January 24, 1977

Mr. Dick Wendt 
On behalf of the Interim Committee
  on State Affairs 
Legislative Research Council 
Pierre, South Dakota 57501

Official Opinion No. 77-10

Whether legislative approval of application requires commission to issue water right

Dear Mr. Wendt:

You have requested an opinion from this office in regard to the following question:

QUESTION: 

Does legislative approval of an application under SDCL 46-5-20.1 require the Water Rights Commission to issue the water right applied for?

SDCL 46-5-20.1 provides: 
    
Any application for appropriation of water, pursuant to this chapter, in excess of ten thousand acre feet annually shall be presented by the water rights commission to the Legislature for approval prior to the board's acting upon the application and all powers of eminent domain shall be denied any common carrier appropriating over ten thousand acre feet of water per annum which has not obtained such prior legislative approval.

In my opinion, the above-cited statute does not require the Water Rights Commission to issue a water right merely because the Legislature has approved the application.  Nowhere in the statutory language do I see authority for the proposition that the Legislature dictates to the Water Rights Commission what the decision of the Commission will be.  SDCL 46-5-20.1 recognizes that before the Water Rights Commission acts on an application, the application must be submitted to the Legislature for prior approval.  If the Legislature rejects the application, then I do not believe the Water Rights Commission has authority to further consider the matter.  If, however, the Legislature approves the application, there is still in my judgment discretion in the Water Rights Commission to approve or disapprove the application.  Both the Legislature and the Water Rights Commission would need to approve the application before SDCL 46-5-20.1 would be satisfied that an application should be granted.

Respectfully submitted,

William J. Janklow
Attorney General

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