December 17, 1979

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

Official Opinion No. 79-46

Enforcement of SDCL 38-8A, “Soil Erosion and Sediment Damage Control”

Dear Secretary Roberts:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Chapter 38-8A of the South Dakota Codified Laws deals with the adoption of soil loss standards by individual conservation districts.  SDCL 38-8A-16 requires “each permit issuing authority lying within the territorial limits of the conservation district, shall include provisions in its permit procedure to ensure that any proposed action relating to a permit is in compliance with the district conservation standards.”

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Is it necessary for a “permit-issuing authority” to take formal action, by either resolution or ordinance, to have legal authority to administer and enforce standards adopted by a conservation district, as required by SDCL 38-8A-16? 

2.  How will conservation district standards be administered and enforced by an incorporated municipality that has not adopted an ordinance or zoning plan that requires permits? 

3.  Who has authority to administer and enforce conservation district standards within unincorporated municipalities?

SDCL 38-8A-1(6) reads as follows: 

“Permit-issuing authority,” a municipality or other political subdivision normally responsible for granting or issuing zoning or building permits.

SDCL 38-8A-16 reads as follows: 

After formal adoption of district conservation standards, each permit- issuing authority lying within the territorial limits of the conservation district, shall include provisions in its permit procedure to insure that any proposed action relating to a permit is in compliance with the district conservation standards.

SDCL 38-8A-20 reads as follows: 

Any person who is adversely affected by land disturbing activities may file a petition with the conservation districts or with the permit-issuing authority having jurisdiction thereof, alleging a violation of this chapter. The petitioned agency shall investigate and determine the validity of the petition.  The petitioned agency shall, within two months after receipt of the petition, take appropriate action and advise the petitioner of its disposition of his petition.

SDCL 38-8A-21 reads as follows: 

Either a permit-issuing authority or a district may, upon petition or its own volition, in the enforcement of its orders, commence an action in circuit court for an injunction or other appropriate relief to enforce the provisions of this chapter.

IN RE QUESTION NO. 1:

The answer is no, as the authority is statutory.

By way of clarification, SDCL 38-8A-16 refers to the permits issued by the “permit-issuing authorities.”  It is my opinion the intended effect of section 18 was to require each entity with existing or unexercised permit- issuing authority (any municipality or other political subdivision, see §  38-8A-1(6)) to promulgate procedures for the review of the land-disturbing activities authorized by permits issued by the permit-issuing authority, thus to ascertain whether or not the activities were in compliance with the district standards.  It has since been determined that some counties and municipalities have not exercised their permit-issuing authority.  This leaves the question of procedures if a permit-issuing authority has no permit-issuing procedures adopted.

It would be my opinion that those political subdivisions with unexercised permit-issuing authority would not be required to administer permit-issuing standards according to §  38-8A-16.  These entities, however, still have the discretionary authority to enforce district standards granted by SDCL 38-8A-21.

It is also my opinion that those political subdivisions that do issue permits merely need to modify their permit-issuing procedures to accomplish compliance with the district standards.  This may be accomplished in the same way that the permit authorizes other functions within the present scope of any existing zoning or planning standards.

IN RE QUESTION NO. 2:

This answer will also apply to a county that has not adopted zoning ordinances or plans.  It is my opinion the effect of SDCL 38-8A may not be construed to require those political subdivisions that have not adopted zoning ordinances to promulgate them.  It is also my opinion that the political subdivisions mentioned in SDCL 38-8A-1(6) may enforce the conservation standards promulgated by the district by the remedies that may be inferred by SDCL 38-8A-21.

IN RE QUESTION NO. 3:

According to §  38-8A-21 the district or the county as set out in SDCL 38-8A-1(6) may enforce the conservation district standards within unincorporated municipalities.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:RHW:esp