Water Rights

Application and Hearing Procedures

A water right permit to appropriate water allows a person to make a private, beneficial use of a public resource.

The following is a brief summary of the application and hearing process:

Application Report and Recommendation. Upon receipt of a completed application for a water right permit, a report is prepared by the Water Rights Program. The chief engineer then makes a recommendation as to whether the application should be approved, deferred, or denied. Recommendations typically include one or more qualifications including certain restrictions, limitations, or other responsibilities for the applicant to fulfill. A copy of the report and recommendation is provided to the applicant and to anyone else upon request.

In order for an application to be approved, the following conditions need to be met:

  • Reasonable probability that unappropriated water is available for the proposed use;
  • No unlawful impairment of existing water rights;
  • Must be a beneficial use of water; and
  • In the public interest as it pertain to matters within the regulatory authority of the Water Management Board

Public Notice of Application for a Water Right Permit. Following completion of the report and recommendation, the applicant is responsible for publishing a notice in an official newspaper in the county or counties in which water is to be diverted or used or where project works will be located. Notice is also posted on the DANR website. The notice provides a brief description of the proposed water use project, the recommendation of the chief engineer, a statement of how to file a petition opposing the application or comment on the application, as well as other procedural requirements.

Filing a Comment. Any person may file a comment concerning the application/recommendation. Filing a comment will NOT cause a contested case hearing to be held or make the commenter a party of record to, or a participant in, any hearing that may held. However, comments will be provided to the Water Management Board and become part of the public record.

Filing a Petition to Intervene. In order to participate in a hearing on an application, you need to meet petitioner requirements found in South Dakota Codified Law 46-2A-4(4) and file a petition with the chief engineer and the applicant on a form provided by the chief engineer by the date specified in the published notice. A petition opposing the application needs to include the following information:

  • Describe the unique injury approval of the application will have upon you;
  • List the reasons for your opposition to the application; and
  • Name and mailing address or that of your legal counsel.

The applicant also needs to file a petition if contesting the Chief Engineer's recommendation.

Contested Case Hearing. If an application or the recommendation of the chief engineer is contested, then a contested case hearing is scheduled for the Water Management Board to consider the application and recommendation during a board meeting. The Water Management Board is a quasi-judicial citizen's board consisting of seven members appointed by the Governor. During a contested case hearing the board will consider the evidence presented by all the interested parties including the applicant, petitioners, and the staff of the Water Rights Program. A contested case hearing may be very formal or informal. Individuals may represent themselves or all parties may be represented by legal counsel, present testimony and evidence to the board, call witnesses to testify, and cross-examine other parties or their witnesses. A more thorough description of hearing procedures is available here.

Final Decision on an Application for a Water Right Permit. After considering all the evidence presented during a contested case hearing, the board may approve, modify, or deny the application or the board may choose to delay making a final decision pending receipt of additional information. Once a decision is made by the board, then typically the board's attorney will prepare "findings of fact, conclusions of law, and a final decision" for the board and all parties to review. Following a comment period on the proposed "findings, conclusions, and final decision," the board will conduct a hearing to adopt the findings, conclusions, and final decision. These "findings" provide a written record of the issues considered by the board and the board's responses and reasons for the final decision. This written record is necessary since decisions of the board may be appealed to circuit court and the State Supreme Court.