STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 29, 1975

Mr. Albert L. Griffiths
Director
Division of Conservation
Department of Agriculture
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-133

Rule making power of State Conservation Commission and Division of Conservation

Dear Mr. Griffiths:

You have submitted the following question for an official opinion:

Does the State Conservation Commission and the Division of Conservation have sufficient statutory authority to promulgate, implement and enforce erosion and sediment control regulations in South Dakota?

SDCL 38-7-8 provides as follows:

The commission shall keep a record of its official actions; shall adopt a seal, which seal shall be judicially noticed; and may perform such acts, hold such hearings, and promulgate such rules and regulations as may be necessary for the execution of its functions under this chapter and chapters 38-8 and 45-6A.

This opinion would become quite lengthy if all of the statutory functions of the State Conservation Commission and the Division of Conservation were herein enumerated. Therefore, for the sake of brevity it will suffice to categorize the functions as being in the nature of assistance to and coordination and supervision of conservation districts activities. (See SDCL 38-7 -15 through 38-7-24.)

I find no specific statutory authority in SDCL 38-7 and 38-8 for promulgation by the Commission of general erosion and sediment control rules. Reference is made in SDCL 38-7-20 to development and implementation of a state policy for land conservation development and in SDCL 38-7-1 to conservation of soil and soil resources as being the purpose of said legislation. However, the South Dakota Supreme Court has stated that there must be both an expressed legislative will and legislative guidelines or standards for the valid promulgation of administrative rules. Affiliated Distillers Brands v. Gillis, 81 S.D. 44, 130 N.W. 2d 597 (1964); Berdahl v. Gillis, 81 S.D. 436, 136 N.W. 2d 633 (1965).

Further, I refer to the statutory authority vested in the conservation districts to regulate land use. (SDCL 38-8-66 et al.) More specifically, SDCL 38-8-67(5) provides for adoption of regulations including:

Provisions for such other means, measures, operations, and programs as may assist conservation of soil resources and prevent or control soil erosion in the district, having due regard to the legislative policy set forth in § 38-7-1.

Therefore, I conclude that the State Conservation Commission and the Division of Conservation do not have statutory authority to promulgate, implement and enforce sediment and erosion control rules, except as such rules would be limited to the reclamation of surface mining areas. (SDCL 45-6A-17.1, 45-6A-25, 45-6A-26.)

Respectfully submitted,

William Janklow
Attorney General

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