(concurring in result).
This is a simple case. It is not complicated. On July 29, 1986, Fryer’s conditional water permit lapsed. SDCL 46-2A-8; ARSD 74:02:01:37(1). After that date, the Board was barred from doing anything which would impair the existing perfected water rights of Person. SDCL 46-2A-12; 46-5-24; 46-5-30.4.
Stabio Ditch does not apply to this case. In that case, the appellant possessed perfected water rights dating from 1877. The question was whether these perfected rights could be lost without a hearing because they had been in disuse “for a period of three years” under SDCL 46-5-37. A three-year period defined by failure to use a right is inherently ambiguous. Moreover, SDCL 46-5-37.1 explicitly requires a hearing to determine whether abandonment or forfeiture has actually occurred. Under these circumstances, we held that
there can be no forfeiture of a water right without the due process hearing required by SDCL 46-5-37.1. We further hold that [appellant] had a water right up and until the hearing on forfeiture was finalized.
417 N.W.2d at 394.
In contrast, Fryer had unambiguous notice that her conditional water permit would ripen into a perfected right only if she completed construction of the necessary diversion by July 29, 1986 and began beneficially using the water by July 29, 1990. SDCL 46-2A-8. The Board is empowered to extend this period “for a reasonable time” for good reason. SDCL 46-5-26. However, as SDCL 46-2A-8.1 makes clear, Fryer’s failure to either complete diversion or apply for a time exten*915sion under SDCL 46-5-26 by the July 29, 1986 deadline limited the Board to reinstating her conditional permit with a priority dating only from the application to reinstate. Even the period for applying for this reinstatement expired July 29, 1989. Id.
The difference between holding a conditional water permit and owning a perfected water right is like the difference between holding a driver’s license and owning a car: just because the latter cannot be seized without due process does not mean the former cannot be allowed to expire according to the terms of the statutory scheme. Because the majority opinion confuses the two situations and incorrectly holds that Stabio Ditch controls this case, it is forced to launch into unnecessary discussions of “jurisdiction,” “legislative delegation” and “exigent circumstances.”
The key to this case is that because Stabio Ditch is inapplicable, Person’s perfected water rights assumed priority over any rights of Fryer on July 29, 1986. A fair reading of SDCL Title 46 makes it clear that an amendment, whenever made and for whatever reason, cannot impair existing rights. For example, under SDCL 46-5-24, any “change of construction plans ... may not be allowed to the detriment of others having valid water permits or rights to the use of the water.” SDCL 46-5-30.4 provides in part:
An amendment of a water permit or right may not increase the rate of diversion or increase the volume of water to be appropriated under the original water permit or right. The amendment may not impair existing rights.
SDCL 46-2A-12, which is set forth in full in the majority opinion, is to the same effect.
Because Person has existing perfected rights under two valid water permits, an amendment on the part of Fryer cannot impair Person’s rights under either permit. Therefore, whether Fryer’s circumstances constitute “exigent circumstances” sufficient to justify an amendment is immaterial because no amendment can impair Person’s senior rights.