1. (A) Upon the inception of a drought alert phase, the department is responsible for disseminating public information concerning all aspects of the drought. The initial action in responding to drought must be public education, providing information as to existing and potential conditions and water conservation measures necessary to meet the demand presented at each drought alert phase.
2. (B) The department shall provide available information on water demands and use to any significant water user, public or private, in order to promote voluntary water conservation.

3. (C) The department may promulgate regulations to specify categories of nonessential water use and other terms necessary to implement this section. Water used strictly for firefighting purposes, health and medical purposes, agricultural operations for food production, minimum stream flow requirements, minimum water levels in the potable drinking water supplies and the above and below ground water tables, and the use of water to satisfy federal, state, or local public health and safety requirements are considered essential water use. Water used to maintain minimum water levels in the potable drinking water supply and water used for public safety purposes have the highest priority in the essential water category. The department by regulation may provide for the mandatory curtailment of nonessential water uses during periods of severe or extreme drought in drought management areas. Agricultural operations for nonfood production, and nonessential water users that may suffer a critical economic loss as a result of mandatory curtailment, have priority over other nonessential water users. Agricultural operations for nonfood production and nonessential water users that may suffer a critical economic loss as a result of mandatory curtailment must certify to the Drought Response Committee the nature of the loss in order to qualify for the higher priority nonessential use. Mandatory curtailment of nonessential water use shall become effective only after the Drought Response Committee determines the action to be reasonably necessary to ensure supplies of water in drought management areas. Upon such a finding, the Drought Response Committee shall determine which categories of nonessential water must be curtailed after reviewing each category by the following standards:

   1. (1) the purpose of the use;
   2. (2) the suitability of the use to the watercourse, lake, or aquifer;
   3. (3) the economic value of the use;
   4. (4) the social value of the use;
   5. (5) the extent and amount of the harm it causes;
   6. (6) the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other;
   7. (7) the practicality of adjusting the quantity of water used by each proprietor;
   8. (8) the protection of existing values of water uses, land, investments, and enterprises;

   9. (9) the consumptive or nonconsumptive nature of the use.

      Following the determination, the department shall issue a declaration specifying the drought management areas affected and identifying the categories of nonessential water use to be curtailed. The declaration must be widely distributed to news media and must be published at least once a week in a newspaper of general circulation in each county affected. Any person adversely affected by mitigation or mandatory curtailment may, within ten days after such curtailment becomes effective, submit appropriate information to the department and obtain relief therefrom as is appropriate. Any declaration shall continue in effect only so long as conditions in a drought management area reasonably require it, and the declaration must be terminated by action of either the Drought Response Committee or the department, and notice of termination of the declaration must be given as when originally issued. If a declaration issued pursuant to this section conflicts with any ordinance or plan adopted pursuant to Section 49-23-80, the declaration shall supersede any ordinance or plan.

4. (D) During any drought alert phase, the department may offer its services to mediate any dispute arising from competing demands for water. The mediation may be undertaken only upon the request of the parties involved and may not be binding. A mediation shall not stop or preclude the department and the Drought Response Committee from taking any other action authorized by this chapter. A party affected by a declaration of the Drought Response Committee has the right to appeal that action to the Administrative Law Court. The appeal must be filed within five days of the declaration. The filing of an appeal operates as an immediate stay of the declaration of the Drought Response Committee as it affects the appellant. A review of the immediate stay must be heard by the Administrative Law Court within five days of the filing of the notice of appeal with the Administrative Law Court. All issues under appeal must be heard as a contested case pursuant to the provisions of the Administrative Procedures Act and the rules of the Administrative Law Court.

HISTORY: 1985 Act No. 63, Section 3; 1993 Act No. 181, Section 1250; 2000 Act No. 366, Section 3; 2005 Act No. 99, Section 1.