§174C-50  Existing uses.  [2001amendment retroactive to July 1, 1987.  L 2001, c 10, §3.]  (a)  Allexisting uses of water in a designated water management area, except thoseexempted from regulation by this chapter, may be continued after the effective dateof designation only with a permit issued in accordance with sections 174C-51,174C-52, and 174C-53(b).

(b)  After publication as provided in section174C-52, the commission shall issue a permit for the continuation of a use inexistence on the effective date of designation, if the criteria in subsection(a) are met and the existing use is reasonable and beneficial.

Whether the existing use is areasonable-beneficial use and is allowable under the common law of the Stateshall be determined by the commission after a hearing; provided that thecommission may make such a determination without a hearing, if the quantity ofwater applied for does not exceed an amount per month established by rule or ifthe quantity of water applied for exceeds an amount per month established byrule, but no objection to the application is filed by any person havingstanding to file an objection.  In determining whether an application does notexceed the amount per month established by rule, the commission shall consideran average of water use over the three-month period immediately preceding thefiling of the application.

(c)  An application for a permit to continue anexisting use must be made within a period of one year from the effective dateof designation.  Except for appurtenant rights, failure to apply within thisperiod creates a presumption of abandonment of the use, and the user, if theuser desires to revive the use, must apply for a permit under section 174C-51. If the commission determines that there is just cause for the failure to file,it may allow a late filing.  However, the commission may not allow a latefiling more than five years after the effective date of rules implementing thischapter.  The commission shall send two notices, one of which shall be byregistered mail, to existing users to file for an application for a permit tocontinue an existing use.

(d)  An application shall be acted upon by thecommission within ninety calendar days of an application not requiring ahearing, or within one hundred eighty calendar days of an application requiringa hearing.  The time periods prescribed in this subsection shall not be deemedto run for any period in which an application is not complete in all materialrespects in the judgment of the commission.

(e)  The commission shall issue an interimpermit; provided that the existing use meets the conditions of subsection (b). The commission shall also issue an interim permit for an estimated, initialallocation of water if the quantity of water consumed under the existing use isnot immediately verifiable, but the existing use otherwise meets the conditionsof subsection (b) for a permit or an interim permit.  An interim permit isvalid for such time period specified therein.  The commission may issue successiveinterim permits of limited duration.  Interim permits are subject to revocationunder section 174C-58.  Whenever interim permits are to be issued, the timeperiods specified in subsection (d) apply to the issuance or nonissuance ofinterim permits.

(f)  A permit to continue an existing use shallbe for a quantity of water not exceeding that quantity being consumed under theexisting use.  The quantity being consumed shall be determined and verified bythe best available means not unduly burdensome on the applicant, as determinedby the commission.  The commission may prescribe the installation of meteringor gauging devices, and, if so prescribed, such metering or gauging devicesshall be in place and operational for at least one year before a determinationis made as to the quantity of water being consumed in an existing use and afinal permit is issued.

(g)  If an interim permit is issued pendingverification of the actual quantity of water being consumed under the existinguse, a final determination of that quantity shall be made within five years ofthe filing of the application to continue the existing use.  In the finaldetermination, the commission may increase or reduce the amount initiallygranted the permittee.

(h)  Two or more existing uses of water aredeemed to be competing when they draw water from the same hydrologicallycontrollable area and the aggregate quantity of water consumed by the usersexceeds the appropriate sustainable yield or instream flow standardsestablished pursuant to law for the area.  If applications are made to continueexisting uses which are competing and the uses otherwise meet the requirementsof subsection (b), the commission shall hold a hearing to determine thequantity of water that may be consumed and the conditions to be imposed on eachexisting use.

(i)  A permit user of water with a continuousreduced water usage shall be given priority to reobtain its permitted level ofwater usage over any other application; provided that the use remains the sameand is reasonable and beneficial and water is available. [L 1987, c 45, pt of§2; am L 1999, c 197, §8; am L 2001, c 10, §1]

 

Revision Note

 

  "July 1, 1987" substituted for "the effectivedate of this chapter".

 

Case Notes

 

  The legislature (pre-2001 amendment) intended the term"existing use" to refer to uses existing on July 1, 1987, theeffective date of the code.  94 H. 97, 9 P.3d 409.

  Where proposed well constituted a "new" use,irrespective of whether a portion of the water derived therefrom would beutilized for existing purposes, commission erred in granting an"interim" use permit, ostensibly pursuant to §174C-49(a); thissection provides for the issuance of an interim use permit only for"existing legal uses".  103 H. 401, 83 P.3d 664.

  Despite evidence that permit applicant violated chapter 340E,neither the water code nor the public trust precluded the commission on waterresource management from allocating water to applicant to supply water todomestic end users from a delivery system that may not comply with chapter340E; as this jurisdiction separately regulates water allocation and drinkingwater standards, and there was no discernable legislative intent to make wateruse permit applications subject to compliance with chapter 340E, violations ofchapter 340E were not germane to a review of the propriety of water allocationunder the water code and the public trust.  116 H. 481, 174 P.3d 320.

  Where, even assuming that subsequent landowner's applicationconstituted a legitimate amendment of the timely existing use application filedby former landowner, such an amendment did not preserve subsequent landowner'sexisting uses where subsequent landowner was not identified as an applicant forexisting uses in the application filed within the statutory one-year deadlinepursuant to subsection (c); thus, commission on water resource management erredby considering subsequent landowner's untimely request for existing uses.  116H. 481, 174 P.3d 320.