May 27, 1975
Mr. Vern W. Butler, Secretary
Department of Natural Resource
Development
Office Building Number 2
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-92
Water Right Number 406-2
Dear Mr. Butler:
You have asked three specific questions:
1. Does the qualification "diversions shall be made only during periods of time that one cubic foot per second of water or more is flowing in Box Elder Creek downstream from the mouth of the water course from which the diversions are made" indicate that the Water Resources Commission determined that if there is no flow in Box Elder Creek immediately upstream from the mouth of the water course carrying the Ellsworth Airbase effluent, that a flow of one cubic foot per second of the effluent, if that amount is available, is the maximum amount that must be allowed to enter the bed of Box Elder Creek for downstream domestic use?
2. What type of legal action would be advisable if there is not compliance with the terms of Water Right Number 406-2?
3. Does the Water Rights Commission have the right to cancel Water Permit Number 406-2 if there is not compliance with the terms of the water right?
The answer to your first question depends on whether the effluent to which you refer is in fact water. Apparently, some individuals feel that the effluent is not water, that the holder of Water Right Number 406-2 has no right to the effluent and that all of the effluent must be allowed to flow in Box Elder Creek.
The effluent derives from the sewage treatment plant at Ellsworth Air Force Base. It is water that has been treated and purified. The domestic users who desire the effluent will use it for the same purpose as water-irrigating lawns and gardens and watering livestock. It is difficult for me to call the effluent anything but water. It is certainly not anything else. The fact that the water may have some materials suspended or in solution with the water is immaterial. Utah Copper Co. v. Stephen Hayes Estate, 83 Utah 545, 31 P. 2d 624, 629. Similar materials might be found in the waters of Box Elder Creek before the effluent is introduced. Therefore, it is my opinion that the appropriative user may only make diversions when at least one cubic foot per second of water (including effluent) is flowing downstream.
To answer your second question, either the Water Resources Commission or a citizen could file a criminal complaint against the offending user under SDCL 46-1-11. Upon conviction, the user would be guilty of a low grade misdemeanor.
In addition, the Water Resources Commission could request that the Attorney General file suit to determine the conflicting water rights. SDCL 46-10-1 to 46-10-2. Also, citizens may bring suits to adjudicate water rights. SDCL 46-10-5 to 46-10-7. Domestic users may petition for establishment of a water use control area to regulate distribution of water in a given area. SDCL 46-10-14 to 46-10-28.
To answer your third question, the commission has no statutory authority to cancel Water Right Number 406-2. Apparently the only manner in which a water right is forfeited is pursuant to SDCL 46-5-36 and 46-5-37 which provide forfeiture for abandonment or non-use.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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