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



(b)  After publication as provided in section
174C-52, the commission shall issue a permit for the continuation of a use in
existence 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 a
reasonable-beneficial use and is allowable under the common law of the State
shall be determined by the commission after a hearing; provided that the
commission may make such a determination without a hearing, if the quantity of
water applied for does not exceed an amount per month established by rule or if
the quantity of water applied for exceeds an amount per month established by
rule, but no objection to the application is filed by any person having
standing to file an objection.  In determining whether an application does not
exceed the amount per month established by rule, the commission shall consider
an average of water use over the three-month period immediately preceding the
filing of the application.



(c)  An application for a permit to continue an
existing use must be made within a period of one year from the effective date
of designation.  Except for appurtenant rights, failure to apply within this
period creates a presumption of abandonment of the use, and the user, if the
user 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 late
filing more than five years after the effective date of rules implementing this
chapter.  The commission shall send two notices, one of which shall be by
registered mail, to existing users to file for an application for a permit to
continue an existing use.



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



(e)  The commission shall issue an interim
permit; provided that the existing use meets the conditions of subsection (b). 
The commission shall also issue an interim permit for an estimated, initial
allocation of water if the quantity of water consumed under the existing use is
not immediately verifiable, but the existing use otherwise meets the conditions
of subsection (b) for a permit or an interim permit.  An interim permit is
valid for such time period specified therein.  The commission may issue successive
interim permits of limited duration.  Interim permits are subject to revocation
under section 174C-58.  Whenever interim permits are to be issued, the time
periods specified in subsection (d) apply to the issuance or nonissuance of
interim permits.



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



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



(h)  Two or more existing uses of water are
deemed to be competing when they draw water from the same hydrologically
controllable area and the aggregate quantity of water consumed by the users
exceeds the appropriate sustainable yield or instream flow standards
established pursuant to law for the area.  If applications are made to continue
existing uses which are competing and the uses otherwise meet the requirements
of subsection (b), the commission shall hold a hearing to determine the
quantity of water that may be consumed and the conditions to be imposed on each
existing use.



(i)  A permit user of water with a continuous
reduced water usage shall be given priority to reobtain its permitted level of
water usage over any other application; provided that the use remains the same
and 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 effective
date of this chapter".



 



Case Notes



 



  The legislature (pre-2001 amendment) intended the term
"existing use" to refer to uses existing on July 1, 1987, the
effective 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 be
utilized for existing purposes, commission erred in granting an
"interim" use permit, ostensibly pursuant to §174C-49(a); this
section 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 water
resource management from allocating water to applicant to supply water to
domestic end users from a delivery system that may not comply with chapter
340E; as this jurisdiction separately regulates water allocation and drinking
water standards, and there was no discernable legislative intent to make water
use permit applications subject to compliance with chapter 340E, violations of
chapter 340E were not germane to a review of the propriety of water allocation
under the water code and the public trust.  116 H. 481, 174 P.3d 320.



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