STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
April 19, 1973
Howard Geers, Ex. Sec'y.
State Conservation Commission
Pierre, South Dakota 57501
Dr. Lynn Muchmore, Director
State Planning Agency
Pierre, South Dakota 57501
Robert R. Slocum
States Attorney, Walworth County
Mobridge, South Dakota 57601
OFFICIAL OPINION NO. 73-11
Authority for county commissioners to donate revenue sharing funds to county conservation districts.
Dear Mr. Geers, Dr. Muchmore, and Mr. Slocum:
You have requested opinions on the following factual situation:
As a result of the elimination of the Rural Environmental Assistance Program (REAP) of the U. S. Department of Agriculture and the provision of General Revenue Sharing funds to counties, many counties in the state have been asked to provide funds to Soil Conservation Districts to continue a REAP-type program.
The counties are being asked to appropriate funds to the Conservation Districts for general purposes as well as to serve in replacement of the cost reimbursement formerly made to landowners participating in the program through the County Agricultural Stabilization Committee (ASC) which would defray part of the costs of making improvements which reduce water pollution, soil erosion or otherwise improve the environment. Shelterbelt plantings of trees on privately owned land are involved.
In connection with this factual situation, you have asked the following questions:
1. Dt county commissioners have the authority to give revenue sharing funds to county conservation districts for environmental protection?
2. If so, can the conservation districts use the revenue sharing funds for its overhead and operating expenses?
3. Can the districts use the funds for the construction of, or purpose of, a building to be used for Offices, storage and meeting purposes?
4. Can the conservation districts use the funds for projects suih as tree planting and other environmental protection, on a cost sharing basis with land occupiers?
5. Can the funds be used by the district for soil surveys in cooperation with the United States Soil Conservation Service?
The answers to all your questions are, YES.
Federal statutes provide that revenue sharing funds given to counties must be used for priority expenditures which include: ordinary and necessary maintenance and operating expenses for environmental protection and ordinary and necessary capital expenditures which are authorized by law. State and Local Fiscal Assistance Act of 1972 §103, 86 Stat. 919, Public Law 92-512 (October 20, 1972). In addition, a receiving county must establish a trust fund for the revenue sharing receipts and expend them only in accordance with the laws and procedures applicable to the expenditure of its own revenues. Public Law 92-512, supra, §123.
In the State Code, SDCL 38-8-55 provides:
In addition to others specified by law, the board of county commissioners shall have power to contribute funds to soil and water conservation districts; to hire employees, purchase supplies and carry out district programs, for the conservation of soil and water resources that will protect the tax base of the county, anti provide for the general welfare of the people of the county, said moneys to be paid from the general fund of the county. Any soil and water conservation district before receiving such funds shall file with the county commissioners a financial statement for the last three years itemizing the amount of funds received and how disbursed.
A prior Attorney General’s Opinion (1963-64 AGR 250) held:
It appears that the legislative intent of Chapter 37, Session Laws of 1963 (now SDCL 38-8-55 through 57) was to authorize the counties to make a contribution from their general fund to the soil and water conservation districts. It: also appears to be the intent that said monies are to be a contribution rather than a reimbursement. It is therefore my opinion that the making of such a contribution, the amount thereof and the mode of payment is discretionary with the Board of County Commissioners after holding such public hearing thereon as required by said statute. It is also my opinion that said contribution may be a lump sum or on some other basis, in advance, as may be determined by the Board of County Commissioners.
I reaffirm the holding of that opinion. In 1959-60 AGR 367, it was held that a county has no authority to pay office expenses of soil conservation districts. Ch. 37 of the 1963 Session Laws changed the statute upon which the 1960 opinion was based. Therefore, that opinion is no longer valid.
Since it has been established that counties may, under federal law, use revenue sharing for environmental protection and for purposes for which it may expend its own revenues, and, under state law, counties may use their revenue sharing funds to contribute to conservation may use their own revenue sharing funds to contribute to conservation districts, and that the conservation districts may then use the funds for environmental protection and necessary capital expenses authorized by law.
As the federal law specifies that revenue sharing moneys received by counties must remain in a trust fund, it is my further opinion that when and if a board of county commissioners authorized a contribution to a soil conservation district, such moneys should remain in the county's revenue sharing trust fund or in a revenue sharing trust fund established by the conservation district. In no event should the trust moneys be transferred to the conservation district's own general fund.
Conservation district expenses which are authorized by law include:
Overhead and operating expenses. (Question No. 2) SDCL 38-5-55.
Construction or purchases of buildings to be used for offices, storage and meeting purposes. (Question No.3) SDCL 38-8-60.
Tree planting and other environmental protection on a cost sharing basis with land occupiers. (Question No.4) SDCL 38-8-61, 63 and 64. See also SDCL Ch. 1-24. It should be noted that before any benefit may be extended to lands not owned or controlled by the state Or any of its agencies, the supervisors of a conservation district may require land occupiers to enter into agreements or covenants for the permanent use of such land to prevent or control erosion, flood water and sediment damages SDCL 38-8-65. This statute should be strictly adhered to before payment is made from the trust fund.
Soil surveys in cooperation with the U. S. Soil Conservation Service (Question No.5) SDCL 38-8-62.
Even though the environmental activities carried on by the conservation districts will benefit specific landowners, they will also benefit the public as a whole and are a valid exercise of the county commissioners' right to expend money for the public health, welfare and safety.
As the board of county commissioners are by law, responsible to see that the trust funds are expended only for the purposes authorized by the Fiscal Assistance Act, it would be the county commissioners' responsibility to replace the money, should the conservation districts make any unauthorized expenditures of the funds alloted to them. Therefore, it should be understood that the conservation districts are the agents of the board of county commissioners for' the purpose of seeing that these funds are correctly expended. The county commissioners may properly delegate such authority to the districts, but such authority should be revoked immediately if the conservation district ever violates the purpose for which the funds were made available.
Respectfully submitted,
Kermit A. Sande
Attorney General
