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Show NORTH DAKOTA 587 rights,64 although there was some question as to its application to riparian rights which traditionally have been recognized without actual water use. In 1963, the statute was repealed and a more elabor- ate provision on forfeiture was enacted.65 In the first place, the act now recognizes the existence of pre- scriptive rights to appropriate water from any source where the water was used for a beneficial purpose for a period of 20 years prior to July 1, 1963 (effective date of the act). The water user is, however, required to file for a permit within 2 years after July 1, 1963, or the water right is regarded as abandoned and forfeited. If the permit is granted by the State engineer, the user's priority re- lates back to the date when the water was first used. If the user fails to sustain his case for a prescriptive right, the application may be denied, and the engineer's decision may be appealed to the dis- trict court. Any prescriptive right so validated continues to be subject to forfeiture for nonuse. The 1963 act then provides for forfeiture of all appropriation rights by nonuse for a period of 3 years. The water user may avoid forfeiture by showing that the nonuse was due to the unavailability of water, a justifiable inability to divert and use the water, or other good and sufficient cause. The statute does not apply to water rights or permits acquired by a State agency, and these may be forfeited only by the State legislative assembly. Where nonuse for 3 successive years exists without justification, the State engineer is authorized to commence a forfeiture proceeding which, after notice and hearing, may result in an order of can- cellation. All such orders are required to be filed with the register of deeds in the county where the appurtenant land is located. The statute does not expressly refer to riparian rights, and there are no cases considering the constitutionality of these provisions. 3.5 Storage Waters, Artificial Lakes, and Ponds Prior to 1961, a person who desired to construct a dam across a nonnavigable stream was required to petition the district court in the county in which the dam was located for permission to build the dam. Under the present law, no one may construct a dam capable of impounding more than 12.5 acre-feet of water without obtaining the approval of the water conservation commission.66 Plans and spe- cifications for any such dam must be submitted to the commission before construction to insure its safety.67 Any operator of a water storage reservoir with a capacity of more than 1,000 acre-feet must submit an annual operating plan for the reservoir to the State engineer. The operator of any such reser- voir is required to cooperate with the State engineer in maintaining and operating the structures so that all water releases shall be com- patible with the best interests of the greatest number of downstream users and affected landowners.68 M See V. Larson, note 49, at 265. as Sec. 61-04-22 to 26 (1971 Supp.). «« Chs. 16-18, repealed 1961. w Sec. 61-02-20. «sgec. 61-03-04. |