January 10, 1980

Mr. Clint Roberts 
Secretary 
Department of Agriculture 
Anderson Building 
Pierre, South Dakota 57501

Official Opinion No. 80-2

Validation of Water Samples Submitted for Soil-Water Compatibility

Dear Secretary Roberts:

You have requested an official opinion from this office based upon the following factual situation:

FACTS: 

SDCL 46-5-6.4 authorizes the Department of Agriculture to take water samples from wells to validate water sample analyses taken at the time of applying for an irrigation permit. 

This authorization has become increasingly important as the Division of Conservation of the Department of Agriculture has obtained many samples taken by applicants which have been proved to be invalid because of improper sampling techniques. 

To date, the Department has only used this authorization in validating pending permit applications.  However, the Department recently received several petitions which indicate that validation of the water sample taken for a permit, which has already been conditionally approved, is in order.  No water right has as yet been granted on this permit.  (The petitions allege the quality of the water samples submitted is far better than could possibly be obtained from the particular formations from which the water was allegedly taken.)

Based on the above factual situation, you have asked the following questions:

QUESTIONS: 

1.  Does SDCL 46-5-6.4 authorize the Department to validate the water sample used to obtain this irrigation permit? 

2.  Is there any other statute authorizing the Department to proceed in this fashion? 

3.  Would it make any difference if a water right, based on this irrigation permit, had been obtained? 

4.  What if the irrigation permit had been unconditionally approved, instead of conditionally approved as in this instance? 

5.  Will the Division of Conservation have to pay for obtaining such a sample, or can the costs be billed to the applicant?

IN RE QUESTION NO. 1:

SDCL 46-5-6.4 provides: 

The department of agriculture shall have the power to take water samples from wells and surface water bodies to be used for irrigation purposes for the purpose of validating water sample analyses taken at the time of application.

In my opinion, this is an ongoing power given the Department of Agriculture, the reason and the purpose being that the Department may during the application  process or subsequently need to validate the water sample analyses that were submitted to the Department at the time of application.

IN RE QUESTION NO. 2:

I am aware of no other statute that expressly authorizes the Department to proceed in this fashion.  Many courts, however, hold that an administrative agency has inherent power to correct errors made due to fraud, mistake or inadvertence, so long as such power is exercised within a reasonable time, Schultz v. Montgomery Planning Board, 185 A.2d 502 (Maryland 1962); Anchor Casualty Company v. Bongards Co-op Creamery Association, 91 N.W.2d 122 (Minn. 1958); Ruvoldt v. Nolan, 305 A.2d 434 (N.J. 1973).  Logically included in such inherent power would be the power to validate water samples submitted with an application for an irrigation permit, even after the permit has been granted.  Of course, the sooner the sample is validated and any error corrected, the more likely it is that it will be within a reasonable time.

IN RE QUESTION NO. 3:

The acquisition of a water right would not cut off the power of the Department to check the validity of a water sample submitted with the  application for an irrigation permit.  There are limits, however, on the power to modify or withdraw permits which the validations indicate were erroneously granted.  An agency's power to correct errors must be exercised with diligence and within a reasonable time.  The length of time which is reasonable will depend on the source of the error and the extent of justifiable reliance by the permit holder, Ruvoldt v. Nolan, supra.  Where the source of the error is fraud by the applicant or failure to follow regulations governing sample collection, an irrigation permit may be modified or withdrawn even though a water right has been obtained.

Where the Department is the source of the error, such as a clerical or sample testing error, a reasonable time to correct the error would be shorter.  In Anchor Casualty Company v. Bongards Co-op Creamery Association, supra, the court held that a reasonable time for an agency to correct its own error should be at least as long as the time within which a party could appeal the decision.  In the context of a reasonable time for correcting errors caused by the Department in granting irrigation permits, a reliable yardstick would be the time prior to the acquisition of a water right.  Although a permit is merely the state's permission to do an otherwise prohibited act and is not a constitutionally vested property right, Donovan v. Delaware Water and Air Resources Commission, 358 A.2d 725 (Del. 1976); Shady Acres Nursing Home, Inc. v. Canary, 316 N.E.2d 481 (Ohio 1973), it has been held in at least one  case that expenditures in justifiable reliance on a duly issued permit may restrict revocation of the permit in some circumstances, B & H Investments v. City of Coralville, 209 N.W.2d 115 (Iowa 1973).  By modifying or withdrawing the irrigation permit before a water right is obtained, there is less likelihood of the applicant making expenditures in reliance on an erroneously granted permit.

IN RE QUESTION NO. 4:

The power to validate the water sample is unaffected regardless of whether the irrigation permit was conditionally or unconditionally approved.

IN RE QUESTION NO. 5:

It is my opinion that the Division of Conservation bears the cost of validating soil-water compatibility samples as no express authority exists to charge the applicant.

Respectfully submitted,

Mark V. Meierhenry
Attorney General