May 4, 1984
Mr. Marvis T. Hogen, Secretary
Department of Agriculture
Anderson Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 84-20
Water permits
Dear Secretary Hogen:
You have requested an official opinion based on the following factual situation:
FACTS:
The Department of Agriculture and the Department of Water and Natural Resources have discovered several instances in which an irrigator is irrigating land not covered by either a soil water compatibility permit or a water permit; the Departments have also discovered instances in which irrigators were utilizing diversion points not covered by existing water and soil water compatibility permits.
In some of these instances, these instances, the irrigation was commenced prior to the effective date of the soil water compatibility permit system set up by Session Law 1972, Chapter 237, § 5 and Session Law 1977, Chapter 364, now codified as amended at SDCL 46-5-6.2 to 6.8.
In almost every case, an irrigator has made large capital expenditures and you suggest, in some cases, the denial of the permits 'could mean the infeasibility of the entire system.'
Based on these facts you asked the following questions:
QUESTIONS:
1. If a water permit has been issued prior to the effective date of the soil water compatibility law, and if the irrigator, subsequent to the grant of the permit, began irrigating additional unpermitted lands or began using additional unpermitted water sources, must the irrigator now obtain both a soil water compatibility permit and a water permit before continuing irrigation on those additional lands?
2. If the answer to Question No. 1 is yes, you ask whether areas of twenty acres or less could be excluded from the soil water compatibility statutes when the additional acreages are added as a result of a change in irrigation equipment? For example, a center pivot might be installed instead of a travelling gun or a pivot is placed off center on the quarter.
IN RE QUESTION NO. 1:
It is now generally appreciated that great care is necessary in selecting soils which are suitable for irrigation from various water sources. This is so because combinations of some kinds of soils with some kinds of waters can do permanent damage to the productivity of the soil. Further, it is also generally appreciated that irrigation on slopes of over a certain percentage can lead to serious erosion of the soil.
In response to these challenges, the South Dakota Legislature in 1972 enacted one of the first soil water compatibility statutes in the country. Session Law 1972, Chapter 237, § 5, essentially allowed the Department of Agriculture, through the Conservation Commission, to rule on whether particular lands could be irrigated with water taken from particular underground sources. In 1977 the Legislature enacted a more comprehensive statute which covered water from both underground and surface sources. Session Law 1977, Chapter 367. Under the statutory arrangement, the Department and the Conservation Commission were given the duty of determining the 'long-range effects of irrigation on the soil . . ..' According to the statute as codified:
Any person desiring to appropriate water for irrigation purposes shall apply for a soil-water compatibility permit from the department of agriculture at the same time as an application to appropriate water for irrigation is filed with the water management board. SDCL 46-5-6.2.
The statutory scheme thus clearly contemplates that a soil water compatibility permit must be granted before a water permit may be granted.
Your first question asks essentially whether a person who holds a water permit obtained before the effective date of the soil water compatibility permit statute might add additional lands to that water permit without first being granted a soil water compatibility permit for the additional lands.
In my view, the Supreme Court definitively answered that question in Fraser v. Water Rights Commission, 294 N.W.2d 784 (S.D. 1980). In Fraser, the applicant for the water permit had presented certain, but not all lands in a particular area, to the Department of Agriculture and Conservation Commission for a soil water compatibility permit. The soil water compatibility permit was granted. Thereafter, the applicant sought to obtain a water permit from the Water Rights Commission (predecessor to the present Water Management Board) for all of the lands in question, including those which had not, in Supreme Court's view, been properly presented to the Department of Agriculture for a soil water compatibility permit.
According to the Supreme Court, the grant of a water right for lands not previously presented to the Conservation Commission for a soil water compatibility permit was improper. The Court said:
Quite simply, it is impossible to refer to an application that concerns lands that have never been formally considered by the Commission as being anything other than a 'new application.' Hence, SDCL 46-5-6.5 requires that there be a new soil-water compatibility approval prior to issuance of the [water] permit. If approval was not required, an applicant could receive a soil-water compatibility approval for a small amount of land, and then attempt to amend his application by adding land that was compatible. 294 N.W.2d at 788.
Thus, the Supreme Court essentially condemned the practice of granting a water permit for lands not first granted a soil water compatibility permit.
Your question presents slightly different facts. You ask whether the conclusion would be changed if the soil water compatibility permit statute was not in effect at the time the original water permit was granted. Can, in such a case, lands be added to the water permit without new soil water compatibility permits? I think it is clear that they cannot be added to the water permits. When lands are sought to be added to an existing water permit, there must be, in the Supreme Court's view, a new application for a water permit, at least for the purpose of those new lands. The law existing at the time the new water permit is granted is applicable. Since 1972, in the case of ground-water and since 1977 in the case of surface water, a soil water compatibility permit has been required before that water permit can be granted. There is no exception to the soil water compatibility permit requirement found in SDCL 46-5-6.2 to 6.8 or otherwise which arises merely because irrigation of lands has proceeded for several years outside the authority of law.
In summary, you have outlined a case in which lands not the subject of a water permit are now being irrigated or in which unpermitted waters are being used for the irrigation. The irrigation is thus being done without legal authority, see SDCL 46-1-15, 46-5-9, 45-5-10, 46-6-3, and the owner or proprietor of the lands must promptly obtain a water permit or cease irrigating. As a prerequisite to a grant of that water permit, the statutes clearly contemplate that a soil water compatibility permit must be obtained for that land and water. Fraser v. Water Rights Commission allows no other conclusion.
My answer to your first question is therefore YES.
IN RE QUESTION NO. 2:
You also ask whether there is an exception for twenty acres or less of lands when the additional lands may be irrigated as the result of a change in irrigation equipment.
I note that I can find no basis for a twenty acre exclusion from the provisions of the soil water compatibility law in the statutory scheme set out at SDCL 46-5-6.2 to 6.8, or in the Supreme Court's opinion in Fraser v. Water Rights Commission.
Neither the statutory nor the case law allows acreages, even relatively small acreages, to be irrigated without soil water compatibility permits and water permits merely because a change in the operating procedure causes the additional acreage to be irrigated. An irrigator who wishes for whatever reason to increase the amount of land which is irrigated must apply for a new water permit for the additional acreage and, as a prerequisite, must obtain a soil water compatibility permit.
My answer to your second question is NO.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
