§ 41-3-904 — By-product water; appropriation; conditions and limitation

(a) Any person intending to appropriate by-product water
for beneficial use shall file an application with the state
engineer on the forms and in the manner prescribed for
groundwater applications. By-product water shall be considered
as being in the same class as groundwater for the purposes of
administration and control. An application may be filed only if
both the following conditions exist:
(i) The by-product water is intercepted while it is
readily identifiable and before it has commingled with the
waters of any live stream, lake, reservoir or other surface
watercourse, or part of any groundwater aquifer; and
(ii) The developer of the water is the applicant, or
an agreement is filed in the office of the state engineer
wherein the developer of the water gives the applicant
permission to use the water as proposed in the application. The
agreement must be signed by the developer of the water, and may
contain provisions for reservation of the water to the use of
the developer-grantor, and if so stipulated, the reservation can
be superior in right and title to any use by the
applicant-grantee.
(b) In all other cases, an application to appropriate
by-product water shall be governed by the laws pertaining to
surface water, and by-product water shall be considered as part
of the surface supply, subject to use by existing priority
rights.