right permit is issued by the Chief Engineer on behalf of the Water Management Board.  In some instances the Water Management Board directly controls the decision. The permit includes information supplied on the application as well as any qualifications, meaning operating conditions, attached or required by the Chief Engineer or Water Management Board.  A permit is not forever if it the water project is not started.  The law and sometimes the state place time periods during which a water use project must be completed and the water placed to  use.

An application could be filed to amend an existing permit or license. An existing permit or license may be amended for a change in use, a change in point of diversion or for other changes if the change does not: (1) unlawfully impair other party’s existing rights; (2) continues to be  for a beneficial use as determined by the state definition of that term; and (3) continues to be in the public interest again as determined by the state definition of that term.

A water permit could be cancelled for the following reasons: The project is not constructed within the authorized construction period; a failure to place water to timely use may result in  either forfeiture or abandonment.  Water must be placed in use at least once every 3 years. If not, all or any part of the water that is not used is subject to cancellation.  Indifference to water rights and water law is a fool’s game but some have played it.

by .

Tags: , ,