Arkansas Administrative Code
Agency 138 - Arkansas Natural Resources Commission
Rule 138.00.09-001 - Title III - 2009 Revisions to Utilization of Surface Water
Universal Citation: AR Admin Rules 138.00.09-001
Current through Register Vol. 49, No. 9, September, 2024
TITLE III RULES FOR THE UTILIZATION OF SURFACE WATER (2009)
SUBTITLE I.
GENERAL
Section
301.1
PURPOSE.
A. In keeping with the policy of the State of
Arkansas, the purpose of these rules is to encourage and facilitate the
conservation, development and efficient use of surface water. Sensitivity to
the public interest by the entire state requires the protection of: existing
surface water uses; needs of all existing federal water projects; firm yield of
all existing reservoirs; instream needs; and future water needs.
B. In pursuit of these objectives, these
rules establish a procedure for surface water diversion registration,
authorization of intrabasin and interbasin diversion by non-riparian owners,
interstate transfers of water and allocations during times of water
shortages.
Section 301.2
ENABLING AND PERTINENT LEGISLATION.
A. Ark. Code Ann. §
15-22-201,
et seq., Allocation and Use of Water.
B. Ark. Code Ann. §
15-22-301 et
seq., Determination of Water Use Requirements.
C. Ark. Code Ann. §1522501 et seq.,
Water Development Projects Generally.
D. Ark. Code Ann.
§
15-20-201 et
seq., Arkansas Natural Resources Commission.
E. Ark. Code Ann. §1523401 et seq.,
Arkansas River Compact.
F. Ark.
Code Ann. §1523501 et seq., Red River Compact.
G. Ark. Code Ann. §2515201 et seq.,
Arkansas Administrative Procedure Act.
Section 301.3
DEFINITIONS. The following definitions shall apply to all parts of
these rules:
A. Affected Persons: Persons,
other than the petitioner, whose water rights could reasonably be affected by
permitting or allocation of water under these rules.
B. Allocation: The assignment of an allowance
of a specific quantity of water that may be removed from any given stream and
transported away from the stream for a designated beneficial use during times
of shortage.
C. Allocation Level:
The level of a stream at which a water shortage occurs and the allocation
process begins.
D. Arkansas Water
Plan: The comprehensive program for the orderly development and management of
the State's water and related land resources developed by the
Commission.
E. Average Annual
Yield: The average of the quantity of water passing through a watershed each
year during the applicable period of record. In the event adequate records are
not available for an arithmetic average, a suitable estimate may be
computed.
F. Basin of Origin: The
water basin from which an interbasin transfer of surface water is
diverted.
G. Beneficial Use: The
instream and offstream uses of water in such quantity as is economical and
efficient and which use is for a purpose and in a manner which is reasonable,
not wasteful, and compatible with the public interest.
H. Commission: The Arkansas Natural Resources
Commission as defined in Ark. Code Ann. §
15-20-201
et seq.
I. Commissioner: A member
of the Arkansas Natural Resources Commission, as defined in Ark. Code Ann.
§
1520201 et seq.
J. Conservation District: A district created
under the Conservation Districts Law, Ark. Code Ann. §
14-125-101 et
seq.
K. Conservation Plan: A plan
as evidenced by written document for implementation of economical and
technically feasible practices for improving the efficiency of water use.
At a minimum, the Plan shall address the following concerns where applicable: leakage and loss control, water reuse, promotion of water saving devices, drought emergency plans, irrigation system efficiency and tailwater recovery.
L. Critical
Surface Water Area: An area where current water use, projected water use or
quality degradation has or will cause a shortage of useful water within a
relatively short period of time for a sufficient length of time to be expected
to cause prolonged economic or environmental problems.
M. Diffused Surface Water: Water occurring
naturally on the surface of the ground other than in natural or altered stream
channels, lakes or ponds.
N.
Director: The Executive Director of the Arkansas Natural Resources Commission,
as defined in Ark. Code Ann. §
1520 -201 et seq.
O. District: Conservation district or
regional water district.
P.
Diverter: Any person that removes water from any source and makes any use
thereof.
Q. Domestic Use: The use
of water for ordinary household purposes including human consumption, washing,
the watering of domestic livestock, poultry and animals and the watering of
home gardens for consumption by the household.
R. Excess Surface Water: Twenty-five per cent
(25%) (to automatically increase to any higher percentage authorized by the
Arkansas General Assembly simultaneous with the effective date of any such Act)
of the average annual yield from any watershed above that amount, as determined
by the Commission, required to satisfy all of the following that are
applicable:
1. Riparian and non-riparian usage
reported for the 1989 water year as provided for in Title III Subtitle
II.
2. The water needs of federal
water projects as they existed on June 28, 1985.
3. The firm yield of all affected reservoirs
existing on June 28, 1985.
4.
Maintenance of minimum streamflows for the following streams (these constitute
an initial phase. Other streams will be added as needs arise and resources are
made available):
(a) Arkansas River from
Oklahoma boundary to mouth.
(b)
Black River from Missouri boundary to mouth.
(c) Eleven Point River from Missouri boundary
to mouth.
(d) Ouachita River from
Lake Catherine to Louisiana boundary.
(e) Red River from Texas boundary to
Louisiana boundary.
(f) St. Francis
River from Marked Tree to mouth.
(g) Spring River from Missouri boundary to
mouth.
(h) White River below Bull
Shoals Lake to mouth. 5. Future water needs of the watershed as projected in
the Arkansas Water Plan.
S. Firm Yield: The maximum amount of water
the reservoir will yield based upon the worst period of record, recognizing
that a more severe drought than any on record may occur.
T. Interbasin Transfer: The transfer of water
between basins, except transfers across a basin boundary by a riparian, as
described in Title III Subtitle V.
U. Intermittent Stream: Those streams whose
flow is seasonal in nature and does not flow continuously. (The intent of the
Commission is to define intermittent streams by a statistical method once
sufficient streamflow data is available at the conclusion of the "Low flow
characteristics of Arkansas streams study").
V. Intrabasin Transfer: The transfer of water
within a basin, as described in Title III Subtitle IV.
W. Minimum StreamFlow: The quantity of water
required to meet the largest of the following instream flow needs as determined
on a case by case basis:
1. Aquifer
recharge.
2. Fish and
wildlife.
3. Interstate
compacts.
4. Navigation.
5. Water quality.
X. Municipal Domestic Use: The use of water
for ordinary household purposes including human consumption, laundry, bathroom
facilities, fire protection, and the watering of home gardens, which is
distributed by a central distribution system.
Y. Navigable Stream: Any watercourse that the
federal government or the laws of the
State of Arkansas declare to be navigable or that can be found to be navigable as a matter of fact.
Z. Non-Consumptive Use: The withdrawal of
water for use in a manner that results in an approximately equal volume of
water being returned to the same surface water body from which it was
withdrawn.
AA. Non-Riparian Owner:
The owner of land that is not contiguous to surface water and who has not
obtained access to surface water by lease, easement or other method prior to
March 1, 1990.
BB. Non-Riparian
Water Right: A permit issued under these regulations to use excess surface
water.
CC. Permittee: The holder of
a water right permit.
DD. Person:
Any natural person, partnership, firm, association, cooperative, municipality,
county, public or private corporation, and any federal, state or local
governmental agency.
EE.
Petitioner: A person, other than the Commission, who seeks allocation of water
through the Commission's Rules.
FF.
Regional Water District: A district created under the Regional Water
Distribution Act, Ark. Code Ann. §
14-116-101 et
seq.
GG. Riparian Landowner: The
holder in fee, leasehold, easement or other acquired access of any land that is
contiguous to surface water in the State of Arkansas. Provided, however, that
the leasehold, easement or other acquired access must have been acquired prior
to March 1, 1990. Flowage easements will not invalidate the riparian rights of
the landowner.
HH. Riparian Water
Rights: Rights to water that accrue to riparian landowners.
II. Shortage: When there is not sufficient
water in a stream to meet all beneficial uses.
JJ. Stream: A stream of water and its
channel, including springs, lakes, or marshes in which the stream originates or
through which it flows, where the stream flows in a reasonably definite
channel, but excluding a depression, swale, or gully, through which diffused
water flows.
KK. Surface Water:
Water occurring on the surface of the ground in lakes, ponds and in natural or
channelized streams.
LL. Tailwater
Recovery System: A system for recovery and reuse of water by the same
diverter.
MM. Water Year: A twelve
(12) month period beginning on October 1 of any year.
NN. Watershed: The drainage area of a stream
and its tributaries.
Section
301.4
RULES TO SUPPORT COMPACTS. Any
procedure contained in these rules may be used to support and comply with the
Red River Compact or the Arkansas River Compact.
Section 301.5
DELEGATION OF
AUTHORITY. The Commission may delegate its authority under these
rules to a local district.
SUBTITLE
II.
SURFACE WATER DIVERSION
REGISTRATION
Section
302.1
REQUIREMENT TO REGISTER.
A. All persons who divert surface water,
except as hereinafter exempted, shall report the diversion no later than March
1st for the prior water year.
B.
The reports shall be made on forms provided by the Commission and shall be made
to the Commission or to their local Conservation District.
C. Late registrations will be accepted only
upon the payment of the appropriate fee as established by Section
302.7.
Section 302.2
EXEMPTIONS. The following diversions are exempt from
the requirement of registration:
A.
Diversions by any person of less than 325,900 gallons (1 acre-foot) of water in
any water year.
B. Water diverted
from natural lakes or ponds in the exclusive ownership of one person.
C. Diffused surface
water.
Section 302.3
REPORT CONTENT. The reports shall contain information
requested on the attached (or revised) forms:
A. For water used for agriculture:
1. Number and size of diversions.
2. Name, address and phone number of water
user.
3. Crops, livestock, poultry,
or fish type grown.
4. Acreage:
(a) Irrigated.
(b) Aquacultured.
5. Quantity of water used.
6. Location:
(a) Of the diversions, (including real estate
tax bill Parcel Number).
(b) Of the
water use.
B.
For water used for other than agriculture:
1.
Number, size, location of diversions.
2. Name, address and phone number of water
user.
3. Use made of the
water.
4. Quantity of water
used.
C. Other
information deemed necessary by the Commission.
Section 302.4
NO CHANGE IN WATER
USE OR NO USE OF WATER.
A. After
the initial report in compliance with this rule, persons whose water use
remains unchanged from the prior water year need only report no change in water
use.
B. In the event that no water
is diverted during any water year and the person has registered diversions in
prior years, the person must submit a registration form showing no diversion to
maintain his priority position.
Section 302.5
CERTIFICATES OF
REGISTRATION.
A. Before July 1st
of the water year following the water year being reported, the Commission shall
furnish to the registrant a certificate of registration containing all the
pertinent information set forth by the registrant.
B. Registrants submitting registration forms
after March 1st for the prior water year or registering water that is exempt
from registration will not receive Certificates of Registration for that water
year.
C. The Commission shall
record the information received in all cases of diversions reported even if a
Certificate of Registration is not issued thereon.
Section 302.6
REVIEW OF
FORM. The Director shall annually review the form used in
obtaining the information required in registering diversions of surface water
and shall alter or amend such form as necessary to comply with laws of the
State of Arkansas and the rules of the Commission.
Section 302.7
FAILURE TO
REGISTER.
A. Any person who
fails to timely register surface water diversion as required by law and these
rules shall, in addition to registration fees, pay fees as follows:
|
1. Failure to register by March 1: |
Written notice |
|
2. Failure to register by April 1: |
$25.00 fee |
|
3. Failure to register by June 30: |
$50.00 fee |
|
4. Failure to register by September 30: |
$100.00 fee |
B.
Conservation districts shall not accept late registration without payment of
all applicable fees.
C. Late
registration penalties are to be assessed per registrant, not per
diversion.
D. The Commission, by its
Executive Director, may assess fees as provided by Ark. Code Ann. §
15-22-215
if it is determined that a registrant continues to fail to register following
September 30.
E. The maximum annual
penalty per registrant is $500 whether for ground or surface water use or
both.
F. The Commission will not
impose monetary penalties without proof that the late registrant has received
notice of the registration requirement.
Section 302.8
FEES.
A. Assessment: An annual fee of ten dollars
($10.00) will be assessed per registered withdrawal, payable at the time of
water use reporting, no later than March 1st following the reporting water
year. A delinquency in paying annual fees will constitute failure to register
for surface water withdrawal for the prior water year and will be subject to
penalties of Section
302.7.
B. Collection:
1. The Commission may delegate the
responsibility for collecting annual fees to the Executive Director or his
designee(s).
2. The Commission may
delegate the responsibility for collecting annual fees to qualified petitioning
entities.
C. Disposition:
All monies collected from fees and penalties will be deposited in the Arkansas
Water Development Fund to be used pursuant to Ark. Code Ann. §1520-207.
1. Two-thirds of such funds shall be used for
an information/education program and cost-share assistance for water
conservation and development, as provided in Section
401.4
C (7) of the Rules for the Protection and Management of Ground Water.
2. One-third of such funds may be used for
the administration of the Commission's water management programs.
SUBTITLE III.
MINIMUM STREAMFLOW
Section 303.1
MINIMUM STREAMFLOW.
Minimum streamflow is the quantity of water required to meet the
largest of the following instream flow needs as determined on a case by case
basis:
1. Aquifer recharge.
2. Fish and wildlife.
3. Interstate compacts.
4. Navigation.
5. Water quality.
Section 303.2
SHORTAGE LEVELS.
This subtitle defines levels at which water shortages occur and
removal of water from the designated water bodies will be curtailed or
prohibited.
Section 303.3
ESTABLISHMENT OF MINIMUM STREAMFLOWS DOES NOT ENSURE A SPECIFIC
STREAMFLOW. Minimum streamflow levels do not ensure a specific
streamflow or compel flow augmentation from reservoirs, impoundments or any
other sources.
Section 303.4
STREAMFLOWS AT OR BELOW SHORTAGE LEVELS.
A. When streamflows reach established
shortage levels, a shortage exists.
B. When there is a shortage, the Executive
Director shall implement the withdrawal restrictions set forth in these rules
by notifying registered riparian users and non-riparian permit holders by any
means sufficient for the service of civil
process.
SUBTITLE
IV.
PROCEDURE FOR ISSUANCE OF SURFACE WATER
PERMITS FOR INTRABASIN USE BY NON-RIPARIANS
Section 304.1
AUTHORITY. A person shall be authorized to divert excess surface
water for non-riparian use upon proper application and the granting of a permit
by the Director.
Section 304.2
DETERMINATION TO GRANT PERMIT. The Director shall
grant a permit after he determines that the water to be used is excess surface
water, as defined herein, is intended for a reasonable and beneficial use, and
will cause no significant adverse environmental impact. The water may be
diverted for storage to meet future needs. In determining the reasonability of
the proposed use the Director may consider the following:
A. The lack of availability at a reasonable
cost of alternative sources of water.
B. The environmental impact of the proposed
transfer.
C. The effect of the
proposed transfer on other lawful water uses.
Section 304.3
APPLICATION.
A. Applications for
a permit shall be on a form furnished by the Director and shall be filed with
the Director. The applicant shall disclose:
1.
The quantity of water to be diverted for direct use.
2. The quantity of water to be stored away
from the point of diversion.
3. The
total amount of water to be diverted.
4. The proposed time or times of
diversion.
5. The purpose for which
the water is to be diverted.
6. The
location of the land on which the water is to be used.
7. The proposed conservation plan.
8. If for irrigation:
(a) The area and legal description of the
lands irrigated.
(b) The types of
crops to be cultivated under irrigation during the water
year.
9. Any other
reasonable information requested by the Director.
B. All other questions contained on the form
shall be answered or stated to be not applicable.
Section 304.4
FEES.
A. A $500 fee must be submitted with an
application for a permit to make an intrabasin water transfer to a
non-riparian.
B. A $100 annual
permit renewal fee shall be collected on or before October 1st of each
year.
C. Permits shall remain valid
from year to year until date of expiration provided annual fees are not
delinquent and permit terms are honored. (See Sections
304.11
and
304.12.)
The Director may deny an application for or revoke an existing intrabasin water
transfer permit if efforts to collect either the application or annual fees
fail.
D. Installation and
maintenance of flow measurement devices shall be paid by the
permittee.
E. If the permit is not
granted, the portion of the fee applicable to the cost and installation of the
flow monitoring gauge(s) shall be refunded.
Section 304.5
PERMIT
CONDITIONS. If approved, the Director shall issue a permit and
shall designate thereon:
A. The amount of
water permitted.
B. The authorized
use.
C. The point of approved
diversion.
D. A legal description
of the land of intended use.
E.
Approval of the conservation plan.
Section 304.6
SPECIAL
CONDITIONS. The Director may place upon a permit any special
conditions necessary to ensure that the water to be diverted is excess surface
water and to guarantee a reasonable and beneficial use of the water. The
special conditions may include any other reasonable limitations or conditions
to protect the environment of the watershed of origin and to insure against an
unacceptable adverse impact of the transfer on other lawful water uses. An
example would be limitations on season or time of withdrawal.
Section 304.7
LENGTH OF
PERMIT. Permits for intrabasin transfer may be issued for a period
fixed by the Director, taking into consideration the investment required by the
permittee to utilize the water and the period reasonably required to amortize
such investment, but in no event in excess of fifty (50) years.
Section 304.8
FILING.
A. Upon the
issuance of a permit to divert to non-riparian uses, the Director shall furnish
the permit to the applicant, a copy to the Commissioners and cause a copy to be
retained in the Commission's records at the office of the Commission.
B. The permittee shall record his permit in
the office of the Circuit Clerk of the County of the point of
diversion.
Section 304.9
PERMITTEE WATER USE REPORT. All permittees shall
report the amount of water diverted during each water year of the permit
pursuant to Title III Subtitle II of these rules.
Section 304.10
CHANGE IN PERMIT
CONDITIONS.
A. Permittee shall
notify the Director of his desire to transfer the permit to another person.
Permits are freely transferable.
B.
Permittee wishing to make other changes in permit conditions shall seek prior
approval of the Director. The procedures set out in these rules shall be used
for permit modification other than as set out in Subsection
A.
Section 304.11
CANCELLATION - MISUSE. The Commission may cancel any
permit for violation of any condition contained in the permit, for use of water
for a purpose other than stated in the permit or for the diversion of more
water than permitted.
Section
304.12
CANCELLATION - NONUSE. The
Commission may cancel any permit issued for a period in excess of three (3)
years if the permittee fails to take reasonable steps to obtain the ability to
utilize the water permitted within two (2) years from the date of issuance of
the permit.
Section 304.13
IRRIGATION PERMITS RUN WITH LAND. Irrigation permits
run with the land described in the permit and can only be assigned to a
subsequent owner or lessee of the land. These permits may not be sold separate
and apart from the land, and any such attempts shall void the permit.
Section 304.14
PREDETERMINED
ALLOCATION PLAN. After an application for a permit to make an
intrabasin transfer is received, the Director where deemed desirable and
appropriate shall initiate a study consistent with the provisions of Title III
Subtitles VII, VIII, and IX hereof to determine the allocations that should be
made if a water shortage should occur. The purpose of this advance
determination is to allow immediate implementation of allocations if a water
shortage does occur. In selecting the watershed to be studied, preference shall
be given to those areas where a water shortage is most likely to
occur.
Section 304.15
WATER LEVEL MONITORING.
A. The Director may, as he determines to be
necessary, cause a staff gauge to be securely placed in the stream at the point
of diversion. Each staff gauge shall have the following clearly marked thereon:
1. Minimum StreamFlow - a zone marked in red.
If the water level is at or below this mark, all diversions shall cease except
diversions for domestic and municipal domestic use.
2. Allocation Level - a zone marked in
yellow. If the water level is in the yellow zone, only water lawfully diverted
that has not yet become subjected to reduction by allocation, water that has
been allocated or water usable without allocation (as defined hereinafter in
Section
307.2) may be diverted from the stream.
3. Normal Diversion Level - a zone marked in
green. If the water level is in the green portion of the staff gauge at the
point of diversion, all allocations shall cease, riparians may resume water
diversions and the non-riparian permittees may divert such water as shall have
been permitted to them.
4. Other
pertinent water level markings deemed appropriate by the Director.
B. It shall be unlawful for anyone
to remove or alter any staff gauges placed for these purposes and all such
staff gauges shall indicate on them that they are the property of the
Commission.
Section
304.16
APPEAL OF PERMIT DECISION. The
applicant for a water rights permit or any affected person shall have the right
to protest the action of the Director in either granting or denying the
application for a permit or to protest any special conditions that may be
placed thereon and a permittee shall have the right to protest the cancellation
of a permit. If a protest is filed by the applicant within ten (10) days of the
action of the Director or is filed by an affected person within twenty (20)
days of filing of the permit in the office of the circuit clerk of the county
of the point of diversion, a hearing shall be scheduled before the Commission
or a hearing officer that may be designated by the Commission for review of the
Director's action in the issuance, non-issuance or inclusion of special
conditions on the permit.
SUBTITLE
V.
PROCEDURE FOR ISSUANCE OF SURFACE WATER
PERMITS FOR INTERBASIN USE BY NON-RIPARIANS
Section 305.1
BASINS
DEFINED. For purposes of interbasin transfers under this Subtitle,
the State shall be divided into five (5) basins as listed below and depicted in
Exhibit 1:
A. Arkansas River Basin.
B. Delta Basin.
C. Ouachita River Basin.
D. Red River Basin.
E. White River Basin.
Section 305.2
AUTHORITY. A person shall be authorized to divert and transfer
excess surface water for interbasin use upon proper application and the
granting of a permit by the Director. Water may be diverted for storage to meet
future needs.
Section 305.3
APPLICATION.
A.
Applications for a permit shall be on a form furnished by the Director and
shall be filed with the Director. The applicant shall disclose:
1. The quantity of water to be diverted for
direct use.
2. The quantity of
water to be stored away from the point of diversion when needed.
3. The total amount of water to be
diverted.
4. The proposed time or
times of diversion.
5. The purpose
for which the water is to be diverted.
6. The location of the land on which the
water is to be used.
7. The
proposed conservation plan.
8. If
for irrigation:
(a) The area and legal
description of the lands irrigated.
(b) The kinds of crops to be cultivated under
irrigation during the water year.
9. Any other reasonable information requested
by the Director.
B. All
other questions contained on the form shall be answered or stated to be not
applicable.
Section 305.4
NOTICE AND HEARING.
A. Upon receipt of an application for the
interbasin transfer of water, the Director shall cause to be published a Notice
of Application. The notice shall be published at the expense of the applicant
at least once a week for two consecutive weeks in the newspaper having the
largest circulation in the county from which the diversion would be made, in
the county to which the diversion would be made, and in any other county
through which the diversion would pass. The notice shall be in the form and
shall set forth all pertinent information prescribed by the
Commission.
B. The application
shall be heard by the Director at a time and place to be set by the
Director.
Section 305.5
COMMISSION STAFF DETERMINATION. Prior to the hearing
the Commission staff shall have made the following determinations:
A. The supply of water available in the basin
of origin and in the basin to which proposed diversion is to be made.
B. The amount of excess surface water at the
point of diversion of the basin of origin.
C. The present and future water demands of
water users in the basin of origin.
D. Whether there are water shortages in the
basin at the point of proposed use.
E. The availability at a reasonable cost of
alternative sources of water.
Section
305.6
APPLICANT TO PROVE. The applicant
shall be prepared to prove at the hearing that:
A. The water that is the subject of the
proposed transfer can be feasibly transported out of the basin of origin to
alleviate water shortages existing at the point of proposed use.
B. That other available supplies and sources
of water in the watershed to which it is being diverted are
inadequate.
C. That the demands
placed upon available water supplies in the watershed to which it is being
diverted exceed the water available for beneficial use.
D. That no significant damages should result
to the basin of origin as a result of the proposed
transfer.
Section 305.7
DIRECTOR'S DECISION.
A. Within thirty (30) days following the
hearing, the Director shall render his decision in granting or denying the
application for interbasin transfer of water, with any special conditions to be
placed thereon to protect the watershed of the basin of origin and to insure
against an adverse impact of the transfer on other lawful water
users.
B. The Director shall grant
a permit after he determines that:
1. The
water to be used interbasin by a non-riparian will be excess surface water, as
defined herein.
2. The proposed use
is a reasonable and beneficial use.
3. The transfer will cause no significant
adverse environmental impact in the basin of origin.
C. In determining the reasonableness of the
proposed use the Director may consider the following:
1. The lack of availability at a reasonable
cost of alternative sources of water.
2. The environmental impact of the proposed
transfer.
3. The effect of the
proposed transfer on other lawful water uses.
Section 305.8
PERMIT CONDITIONS.
If approved, the Director shall issue a permit and shall designate
thereon:
A. The amount of water
permitted.
B. The authorized
use.
C. The point of approved
diversion.
D. A legal description
of the land of intended use.
E.
Approval of the Conservation plan.
Section 305.9
SPECIAL
CONDITIONS.
A. The Director may
place upon a permit any special conditions necessary to ensure that the water
to be diverted is excess surface water and to guarantee a reasonable and
beneficial use of the water. The special conditions may include any reasonable
limitations or conditions to protect the environment of the watershed of origin
and to insure against an unacceptable adverse impact of the transfer on other
lawful water uses. An example would be limitations on season or time of
withdrawal.
B. The Director may
require the applicant to transfer more water than the applicant plans to use so
that it may be made available to others in the immediate vicinity of the
proposed route of transportation. The permittee may also be required to
contract with other users for the transportation of a specific quantity of
water, for a specific period, at a reasonable price to be paid to the permittee
by the other users. The price must be based only on the cost of transportation
of the water and not for the water itself.
Section 305.10
LENGTH OF
PERMIT. Permits for interbasin transfer may be issued for a period
fixed by the Director, taking into consideration the investment required by the
permittee to utilize the water and the period reasonably required to amortize
such investment, but in no event in excess of fifty (50) years.
Section 305.11
FILING. Upon the issuance of a permit to divert to
non-riparian uses, the Director shall furnish the permit to the applicant, a
copy to the Commissioners and cause a copy thereof to be retained in the
Commission's records at the office of the Commission. The permittee shall
record his permit in the office of the Circuit Clerk in each County through
which the diverted water shall pass.
Section
305.12
PERMITTEE WATER USE REPORT. All
permittees shall report the amount of water diverted during each water year of
the permit pursuant to Title III Subtitle II of these rules.
Section 305.13
CHANGE IN PERMIT
CONDITIONS.
A. Permittee shall
notify the Director of his desire to transfer the permit to another person.
Permits are freely transferable.
B.
Permittee wishing to make other changes in permit conditions shall seek prior
approval of the Director. The procedures set out in these rules shall be used
for permit modification other than as set out in Subsection
(a).
Section 305.14
FEES.
A. A $500 fee
must be submitted with an application for a permit to make an interbasin water
transfer to a non-riparian.
B. A
$100 annual permit fee shall be collected on or before October 1st of each
year.
C. Permits shall remain valid
from year to year until date of expiration provided annual fees are not
delinquent and permit terms are honored. (See Sections
305.15
and
305.16.)
The Director may deny an application or revoke an existing interbasin water
transfer permit if efforts to collect either the application or annual fees
fail.
D. Installation and
maintenance of flow measurement devices shall be paid by the
permittee.
E. If the application is
not approved, the portion of the fee applicable to the cost of the water flow
gauge(s) and its installation shall be refunded.
Section 305.15
CANCELLATION -
MISUSE. The Commission may cancel any permit for violation of any
condition contained in the permit, for use of water for a purpose other than
stated in the permit or for the diversion of more water than
permitted.
Section 305.16
CANCELLATION - NONUSE. The Commission may cancel any
permit issued for a period in excess of three (3) years if the permittee fails
to take reasonable steps to obtain the ability to utilize the water permitted
within two (2) years from the date of issuance of the permit.
Section 305.17
IRRIGATION
PERMITS RUN WITH LAND. Irrigation permits run with the land
described in the permit and can only be assigned to a subsequent owner or
lessee of the land. Permits may not be sold separate and apart from the land,
and any such attempts shall void the permit.
Section 305.18
PREDETERMINED
ALLOCATION PLAN. After an application for a permit to make an
interbasin transfer is received, the Director, where deemed desirable and
appropriate, shall initiate a study consistent with the provisions of Title III
Subtitles VII, VIII, and IX hereof to determine the allocations that should be
made if a water shortage should occur. The purpose of this advance
determination is to allow immediate implementation of allocations if a water
shortage does occur. In selecting the watershed to be studied, preference shall
be given to those areas where a water shortage is most likely to
occur.
Section 305.19
WATER LEVEL MONITORING. The same procedure established
herein in Section
304.15
for water flow gauge(s) at the point of diversion of water by a non-riparian
for intrabasin transfers shall be applicable to transfers by a non-riparian for
interbasin transfers.
Section
305.20
APPEAL. The applicant or any
affected person shall have the right to protest the decision of the Director in
granting or denying the application for the interbasin transfer of surface
water or to protest any special conditions placed on the approval. The appeals
procedure is set out in Title I Subtitle V of the Commission's Rules Of
Organization and General Operations. No interbasin transfer of water shall be
made until the time for appeal has expired.
SUBTITLE VI.
INTERSTATE
TRANSFER
Section 306.1
APPLICATION. No application for interstate transfer
shall be considered by the Commission unless it contains all information
requested by the Commission including the following:
A. Amount of water to be
transferred.
B. Certification that
a copy of application has been filed with the appropriate agency of the water
receiving state.
C. Method and
route of transfer.
D. Point(s) of
proposed diversion.
E. Point(s) of
use.
F. Purpose of use.
G. Water Quality impact of proposed
diversion.
Section 306.2
FEES.
A. A $500 fee
must be submitted with an application for a permit to make an interstate water
transfer to a non-riparian.
B. A
$100 annual permit renewal fee shall be collected on or before October 1st of
each year.
C. Permits shall remain
valid from year to year until date of expiration provided annual fees are not
delinquent and permit terms are honored.
D. The Director may deny an application for
or revoke an existing interstate water transfer permit if efforts to collect
either the application or annual fees fail.
E. Installation and maintenance of flow
measurement devices shall be paid by the permittee.
Section 306.3
COMMISSION
NOTIFICATION. Upon receiving an application, containing the
information listed in the above paragraph, the Director shall notify the
Commission at its next regular meeting.
Section
306.4
NOTICE AND HEARING. The Commission
shall schedule a public hearing on the request as soon as reasonably possible.
Notice of the hearing shall be published at least once a week for two (2)
consecutive weeks in the newspaper having the greatest circulation in each of
the counties involved.
Section
306.5
COMMISSION DETERMINATION. Within
120 days after the hearing the Commission must determine whether the out of
state water transfer would be in the public interest of the citizens of
Arkansas. In reaching that decision, the Commission must consider the following
factors:
A. The supply of water available in
Arkansas.
B. The present and future
water demands of water users in Arkansas.
C. Whether there are water shortages in
Arkansas.
D. Whether the water to
be transported could feasibly be transported to alleviate water shortages
within Arkansas.
E. The supply and
source of water available to the applicant in the state of intended
use.
F. The demands placed upon the
applicant's supply in the state of intended use.
Section 306.6
REPORT AND
RECOMMENDATION.
A. The Commission
shall submit its report and recommendations to the next regular session of the
Arkansas General Assembly.
B. If
the Commission recommends the interstate transfer of water, it shall recommend
the price to be paid to the State of Arkansas for all water transferred and how
allocation procedures will apply during times of water shortage.
C. If approved by the General Assembly, a
compact should be negotiated with the state of intended use and any other state
through which the water would be transported.
SUBTITLE VII.
ALLOCATION OF
SURFACE WATER DURING PERIODS OF WATER SHORTAGE
Section 307.1
ALLOCATION DURING
SHORTAGES. Whenever a shortage of water in any stream exists, the
Commission may on its own initiative, or on the petition of any person claiming
to be affected by such shortage of water, after notice and hearing, allocate
the available water among the uses affected by the shortage of water in a
manner that each may obtain an equitable portion of the available
water.
Section 307.2
WATER USABLE WITHOUT ALLOCATION. The following water
is usable without allocation:
A. Diversions
by any persons of less than 325,900 gallons (1 acre-foot) of water in any water
year.
B. Water captured by
tailwater recovery systems.
C.
Water diverted from lakes, ponds, reservoirs, or springs in the exclusive
ownership of one person.
D. Water
previously captured whether transmitted by ditch, channel or pipe.
E. Water diverted from intermittent
streams.
F. Diffused surface
water.
G. Water captured by
instream pit reservoirs, dams constructed pursuant to a lawful permit, or low
water weirs and water stored in federal impoundments.
H. Non-consumptive usage.
Section 307.3
RESERVED
WATER. The following uses and needs shall have a reserved water
right, prior to allocations for other uses and needs:
A. Domestic and municipal domestic.
B. Minimum streamflow.
C. Federal water rights.
Section 307.4
CRITERIA FOR
ALLOCATION. All allocations shall give reasonable preference first
to sustaining life, then to maintaining health, and finally to increasing
wealth. The allocations shall reserve the water required for domestic and
municipal-domestic use, federal water rights and for minimum streamflow and
shall then give preference in the following order for water uses and for types
of water diversions:
A. Priority of Water Use:
1. Agriculture.
2. Industry.
3. Hydropower.
4. Recreation.
B. Priority of Water Diversions:
1. Riparian.
2. Non-riparian intrabasin
transfer.
3. Non-riparian
interbasin transfer.
4. Out of
state transfer.
Section
307.5
RESERVED WATER - PUBLIC SYSTEMS.
Public water systems historically dependent upon the affected stream shall
receive a reserved water right for municipal domestic water use prior to
allocations for other uses.
Section
307.6
RESERVED WATER - MINIMUM STREAM
FLOWS. Minimum stream flows as established pursuant Title III
Subtitle III of these rules shall receive a reserved water right prior to
allocations for other uses.
Section
307.7
RESERVED WATER - FEDERAL WATER
RIGHTS. There may be some water over which the United States has a
preemptive right that is superior to rights of others.
Section 307.8
REGISTERED RIPARIAN
USER. Any riparian landowner who has properly registered a water
diversion with the Commission in compliance with Ark. Code Ann. §1522-215
and the rules of the Commission shall be granted an allocation of
water.
Section 307.9
UNREGISTERED RIPARIAN USER. Any riparian landowner who has not
previously diverted water nor timely registered any previous water diversions
with the Commission, may not be granted any allocation of water during times of
shortage above that required for domestic use.
Section 307.10
PERMITTED
NON-RIPARIAN USER. Non-riparian uses, including intrabasin,
interbasin, and interstate transfers, previously authorized by the Commission
which are beneficial and which do not interfere with the uses enumerated herein
in Sections
307.5,
307.6,
307.7,
307.8
and
307.9
may be granted an allocation.
SUBTITLE VIII.
PROCEDURE
FOR THE ALLOCATION OF SURFACE WATER DURING PERIODS OF
SHORTAGE
Section 308.1
INFORMATION REQUIRED IN THE PETITION. The following
information must be included in any petition for allocation:
A. Name, address, telephone number of
petitioner.
B. Water diversion
registration certificate numbers of petitioner from previous years, if
any.
C. Current water permit
number, if applicable.
D. Name of
stream from which diversion is being made or from which diversion is
sought.
E. Legal description of
petitioner's land for water diversion to include county, section, township and
range.
F. Petitioner's requirements
for use of water, if for irrigation of farm crops - type of crop (soybeans,
rice, etc.) and acreages of each type.
G. Name and address of any person allegedly
depriving the petitioner of his lawful water right and a full explanation of
that water use.
H. Vicinity details
on topographic or other appropriate map, with outline of irrigated acres and
points of diversions.
Section
308.2
NOTICE OF PETITION AND INFORMAL
RESOLUTION. Within five (5) working days after receipt of a
petition from a person the Director finds eligible to receive an allocation of
water, the Director shall notify the affected persons by certified mail that a
petition has been received by the Commission requesting an allocation of water.
This notice will advise the affected persons of the following:
A. Name of petitioner and substance of the
petition.
B. The affected persons
right to discuss the matter with the petitioner and the Commission staff, as an
alternative to a hearing on mandatory allocation by the
Commission.
Section 308.3
INFORMAL RESOLUTION - FAILURE TO RESOLVE. If an
affected person fails to either respond to the Director's invitation to discuss
the complaint or does not agree to voluntarily share the available water
supplies within a period of seven (7) days after receipt of the Director's
letter of notification, the Commission will then proceed to initiate the
process of allocation if the Commission finds a water shortage exists or is
imminent.
SUBTITLE IX.
FORMAL ALLOCATION OF SURFACE WATER DURING PERIOD OF WATER
SHORTAGE
Section 309.1
HEARING DATE AND LOCATION. The Director shall
establish a date for a public hearing on the matter. If matters to be
considered at the hearing are of general application throughout the State, the
hearing shall be held in the City of Little Rock, and notice with respect
thereto shall be published in a newspaper of general circulation throughout the
State. If the purpose of the hearing relates only to surface water within one
county, that hearing shall be held in the county involved, and notice of the
hearing shall be published in the newspaper having the greatest circulation in
that county. If the purpose of the hearing is with respect to surface water in
more than one county, the hearing shall be held in one of those counties and
notice shall be published in one or more newspapers which together have the
greatest circulation in all of the counties involved.
Section 309.2
HEARING
NOTICE. A notice of this hearing will be sent by certified mail to
the petitioner and all affected persons.
Section
309.3
HEARING OFFICER. The hearing will
be chaired by a commissioner, the Director or a member of the Commission's
staff designated by the Director.
Section
309.4.
PRE-HEARING STAFF REVIEW. Prior to
the public hearing, the Commission staff, in conjunction with other interested
federal or state agencies will make an investigation of the alleged water
shortage which shall include the following information:
A. Verification of information submitted by
petitioner.
B. Water use
requirements of all persons lawfully taking water from the stream.
C. Classification of diversions as either
riparian or non-riparian.
D.
Quantity of water in stream under varying flow levels.
E. Determination of in-stream beneficial uses
and quantity of water required therefor.
F. Quantity of water available for diversion
under varying flow levels.
G.
Quantity allowable to each diverter on a daily basis.
Section 309.5
NOTICE OF
DIRECTOR'S RECOMMENDATION. Prior to the public hearing, the other
affected persons will be advised of the Director's findings of their water use
requirements and will also be advised that the Commission will ask for
verification during the public hearing.
Section
309.6
COMMISSION DECISION. All
information gathered by the Commission staff and presented at the hearing shall
be analyzed and considered by the Commission before making allocations. Within
ten (10) working days after the public hearing, the Commission will make a
determination concerning the alleged water shortage and issue the appropriate
orders to the affected persons.
Section
309.7
NOTICE OF DECISION. The petitioner
and all affected persons will be notified of the Commission's determination by
certified mail.
Section 309.8
APPEALS. The petitioner or any affected person shall
have the right to appeal decision under this subtitle. Appeals procedure is set
out in Title I Subtitle V of the Commission's Rules of Organization and General
Operation.
SUBTITLE X.
COMMISSION INITIATED ALLOCATION
Section 310.1
PROCEDURE. If the Commission determines that a shortage exists and
decides that allocation of available water is necessary, the Director shall
notify all registered and permitted diverters that the conditional allocation
orders previously assigned are in effect. If conditional allocation orders have
not been issued, hearing procedures shall be initiated as provided herein in
Title III Subtitle IX.
SUBTITLE
XI.
IMPLEMENTATION OF ALLOCATION
PLAN
Section 311.1
ALLOCATION PLAN - IN GENERAL. Allocations will be
expressed as a percentage of available water in the stream under varying levels
of flow on a daily basis. Percentages will vary from 0% (the level of minimum
streamflow) to 100%. Each diverter who is assigned a water allocation will be
provided a chart containing allowable daily pumping allocations expressed both
as a percentage and as a quantitative measure. If a staff gauge is determined
by the Director to be necessary, the charts shall also contain the
corresponding applicable staff gauge reading. Such streamflow staff gauge at
the point of diversion will have markings relevant to the chart, and diversions
are permitted when the streamflow is in the yellow zone on the gauge, as
defined in Section
304.15.
Section 311.2
CONSERVATION
PLAN. As a part of the allocation plan, the Commission shall
require the development and implementation of a conservation plan by any and
all diverters. The conservation plan may be required with or without a
reduction in a diverter's withdrawals.
Section
311.3
INSTALLATION OF MONITORING DEVICES.
Unless installed by the Commission, diverters assigned a water allocation will
be responsible for the installation and maintenance of such water level gauges
at diversion points as the Commission may direct. Assistance in installation
and maintenance of gauges may be provided by the Commission.
Section 311.4.
ALLOCATION
LEVEL. If the stream flow reaches the allocation level (yellow
zone on staff gauge), whether allocations have been implemented by the
Commission or not, the diverter shall comply with the allocation assigned
him.
Section 311.5
NON-DIVERSION LEVEL. If the streamflow reaches the
minimum streamflow (red zone on staff gauge), whether allocations have been
implemented by the Commission or not, all diverters must stop all pumping
immediately except for water withdrawn for domestic and municipal-domestic
use.
Section 311.6
WATER LEVEL MONITORING. When an allocation has been
implemented, it will be the responsibility of the diverter to read the gauge
nearest his point of diversion on a frequency to be determined by the
Director.
Section 311.7
NO TIME OR RATE RESTRICTIONS PROVIDED DAILY ALLOCATIONS NOT
EXCEEDED. There will be no restriction on the time or rate of
pumping when the level of flow is above the diverters designated minimum staff
gauge reading, provided daily pumping allocations are not exceeded.
Section 311.8
CEASE
ALLOCATION. When the Director determines that sufficient water
exists in a stream to meet the requirements of all diverters, (at or above
green zone on staff gauge) the allocations will cease to be applicable and all
diverters will be notified by the Director.
SUBTITLE XII.
PENALTIES
Section 312.1
LOSS OF ALLOCATION. Failure to comply with the
provisions of these rules will invalidate any allocation previously granted by
the Commission and willful violations may prejudice their future applications
for permits or allocations.
Section
312.2
ADDITIONAL PENALTIES. In addition
to other penalties authorized by these rules, the Commission may invoke
penalties as provided in Ark. Code Ann. §
15-22-204.
All penalties received shall go to the Arkansas Water Development
Fund.
SUBTITLE XIII.
EMERGENCY ALLOCATIONS
Section 313.1
TIME FRAME
COMPRESSION. When the Commission either receives a petition for
allocation or determines that a shortage exists, which in the opinion of the
Commission requires an immediate determination of the need for allocation, an
emergency may be declared by the Commission and the time frames for actions set
forth in these rules may be shortened to whatever extent the Commission deems
necessary.
Section 313.2
MODIFICATION FOR PUBLIC HEALTH, SAFETY, OR WELFARE.
When the Commission determines that the shortage of water is so severe that an
allocation or minimum streamflow is insufficient such that public health,
safety or welfare is significantly affected, they may declare an emergency and
modify any allocation or minimum streamflow developed under these rules such
that the effects upon the public health, safety, or welfare is minimized.
SUBTITLE XIV.
WHITE RIVER MINIMUM STREAM FLOW LEVELS
Section 314.1
WHEN RULES BECOME
OPERATIVE.
A. When the registered
level of water withdrawn for riparian use exceeds 300 cubic feet per second
("cfs") from the main stem of the White River, this subtitle shall become
operative for riparian withdrawals.
B. When the registered level of water
withdrawn for non-riparian use exceeds 300 cubic feet per second ("cfs") from
the main stem of the White River, this subtitle shall become operative for
non-riparian withdrawals.
C. Once
this subtitle becomes operative for either class, riparian or non-riparian,
this subtitle will remain in effect until the Commission notifies all
registered users of the affected class otherwise.
Section 314.2
APPLICABILTY,
REACHES, AND SEASONS. This subtitle applies to the main stem of
the White River in Arkansas from below Bull Shoals Dam to its confluence with
the Mississippi River. See Exhibit 2 (Map of White River Reaches and Gauges).
A. For the purposes of this subtitle the
White River is divided into three (3) reaches:
1. Bull Shoals Dam to the Calico Rock
gauge,
2. Calico Rock gauge to the
Newport gauge,
3. Newport gauge to
the confluence with the Mississippi River.
B. Streamflow data for each reach will be
collected from gauges operated by the United States Army Corps of Engineers or
United States Geological Survey and identified in Exhibit 2. When the volume of
water crossing the location of each gauge falls to the gauge levels identified
in Sections
314.3,
314.4,
and
314.5,
users must cease withdrawals.
Section
314.3
REACH 1: BULL SHOALS TO CALICO
ROCK.
Reach 1
When this subtitle is operative and gauge levels drop to or below levels indicated for a particular class of use, all out-of-stream withdrawals for that class of use must cease.
|
Registered Riparian Use |
Non-Riparian Permit Holders |
|||
|
Calico Rock Gauge Level |
Flow in Cubic Feet per Second (cfs) |
Calico Rock Gauge Level |
Flow (cfs) |
|
|
January |
2.4 |
2,000 |
3.0 |
2,880 |
|
February |
2.4 |
2,000 |
3.0 |
2,880 |
|
March |
2.4 |
2,000 |
3.0 |
2,880 |
|
April |
2.4 |
2,000 |
3.0 |
2,880 |
|
May |
2.4 |
2,000 |
3.0 |
2,880 |
|
June |
2.4 |
2,000 |
3.0 |
2,880 |
|
July |
2.4 |
2,000 |
3.0 |
2,880 |
|
August |
2.4 |
2,000 |
3.0 |
2,880 |
|
September |
2.4 |
2,000 |
3.0 |
2,880 |
|
October |
2.4 |
2,000 |
3.0 |
2,880 |
|
November |
2.4 |
2,000 |
3.0 |
2,880 |
|
December |
2.4 |
2,000 |
3.0 |
2,880 |
Section 314.4
REACH 2: CALICO ROCK TO NEWPORT.
Reach 2
When this subtitle is operative and gauge levels drop to or below levels indicated for a particular class of use, all out-of-stream withdrawals for that class of use must cease.
|
Registered Riparian Use |
Non-Riparian Permit Holders |
|||
|
Newport Gauge Level |
Flow (cfs) |
Newport Gauge Level |
Flow (cfs) |
|
|
January |
1.0 |
6,400 |
2.0 |
7,740 |
|
February |
1.0 |
6,400 |
2.0 |
7,740 |
|
March |
3.0 |
9,170 |
4.0 |
10,700 |
|
April |
3.0 |
9,170 |
4.0 |
10,700 |
|
May |
3.0 |
9,170 |
4.0 |
10,700 |
|
June |
1.0 |
6,400 |
2.0 |
7,740 |
|
July |
-1.0 |
4,030 |
1.0 |
6,400 |
|
August |
-1.0 |
4,030 |
1.0 |
6,400 |
|
September |
-1.0 |
4,030 |
1.0 |
6,400 |
|
October |
-1.0 |
4,030 |
1.0 |
6,440 |
|
November |
0.0 |
5,160 |
1.0 |
6,440 |
|
December |
1.0 |
6,400 |
2.0 |
7,740 |
Section 314.5
REACH 3: NEWPORT TO MOUTH OF
MISSISSIPPI.
Reach 3
When this subtitle is operative and gauge levels drop to or below levels indicated for a particular class of use, all out-of-stream withdrawals for that class of use must cease.
|
Registered Riparian Use |
Non-Riparian Permit Holders |
|||
|
Clarendon Gauge Level |
Flow (cfs) |
Clarendon Gauge Level |
Flow (cfs) |
|
|
January |
15.0 |
15,900 |
17.2 |
19,610 |
|
February |
15.0 |
15,900 |
18.7 |
22,700 |
|
March |
16.1 |
17,590 |
21.0 |
27,610 |
|
April |
16.1 |
17,590 |
24.2 |
36,940 |
|
May |
16.1 |
17,590 |
24.1 |
36,640 |
|
June |
9.0 |
7,125 |
18.0 |
21,220 |
|
July |
9.0 |
7,125 |
11.5 |
10,670 |
|
August |
9.0 |
7,125 |
10.8 |
9,650 |
|
September |
9.0 |
7,125 |
10.8 |
9,650 |
|
October |
9.0 |
7,125 |
10.8 |
9,650 |
|
November |
10.8 |
9,650 |
11.8 |
11,050 |
|
December |
15.0 |
15,900 |
16.1 |
17,590 |
EXHIBIT 1 BASINS
EXHIBIT 2
White River Gauges and Reaches
Gauges on the White River governing withdrawals from the main stem of the White River when Minimum Streamflow Rules are in effect.
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