STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 21, 1975

Mr. Vern W. Butler, Secretary
Natural Resource Development
Office Building Number 2
Pierre, South Dakota 57501

Mr. Allyn O. Lockner, Secretary
Environmental Protection
Office Building Number 2
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 75-177

Water right permit for irrigation from sewage

Dear Sirs:

Your request concerned the right of a municipality to use its sewage effluent for irrigation as a method of disposal and treatment, and whether a separate water rights permit is necessary to allow such disposal.

My answer is an unqualified "no." Your request, however, indicates another issue as to whether a city may exercise its appropriation of water to the detriment of downstream prior appropriators. I shall address both issues. Factors other than the method of disposal may determine what is done with municipal sewage effluent. In our situation, if downstream prior appropriators are dependent upon a city's discharge and if increased treatment requirements prohibit previously permissible municipal discharges, the city is left with two legal courses of action. The city can either limit its withdrawal from the stream in order to insure sufficient water for downstream prior appropriators, or it can initiate increased treatment measures that will allow the previously relied upon discharges to reach the stream in a manner that complies with our pollution laws and other statutes. (I am not prepared at this time to say whether the damaged downstream water rights can be either bought and transferred or condemned by a city.) A city in a situation such as this may not forsake the rights of prior appropriators in order to ease the burden of compliance with our environmental protection statutes.

If, however, downstream prior appropriators will not be affected, the city may use a method where the effluent will not be returned to the stream such as land disposal by irrigation without obtaining another water rights permit for such disposal. To rule otherwise would allow appropriators junior to the city's use of the water to be senior to its disposal methods thereby necessitating methods that would make the discharges available whenever any downstream user senior to the city's irrigation permit is short of water. Two systems would be required to meet water pollution and appropriation laws: one to allow discharge to meet downstream needs and one for irrigation disposal. Of course, no city would do this. Municipalities would build the more expensive system that would allow discharge into streams in compliance with environmental statutes.

I

SDCL 46-5-7 (1967) states quite succinctly that "As between appropriators, the first in time is the first in right." Under a system of appropriation, junior appropriators must go without if necessary to fulfill a senior appropriator’s decree. Cundy v. Weber, 68 S.D. 214, 300 N.W. 17 (1941).

Our Legislature has declared that "the use of water for domestic purposes is the highest use of water, and takes precedence over all appropriative rights." SDCL 46-1-5(1) (1967). The use of surface water by a municipality, however, even though acquired partially for domestic purposes, is not a domestic use. SDCL 46-1-6(a) (Supp. 1974) states that:

Use of ground water by municipal systems ... shall be considered a domestic use except where ground water and water in flowing streams constitute the same water supply source. (Emphasis mine.)

By implication, one can only conclude that a municipality's use of stream water and ground water which is part of a flowing stream is not a domestic use, but is a municipal use. For that reason "domestic use" does not necessarily include "municipal use," and a municipal use does not have the freedom from appropriative restraints possessed by a domestic use.

We must recognize that the public policy of the state declared in SDCL 46-1-5(2) (1967) is "that the right of ... a municipality to acquire and hold rights to the use of water should be protected to the fullest extent necessary for existing and future uses .... "This policy does not express how a city's right to apply for an appropriation decree should be protected; nor does it state that once a municipal water right permit is issued, the appropriative right thereby granted takes any special priority. SDCL 46-1-3(1967) states "that all water within the state is the property of the people of the state, but the right to the use of water may be acquired by appropriation in the manner provided by law." No differentiation is made between municipal and other appropriations, and no special exemption is given a municipal appropriation as opposed to another appropriation that is "first in time." Municipalities may appropriate for future uses, SDCL 46-5-38(1967), but they must respect prior appropriations.

It is for these reasons that I reach my first conclusion that a municipality must either reduce its withdrawals from a stream or discharge in a legal manner when failure to do so would damage downstream prior appropriators.

II

In all other cases, the municipality may dispose of its sewage in the most economical and feasible manner, provided, of course, that it is still being used for municipal purposes. SDCL 46-1-6 (5) (1967) defines municipal use and states that "It does not include the irrigation of crops on a commercial scale even within the limits of the ... municipality." Presumably, the irrigation of crops on less than a commercial scale might fall within "municipal use."

In addition,

When ... water ... is ... diverted for the use of any municipality ... , the portion not used by such municipality shall be returned to the natural channel of the stream at or near the place where diverted.

Evidently, in the absence of demands by downstream prior appropriators, the water need not be returned to the stream if it is still subject to a municipal use.

Finally,

Water turned into any natural or artificial watercourse by any person entitled to the use of such water may be reclaimed below and diverted therefrom by such person, subject to existing rights, due allowance for losses to be made, as determined by the commission. SDCL 46-5-14 (1967).

This statute appears to go one step beyond the line of cases that holds that an appropriator may recapture his water for reuse so long as it has not commingled again with the common supply and that an appropriator need not limit the use of his water in order to benefit a junior appropriator. See Tongue Creek Orchard Co. v. Town of Orchard City, 280 P. 2d 426 (Colo. 1955); Stubbs v. Excanbrack, 368 P. 2d 461 (Utah 1962); McNaughton v. Eaton, 242 P. 2d 570 (Utah 1952).

In the final analysis, the basic question is whether sewage disposal by irrigation falls within the original use for which the water was appropriated. If it does, then the original water use permit, which is subject to all prior claims, is valid. If not, then under SDCL 46-5-15 (1967) the water must be treated by law as part of the stream from which it came and is subject to appropriation by those who wish to use it including the city.

I cannot believe that this is irrigation on a commercial scale as prohibited by 46-1-6(5) (1967). Your request states that the municipality will have complete control of the "application rates of wastewater to the land." One of the great benefits or irrigation is the ability to turn on the water when needed and shut it off when there is too much. To determine application rates for water on some basis other than crop need is too uncertain to be called irrigation on a commercial scale.

Nor does the situation at hand fall within the holding of Pulaski Irrigation Ditch Co. v. City of Trinidad, 203 P. 681 (Colo. 1922). In Pulaski the City of Trinidad was enjoined from selling its sewage effluent and was ordered to return it to the original stream. There the court stated that once the water has served its use of carrying sewage and has been purified it must be returned to the stream. "[A]n appropriator is limited in his use of water to his actual needs. He must not waste it, and if there is a surplus remaining after use it must be returned to the stream whence it came." 203 P. at 682.

Our standards have changed, however, and water pure enough to return to the stream in 1922 may still be sewage today. As the court in Pulaski said,

If the situation is such that the sewage cannot be turned into a running stream and be carried away without causing conditions which are unsanitary and obnoxious to the public, the city must find some other way of disposing of the sewage. The use of water in cities by which it is contaminated is principally as a vehicle for carrying away noxious matter; and when that duty has been discharged and the city, under its obligations to prevent the sewage becoming obnoxious, has withdrawn the solid matter from the water, the water should be returned to the stream. It has performed the service required of it as truly as has water which has passed over a millwheel. 203 P. at 682.

Sewage to be disposed of by irrigation is still carrying municipal waste and has not yet "performed the service required of it." For this reason the original municipal water rights permit is valid for this use and no additional permit is needed under either Pulaski or South Dakota statutes such as SDCL 46-5-15 (1967). It must be remembered, however, that all municipal uses may be subject to the needs of prior appropriators.

Respectfully submitted,

William Janklow
Attorney General

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