Title: Appendix - Mississippi Conservation and Development of Water Resources Act
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Title: Appendix - Mississippi Conservation and Development of Water Resources Act
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Language: English
Publisher: University of Michigan
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann's Collections - Appendix - Mississippi Conservation and Development of Water Resources Act
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 14
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003146
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APPENDIX

Mississippi Conservation and Development
of Water Resources Act


Mississippi Code Ann.:
5956-01(a). Declaration of Policy: It is hereby declared that
the general welfare of the people of the State of Mississippi re-
quires that the water resources of the state be put to beneficial use
to the fullest extent of which they are capable, and that the waste
or unreasonable use, or unreasonable method of use, of water be
prevented, and that the conservation of such water be exercised with
the view to the reasonable and beneficial use thereof in the interest
of the people, and that the public and private funds for the promo-
tion and expansion of the beneficial use of water resources shall be
invested to the end that the best interests and welfare of the people
is served.
(b) Water occurring in any watercourse, lake or other natural
water body of the state, is hereby declared to be public waters and
public wealth of the state and subject to appropriation in accordance
with the provisions of this act, and the control and development and
use of water for all beneficial purposes shall be in the state, which,
in the exercise of its police powers, shall take such measures as
shall effectuate full utilization and protection of the water resources
of Mississippi.
(c) Nothing in this act shall be construed or interpreted as af-
fecting ground or subterranean water rights or usage.
5956-02. The words and phrases when used in this act shall,
for the purposes of this act, have the meanings respectively ascribed
to them in this section, except in those instances where the context
clearly indicates a different meaning.
(a) "Person" Every natural person, firm, partnership, asso-
ciation, co-operative, public and private corporations, irrigation or
other improvement district and any state or federal agency.
(b) "Surface Water" That water occurring on the surface of
the ground and "Ground Water" That water occurring beneath the
surface of the ground.
(c) "Domestic Uses" The use of water for ordinary household
purposes, the watering of farm livestock, poultry and domestic ani-
mals and the irrigation of home gardens and lawns.
589







WATER RESOURCES


(d) "Municipal Use" The use of water by a municipal govern-
ment and the inhabitants thereof, primarily to promote the life,
safety, health, comfort and business pursuits of the inhabitants. It
does not include the irrigation of crops, although within the cor-
porate boundaries.
(e) "Beneficial Use" The application of water to a useful pur-
pose that inures to the benefit of the water user and subject to his
dominion and control but does not include the waste of water.
(f) "Appropriator" The person who obtains a permit from the
board authorizing him to take possession by diversion or otherwise
and to use and apply an allotted quantity of water for a designated
beneficial use, and who makes actual use of the water for such pur-
pose.
(g) "Appropriation" (1) The use of a specific amount of water
at a specific time and at a specific place, authorized and allotted
by the board for a designated beneficial purpose within the specific
limits as to quantity, time, place and rate of diversion and with-
drawal.
(2) The right to continue the use of water having actually
been applied to any beneficial use at the time of the effective date
of this act, or within three (3) years prior thereto to the extent of
the beneficial use made thereof. Provided, that it is not the intent
of this act that any person making use of any watercourse for waste
disposal or in pollution abatement, on the effective date of this act
shall be construed as having any vested right to pollute the waters
of the watercourse.
(3) The right to take and use water for beneficial purposes
where a person is bona fide engaged in the construction of works
for the actual application of water to a beneficial use at the time of
the effective date of this act, provided such works shall be complet-
ed and water is actually applied for such use within three (3) years
after this act becomes effective, with extension of not more than
seven (7) years in the discretion of the board. It is not the intent,
however, to validate any claim to the use of water, or for rights of
construction looking to the use of water, not lawful on the effective
date of this act.
(h) "Watercourse" Any natural lake, river, creek, cut or
other natural body of fresh water or channel having definite banks
and bed with visible evidence of the flow or occurrence of water,
except such lakes without outlet to which only one landowner is ri-
parian.
(i) "Established average minimum flow" When reasonably re-
quired for the purposes of this act, the board shall determine and
establish the average minimum flow for a given stream at a given







AND THE LAW


point thereon. The "average minimum flow" as used in this act
shall be the average of the minimum daily flow occurring during each of
the five (5) lowest years in the period of the preceding twenty (20)
consecutive years. Such determinations shall be based upon availa-
ble stream-flow data, supplemented, when available data is incom-
plete, by reasonable calculations.
(j) "Board" The Board of Water Commissioners of the State
of Mississippi.
(k) "Water Engineer" The water engineer of the Board of
Water Commissioners of the State of Mississippi.
5956-03. Nothing in this act shall be construed as making
same applicable to dredging or washing of sand and gravel.
5956-04(a). After April 1, 1958, no right to appropriate or
use water subject to appropriation shall be initiated or acquired ex-
cept upon compliance with the provisions of this act, and no person
shall take water from a stream, lake or other watercourse without
having a valid right to do so. Any person convicted of violating the
provisions hereof shall be fined not to exceed one hundred dollars
($100.00), or be imprisoned not to exceed thirty (30) days, or both,
in the discretion of the court; provided however, nothing herein
shall interfere with the customary use of water for domestic pur-
poses, and the user of water for domestic purposes may elect to
establish a right to the use of such water under the procedures pro-
vided in this act; and provided, further, that nothing herein shall
operate to deprive any landowner of the right to the use of the water
from a spring arising on his land so long as such use does not in-
terfere with the right of any water user below; and provided, fur-
ther, that nothing herein shall interfere with a landowner's right to
place a dam across a gully on his property or across a stream
that originates on his property so long as provision is made for
continued established average minimum stream flow, if and when
such flow is required to protect the rights of water users below.
(b) Subject to the common law, or other lawful water rights of
others, any person may build and maintain a dam on any stream
having a minimum flow of not more than one half million gallons of
water per day and utilize up to three hundred (300) acre feet of the
impounded water without a permit from the board so long as such
action does not affect the established average minimum flow in the
stream below the dam, and provided, however, that any such per-
son who seeks to build and maintain a dam on such stream within
the territorial limits of any watercourse lying in whole or in part
within a levee district duly constituted under the laws of this state
shall first obtain permission from the levee board of such levee
district.








WATER RESOURCES


(c) The board shall have the authority to permit the appropria-
tion of water of any stream only in excess of the established aver-
age minimum flow as based upon records or computations by the
board; provided, however, exceptions may be made for domestic
and municipal users; and provided, further, that the board may au-
thorize any appropriator to use the established minimum flow upon
written assurance that such water will be immediately returned to
the stream in substantially the same amount to insure the mainte-
nance at all times of the average minimum flow.
(d) No appropriation of water shall be authorized that will im-
pair the effect of stream standards set under the pollution control
laws of this state based upon a minimum average stream flow.
(e) No appropriation of water shall be authorized or continued
that will impair the navigability of any navigable watercourse. A
determination of impairment by the Corps of Engineers of the United
States Army shall constitute prima facie evidence of such impair-
ment.
5956-05. No water appropriation acquired pursuant to law
shall be declared forfeited and surrendered except by a court of
competent jurisdiction as other property rights are determined. Pro-
vided, however, upon good cause shown, the board may modify or
terminate any appropriation at any time.
5956-06. The right of the appropriator and his successors to
the use of water shall terminate when he ceases for three (3) con-
secutive years to use it for the specific beneficial purpose author-
ized in his permit or license; provided, however, that upon his ap-
plication prior to the expiration of said three (3) year period for
extension of said permit or license, the board may grant such ex-
tension without the loss of priority.
5956-07. Appropriation of surface waters of the state shall
not constitute absolute ownership or absolute rights of use of such
waters, but such waters shall remain subject to the principle of
beneficial use. It shall be the duty of the board to approve all ap-
plications made in such form as shall meet the requirements of this
act and such rules and regulations as 'shall be promulgated by the
board, and which contemplate the utilization of water for beneficial
purposes, within reasonable limitations, provided, the proposed use
does not prejudicially and unreasonably affect the public interest. If
it is determined that the proposed use of the water sought to be ap-
propriated is not for beneficial purposes, is not within reasonable
limitations, or be detrimental to the public interest, it shall be the
duty of the board to enter an order rejecting such application or
requiring its modification.







AND THE LAW


5956-08. For the administration of this act there is hereby
created a Board of Water Commissioners of the State of Mississip-
pi, consisting of seven (7) members appointed by the governor, by
and with the advice and consent of the senate, whose terms of of-
fice shall be for a period of four (4) years as follows: One from
each of the congressional districts as now constituted, and one from
the state at large. At all times the membership of said board
shall have represented on it at least one member well versed in
each of the major types of water users in the state as follows:
recreational, industrial, municipal, and agricultural. The chairman
shall be elected by the members of the board.
5956-09. The governor shall call a meeting of the board with-
in thirty (30) days after its appointment. At such first meeting the
board shall elect one of its members as chairman and one as a
secretary. Each member of the board shall receive fifteen dollars
($15. 00) per day, not to exceed sixty (60) days in any fiscal year,
and actual traveling expenses while in the performance of the duties
for which appointed, and such sums shall be paid from the general
fund of the state.
5956-10. The board is authorized to employ a water engineer
and such other personnel as may be necessary, all of whom shall
serve during the pleasure of the board, at such salaries as shall be
fixed by the board. The water engineer may act as executive offi-
cer and advisor to the board in all matters pertaining to the distri-
bution and conservation of surface waters of the state as provided
by this act. The person appointed as water engineer shall be a li-
censed engineer, trained in hydraulics and hydrology, qualified by
experience, knowledge and personality to serve as required by the
board and to represent it whenever required.
5956-11. (a) The board shall co-operate with all persons and
agencies interested in regulating and conserving the use of water.
(b) The board shall establish such units of measurement as are
necessary in the administration of this act.
5956-12. As soon as practicable, the board shall inventory
the water resources of the state and gather such adequate data as
may be helpful in the administration of this act. The board may
co-operate with any agency of the federal or state governments in
accumulating such data.
5956-13. (a) The board shall make such observations and meas-
urements as will enable it to administratively determine and estab-
lish the rights of all water users who, on the effective date of this








WATER RESOURCES


act, are making beneficial use of water, and shall afford such water
users an opportunity to be heard.
(b) Such administrative determination of rights, as provided for
in this section, shall be made the subject of a written order, the
original of which shall be furnished the person concerned. Such ob-
servations and measurements as were made shall be reduced to
writing and filed with a copy of the order of determination certified
to by the chairman of the board, in the office of the clerk of the
chancery court in the county in which the point of diversion exists.
(c) Service of notice shall be deemed completed upon depositing
the notice in the post office, as registered mail, addressed to the
person concerned at his last known post office address. The order
of determination of the board shall be in full force and effect from
the date of its entry in the records of the office of the clerk of the
chancery court until its operation shall be stayed by an order of a
court of competent jurisdiction.
5956-14. The board shall divide the state into water districts
with reference to water resources; however, no district shall be
created until a necessity therefore exists.
5956-15. The following are hereby declared to constitute un-
appropriated waters: (a) All water which has never been appropri-
ated. (b) All water heretofore appropriated which has not been in
process, from the date of the initial act of appropriation, of being
put, with due diligence in proportion to the magnitude of the work
necessary properly to utilize it for the purpose of appropriation, or
which has ceased to be put to that useful or beneficial purpose for
which appropriated. (c) All water appropriated pursuant to author-
ity of the board which has ceased to be put to the useful or benefi-
cial purpose for which it was appropriated. (d) Water which having
been appropriated or used seeps or flows back into a watercourse.
5956-16. Any person intending to acquire an appropriate right
to any of the surface streams, lakes and other watercourses of the
state for beneficial use, may do so only by making application to
the board for a permit to make such appropriation, with a fee of
three dollars ($3.00) accompanying such application. The applica-
tion shall set forth: (a) the name and post office address of the ap-
plicant; (b) the source of water from which the appropriation shall
be made; (c) the amount of water sought, in standard units of meas-
urement; (d) the location of the proposed works for the diversion
and use of the water, including such maps or plats as may be nec-
essary for positive identification; (e) the estimated time for the com-
pletion of the works; (f) the estimated time for the first actual


I







AND THE LAW 595

application of the water for the beneficial use proposed; (g) if for
irrigation use, a description of the land to be irrigated by designat-
ing the number of irrigable acres, and its relative location with re-
spect to the source of the water supply; (h) if for municipal water
supply, or the supply of an adjacent area to be served by the mu-
nicipality, it shall give the present population to be served, and the
estimated future requirements of the city, not to exceed twenty (20)
years; said twenty (20) years' estimate of future requirements-to be
based on the same rate of increase of population as that had in the
twenty (20) year period, or such fraction thereof as required, im-
mediately preceding the estimate, unless an unusual situation shall
be shown to the board to exist, or is foreseen which would justify
a deviation from the twenty (20) year rule; (i) any additional factors
which may be required by the board.
All fees received by the board as herein prescribed shall be
deposited in the general fund of the state.
5956-17. (a) Upon receipt of the application it shall be the duty
of the board to have endorsed thereon the date of the receipt and
assign it a number. If upon examination the application is found to
be defective, inadequate or insufficient to enable the board to deter-
mine the place, nature and amount of the proposed appropriation, it
shall be returned for correction or completion or for other required
information. No application shall lose its priority of filing on ac-
count of such defects, provided acceptable data, proofs, maps, plats,
plans, and drawings are filed in the office of the board within thirty
(30) days following the date of the posting of the return of such' ap-
plication or such further time, not exceeding one year, as may be
given by the board.
(b) All maps, plats, plans and drawings shall conform to pre-
scribed uniform standards as to materials, size, coloring and scale
as prescribed by the board, and shall show: (a) the source from
which the proposed appropriation is to be taken; (b) all proposed
dams, dikes, reservoirs, canals, pipe lines, power houses and
other structures for the purpose of storing, conveying or using
water for the purpose approved and their positions or courses in
connection with the boundary lines and corners of the lands which
they occupy.. Land listed for irrigation shall be shown in acres.
Default in the refiling of any application within the time limit speci-
fied shall constitute a forfeiture of priority date and the dismissal
of the application. All maps, plats, plans, drawings and applica-
tions submitted shall become the property of the board.
5956-18. (a) Upon approval of the application the board shall
notify the applicant to that effect and issue a permit authorizing him





___________*_ ___ __ ]







WATER RESOURCES


to proceed with the construction of the proposed diversion works
and to take all steps required to apply the water to the approved
and proposed beneficial use, and otherwise perfect his proposed ap-
propriation. An application may be approved for a less amount of
water than that requested if, in the opinion of the board, the ap-
proval of the full amount requested would interfere with a vested
right or is against public interest. An applicant shall be entitled
to proceed with construction of diversion works and with the diver-
sion and use of water, in accordance with the approval and such lim-
itations as may be prescribed by the board. Provided, however,
that no application shall be approved until the substance thereof
shall have been published by the applicant in a newspaper having
general circulation in the county wherein the point of diversion ex-
ists, at least ten (10) days before approval of such application, and
a public hearing accorded any person whose rights may be adverse-
ly affected by such approval. At such hearing all persons con-
cerned will be accorded the right of counsel and the right to intro-
duce evidence in their behalf.
(b) If the application is refused the board shall so notify the ap-
plicant, and it shall be unlawful for such applicant to take any steps
toward the construction of the proposed diversion works or to divert
or use any such water, so long as the refusal shall continue in
force. Any person who proceeds subsequent to the effective date of
this act to construct and maintain diversion works without the ap-
proval of the board being first obtained, may be enjoined in any
court of competent jurisdiction. The board shall limit the time for
the perfecting of an appropriation to a reasonable period within
which the proposed works can be completed by due diligence taking
into consideration the size, complexity and cost of the work, and
seasonal conditions, and may for good cause shown by the applicant
allow an extension of time.
5956-19. Within sixty (60) days after the completion of the
construction of the works and the actual application of water to the
proposed beneficial use within the time allowed, the permitted shall
so notify the board. The board shall then examine and inspect the
appropriation diversion works and, if it is determined that such
works have been completed and the appropriation right perfected in
conformity with the approved application and plans, the board shall
issue a license in duplicate. The original of such license shall be
sent to the licensee and shall be recorded in the office of the clerk
of the chancery court in the county wherein the point of diversion is
located as other instruments affecting real estate, and the duplicate
shall be made a matter of record in the office of the board. The







AND THE LAW


fee for filing the license in the office of the clerk of the chancery
court shall be one dollar ($1.00), to be paid by the applicant.
5956-20. Any person desiring to build adam or reservoir on
any watercourse as herein defined, except aS provided in section 4,
before proceeding with the construction thereof, must obtain a writ-
ten statement from the board that such construction will not affect
plans for the proper utilization of the water resources of the state;
provided, however, any such petition which seeks authorization of
any program of works to be performed within the territorial limits
of any watercourse lying in whole or in part within a levee district
duly constituted under the laws of this state shall include a copy of
a resolution adopted by the levee board of such levee district ap-
proving all relief sought under the petition; and any individual vio-
lating the provisions of this section may be enjoined therefrom.
5956-21. The board shall have authority to enter into com-
pacts and agreements concerning this state's share of waters flow-
ing in watercourses where a portion of such waters are contained
within the territorial limits of a neighboring state.
5956-22. Any member of the board or any person authorized
by it, shall have the right to enter upon private, county or state
lands for the purpose of making surveys and examinations necessary
in the gathering of facts concerning streams and natural watersheds,
subject to responsibility for any damage done to property entered.
5956-23. (a) The board may consider, approve, modify at the
request of the applicant, or reject applications for permanent or
temporary changes in the place of diversion or use of water from
those originally appropriated or approved, subject to the rules and
regulations of the board and following the procedure herein estab-
lished for original application for appropriation.
(b) Any person who changes or attempts to change the point or
place of diversion or use of water, either permanently or tempo-
rarily, without first applying to the board in the manner prescribed,
shall obtain no right thereby and shall be guilty of a misdemeanor,
and punished therefore in the discretion of the court, not to exceed
a fine of two hundred dollars ($200.00). Each day of such unlawful
change shall constitute a separate offense, separately punishable.
(c) Each application for a temporary or permanent change shall
be accompanied by a fee of one dollar ($1. 00). All fees received
by the board as herein prescribed shall be deposited in the general
fund of the state.







WATER RESOURCES


5956-24. Whenever the rights for the use of waters within the
state shall have been adjudicated by any court, the board shall aid
in the distribution of water in accordance with the terms of the de-
cree, and it shall be the duty of the clerk of any court in which
such decree has been issued, within ten (10) days after such decree
shall have been entered, to forward to the board of water commis-
sioners, by registered mail, a certified copy of the decree.
5956-25. (a) Any order, decision or other official act of the
board in administering the provisions of this act, may be appealed
by any person aggrieved thereby to the circuit court of the county
wherein the point of diversion exists by serving the chairman or
someone of discretion at the office of the board, within sixty (60)
days after receipt of written notice of the order, decision or offi-
cial act, notice of appeal stating the grounds upon which the appeal
is founded. The appeal may be based on legal- or factual grounds
or both. After proper hearing, at which testimony may be offered
for any aggrieved person, the court may sustain, reverse or modi-
fy the order of the board which may be appealed to the supreme
court the same as other orders of the circuit court. The attorney
general, or his representative, shall represent the board on all ap-
peal matters. The board shall, within thirty (30) days after serv-
ice of the notice of appeal, make a return to the circuit court, giv-
ing copies of all documents and orders and a transcript of the testi-
mony taken.
(b) Within fifteen (15) days after the service of the notice of ap-
peal, the board may serve upon the appellant an offer in writing to
correct the order from which appealed in any of the particulars
mentioned in the notice of appeal. The appellant may thereupon,
and within fifteen (15) days thereafter, file with the board a written
acceptance of such offer, and in such cases the board shall there-
upon make a minute of such acceptance in its permanent files and
correct the order accordingly and the same, so corrected, shall
stand as the order of the board and shall be filed in the office of
the clerk of the circuit court.
5956-26. At any hearing or other proceeding authorized by
this act, the board shall have power to administer oaths; to take
testimony; to issue subpoenas and compel the attendance of witness-
es, which shall be served in the same manner as subpoenas issued
by the courts of the state; and to order the taking of depositions in
the same manner as depositions are taken in the courts.
5956-27. The board shall report fully to the legislature with-
in ten (10) days after convening date of each regular session on its
work during the biennium.




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