CHAPTER 34A-2
WATER POLLUTION CONTROL
34A-2-1 Legislative findings and policy.
34A-2-2 Definition of terms.
34A-2-3 34A-2-3 to 34A-2-5. Repealed by SL 2013, ch 166, §§ 16 to 18.
34A-2-6 Planning consistent with federal requirements--Maximum daily loads.
34A-2-7 34A-2-7, 34A-2-8. Repealed by SL 2013, ch 166, §§ 19, 20.
34A-2-10 Classification of waters.
34A-2-11 Water quality standards--Factors considered--Objectives--Violation.
34A-2-11.1 Presumption favoring existing quality standards.
34A-2-12 Regulation of public water supplies--Violation.
34A-2-12.1 34A-2-12.1. Repealed by SL 1997, ch 208, § 1.
34A-2-13 Effluent standards--Minimum requirements--Violation.
34A-2-14 Pretreatment standards for industrial users of inadequate public treatment works--Violation.
34A-2-15 Violation of pretreatment standards for industrial user--Implementation of Federal Water Pollution Control Act.
34A-2-16 Enforcement of pretreatment standards for industrial users.
34A-2-17 Periodic review of classification and standards.
34A-2-18 Procedure for establishment of classification, standards or rules.
34A-2-19 34A-2-19. Repealed by SL 1992, ch 158, § 19.
34A-2-20 Establishment of waste treatment requirements.
34A-2-21 Causing pollution of waters prohibited--Placement of wastes--Violation.
34A-2-22 Reduction of existing water quality by discharge of waste prohibited--Violation as nuisance.
34A-2-23 34A-2-23. Repealed by SL 1992, ch 158, § 22.
34A-2-24 Discharge of wastes allowed when economic or social necessity found--Exception.
34A-2-25 Technology considered in determining economic justification for waste.
34A-2-26 Biennial review of decisions to allow discharge waste.
34A-2-27 Construction permits required for activities discharging wastes into water--Violation.
34A-2-28 Rules for permits to discharge wastes--Plans and specifications for disposal systems--Violation.
34A-2-29 Plans, specifications, and information required by secretary.
34A-2-30 Rules regarding permit procedure.
34A-2-31 Issuance, revocation, or denial of permits to discharge waste.
34A-2-32 Examination and approval or disapproval of plans for discharge of waste--Changes in plans.
34A-2-33 Certification of compliance with federal pollution control requirements.
34A-2-34 Rules for grant or denial of certification--Procedural requirements of rules.
34A-2-35 Public hearing on permit to discharge waste--Notice--Uncontested recommendation.
34A-2-36 Permit to discharge waste into surface waters required--Issuance--Maximum duration--Standards to be met--Violation.
34A-2-36.1 Permit to discharge waste into underground waters--Issuance--Maximum duration--Standards to be met--Violation.
34A-2-36.2 Concentrated animal feeding operation--Permit.
34A-2-36.3 Permit required for large operations.
34A-2-37 Effluent limitations enforced in issuance of permits.
34A-2-38 Limitations on volume and strength of waste discharged under permit--Specification of limitations and conditions.
34A-2-39 Schedules of compliance in permits for discharge.
34A-2-39.1 Extension of time to meet quality and effluent standards.
34A-2-40 Recording, reporting and inspection conditions in permit to discharge.
34A-2-41 Conditions in permits issued for publicly owned treatment works.
34A-2-42 Changes to be reported under permit for publicly owned treatment works.
34A-2-43 Discharges which may not be authorized by permit.
34A-2-44 Records, monitoring and reporting required on pollution sources.
34A-2-45 Inspection powers with respect to pollution sources.
34A-2-46 Right of entry on premises where pollution produced.
34A-2-47 34A-2-47. Repealed by SL 2013, ch 166, § 21.
34A-2-48 Orders to clean up material spilled--Violation.
34A-2-49 Grounds for revocation, suspension, or modification of permit.
34A-2-50 Notice of denial, revocation, suspension, or modification of permit--Hearing--Decision by secretary.
34A-2-51 Effective date of revocation, suspension, or modification of permit.
34A-2-52 Procedural requirements in dealing with violations.
34A-2-53 Notice to correct violations--Contents--Civil penalty.
34A-2-54 Hearing on violation--Notice.
34A-2-55 Time of hearing on violation--Respondent's request for change of time.
34A-2-56 Respondent's request for hearing on violation--Time of filing--Time of hearing.
34A-2-57 Procedure in hearing on violation--Venue.
34A-2-58 Parties permitted to appear and present evidence at hearing on violation.
34A-2-59 Record of hearing on violation.
34A-2-60 Board's decision and order to abate pollution--Times prescribed in order--Civil penalty for violation.
34A-2-61 34A-2-61 to 34A-2-63. Repealed by SL 1988, ch 285, §§ 25 to 27.
34A-2-64 Order not stayed by appeal--Findings required to grant stay.
34A-2-65 Judicial enforcement of order pending appeal.
34A-2-66 Legal representation of board in appeal.
34A-2-67 Appeal bond not required of state or board.
34A-2-68 Emergency order by secretary to stop pollution--Effective immediately--Preventive action by secretary--Violation.
34A-2-69 Notice of emergency order.
34A-2-70 Hearing on emergency order--Time and procedure for hearing.
34A-2-71 34A-2-71. Repealed by SL 1988, ch 285, § 31.
34A-2-71.1 Investigation of discharge polluting state waters--Responsible person.
34A-2-72 Action in circuit court for immediate restraint of pollution.
34A-2-73 Action by department to enjoin violations--Temporary injunction and restraining order.
34A-2-74 Initiation of action to recover penalties.
34A-2-75 Violations classified as misdemeanor--Criminal and civil penalties.
34A-2-76 34A-2-76. Repealed by SL 1992, ch 158, § 29.
34A-2-77 False representation or tampering with monitoring device prohibited--Violation.
34A-2-78 Alternative remedies not barred by invoking penalties.
34A-2-79 Remedies under chapter alternative to remedies under other law.
34A-2-80 34A-2-80 to 34A-2-81. Repealed by SL 2013, ch 166, §§ 22 to 24.
34A-2-82 Acceptance of grants for water pollution control.
34A-2-83 34A-2-83 to 34A-2-85. Repealed by SL 1986, ch 291, §§ 7 to 9.
34A-2-86 34A-2-86, 34A-2-87. Repealed by SL 2013, ch 166, §§ 25, 26.
34A-2-87.1 34A-2-87.1 to 34A-2-92.4. Repealed by SL 1986, ch 291, §§ 10 to 25.
34A-2-93 Promulgation of rules by board.
34A-2-94 Public availability of records and information obtained under chapter--Trade secrets exception.
34A-2-95 34A-2-95. Repealed by SL 2011, ch 165, § 59.
34A-2-96 Petroleum substances discharged into state waters--Liability for containment and recovery costs--Violation.
34A-2-97 Petroleum substances discharged into state waters--Notice to secretary required--Restriction on use of information in criminal proceeding--Violation.
34A-2-98 Underground storage tanks--Definitions.
34A-2-99 Underground storage tanks--Promulgation of rules--Violation.
34A-2-100 Above ground stationary storage tank defined.
34A-2-101 Promulgation of rules--Public health and water protection--Violation.
34A-2-102 Installation of above ground stationary storage tank for storage of regulated substances prohibited--Exceptions--Violation.
34A-2-103 Statement of groundwater protection strategy--Coordination of activities.
34A-2-104 Legislative findings--Declaration of public policy.
34A-2-104.1 34A-2-104.1. Repealed by SL 1996, ch 265, § 14.
34A-2-105 Conditions requiring submission of preventative action plan--Contents--Violation.
34A-2-106 Development and administration of certain ongoing programs--Review and revision by secretary.
34A-2-107 Standards used in prioritizing groundwater prevention efforts--Other factors for consideration.
34A-2-108 Repealed
34A-2-109 Formation of state management plans for use of fertilizers and pesticides to protect waters and prevent pollution.
34A-2-110 34A-2-110. Repealed by SL 2005, ch 237, § 13.
34A-2-111 Complaint required to be signed.
34A-2-112 General permit for category of water pollution control--Secretary issued--Terms and conditions--Suspension, revocation or modification--Violation.
34A-2-113 Procedure for issuance, suspension, revocation and renewal of permits--Hearing--Uncontested recommendation.
34A-2-114 Administration of national pollutant discharge elimination system permit program for pretreatment surface water discharge systems--Fee.
34A-2-115 Sewage sludge, toxic pollutants, and significant industrial user defined.
34A-2-116 Development of pretreatment programs for publicly owned treatment works--Assumption of local responsibilities by secretary on request.
34A-2-117 Annual fee on facilities permitted under the national pollutant discharge elimination system.
34A-2-118 Publicly-owned treatment works fee schedule.
34A-2-119 Industrial and governmental treatment works fee schedule.
34A-2-119.1 Annual stormwater fees on construction and industrial sites.
34A-2-120 Fee schedule for other entities.
34A-2-121 Establishment of surface water discharge and pretreatment administrative subfund--Source of funds--Administration--Expenditures--Unexpended funds.
34A-2-122 Owner or operator of surface water discharge or pretreatment system to pay annual fees--Application fee--Dates due.
34A-2-123 Promulgation of rules on disposal of sewage sludge.
34A-2-124 General permit for category of water pollution control--Effective period--Modification, suspension, or revocation--Violation.
34A-2-125 Fee on certain concentrated animal feeding operations--Subfund created.
34A-2-126 Administrative rules on underground injection control Class III wells and in situ leach mining tolled.
34A-2-1. Legislative findings and policy.
Whereas the pollution of the waters of this state constitutes a menace to public health and welfare, creates public nuisances, is harmful to wildlife, fish, and aquatic life, and impairs domestic, agricultural, industrial, recreational, and other legitimate beneficial uses of water, and whereas the problem of water pollution in this state is closely related to the problem of water pollution in adjoining states, it is hereby declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for water supplies, for the propagation of wildlife, fish, and aquatic life, and for domestic, agricultural, industrial, recreational, and other legitimate uses; to provide that no waste be discharged into any waters of the state without first receiving the necessary treatment or other corrective action to protect the legitimate and beneficial uses of such waters; to provide for the prevention, abatement, and control of new and existing water pollution; and to cooperate with other agencies of the state, agencies of other states, and the federal government in carrying out these objectives.
Source: SL 1973, ch 280, § 1; SDCL Supp, § 46-25-23.
34A-2-2. Definition of terms.
Terms used in this chapter mean:
(1) "Board," the Water Management Board;
(2) "Disposal system," a system for disposing of wastes, either by surface or underground methods, and includes sewerage systems, treatment works, disposal wells, septic tanks, and other systems;
(3) "Person," the state or any agency or institution thereof, any municipality, political subdivision, public or private corporation, individual, partnership, limited liability company, association, federal agency, or other entity, and includes any officer or governing or managing body of any municipality, political subdivision, or public or private corporation, or limited liability company;
(4) "Point source," any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged;
(5) "Pollutant," any dredged spoil, solid waste, incinerator residue, sewage, sewage sludge, garbage, trash, munitions, chemical waste, biological material, radioactive material, heat, wrecked or discarded equipment, rock, sand, cellar dirt or any industrial, municipal or agricultural waste discharged into waters of the state. This term does not mean sewage from water craft; or water, gas or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the state after it is determined that such injection or disposal will not result in the degradation of ground or surface water resources;
(6) "Pollution," such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state as exceeds that permitted by state effluent or water quality standards, including change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental, or injurious to public health, safety, or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish, or other aquatic life;
(7) "Publicly owned treatment works," any device or system used in a treatment, including recycling and reclamation, of municipal sewage or industrial waste of a liquid nature which is owned by a state or municipality. This term includes sewers, pipes or other conveyances only if they convey wastewater to a publicly owned treatment works providing treatment;
(8) "Secretary," the secretary of the Department of Agriculture and Natural Resources;
(9) "Sewerage system," pipelines or conduits, pumping stations, and force mains, and all other structures, devices, appurtenances and facilities used for collecting or conducting wastes to an ultimate point for treatment disposal;
(10) "Treatment works," any plant or other works, used for the purpose of treating, stabilizing or holding wastes;
(11) "Wastes," sewage, industrial wastes, pollutants and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any waters of the state;
(12) "Waters of the state," all waters within the jurisdiction of this state, including all streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, public or private, situated wholly or partly within or bordering upon the state; and
(13) "Water standards," water quality standards adopted pursuant to §§ 34A-2-10 and 34A-2-11 or actual existing beneficial uses, whichever is higher, and effluent standards adopted pursuant to § 34A-2-13 or pursuant to the best professional judgment of the secretary, whichever is applicable.
Source: SL 1973, ch 280, § 2; SDCL Supp, § 46-25-24; SL 1984, ch 243, § 1; SL 1988, ch 285, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1994, ch 351, § 67; SL 2011, ch 165, § 34; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2-6. Planning consistent with federal requirements--Maximum daily loads.
The secretary may establish and conduct a continuing planning process consistent with the requirements of the Federal Water Pollution Control Act, as amended to January 1, 2011, including the establishment and application of maximum daily loads of pollutants.
Source: SL 1973, ch 280, § 6 (12); SDCL Supp, § 46-25-28; SL 2011, ch 165, § 35.
34A-2-10. Classification of waters.
The Water Management Board shall promulgate rules pursuant to chapter 1-26 to establish or modify the classification of all waters in accordance with their present and future beneficial uses.
Source: SL 1973, ch 280, § 4 (2); SDCL Supp, § 46-25-32; SL 1978, ch 260, § 1; SL 1993, ch 256, § 8.
34A-2-11. Water quality standards--Factors considered--Objectives--Violation.
The Water Management Board shall promulgate rules pursuant to chapter 1-26 to establish water quality standards and to classify water according to its beneficial uses. The board shall consider environmental, technical, social, and economic factors and present use, persons adversely affected, natural background waters in relationship to the contaminants and pollutants contained in the waters, existing degradation, and irretrievable man-induced conditions placed on those waters. The standards shall protect the public health and welfare and the use of the waters for public water supplies, propagation of fish and aquatic life and wildlife, recreational purposes, and agricultural, industrial, and other legitimate uses in accordance with the Federal Water Pollution Control Act as amended to January 1, 2011. A violation of standards promulgated pursuant to this section is subject to § 34A-2-75.
Source: SDC Supp 1960, § 61.0145 as enacted by SL 1966, ch 260, § 1; SL 1967, ch 340; SDCL § 46-25-7; SL 1973, ch 280, § 4 (3); SDCL Supp, § 46-25-33; SL 1978, ch 260, § 2; SL 1986, ch 295, § 9; SL 1988, ch 285, § 1A; SL 1992, ch 158, § 16B; SL 1993, ch 256, § 9; SL 2011, ch 165, § 36.
34A-2-11.1. Presumption favoring existing quality standards.
For the purpose of §§ 34A-2-10 and 34A-2-11, existing valid water quality standards shall be presumed to be in accordance with such sections and the presumption shall be rebuttable.
Source: SL 1978, ch 260, § 3.
34A-2-12. Regulation of public water supplies--Violation.
The Board of Water Management shall promulgate rules pursuant to chapter 1-26 regulating public water supplies. A violation of rules promulgated pursuant to this section is subject to § 34A-2-75.
Source: SL 1974, ch 245, § 10; SDCL Supp, § 46-25-33.1; SL 1985, ch 283, § 24; SL 1992, ch 158, § 16C; SL 1993, ch 256, § 10; SL 2011, ch 166, § 1.
34A-2-13. Effluent standards--Minimum requirements--Violation.
The board shall promulgate rules pursuant to chapter 1-26 to formulate effluent standards, which include as a minimum all categories for which the federal government has set standards pursuant to the Federal Water Pollution Control Act, as amended to January 1, 2011. The state standards shall be at least as stringent as the standards adopted by the federal government. Any person who violates these standards is subject to § 34A-2-75.
Source: SL 1973, ch 280, § 4 (4); SDCL Supp, § 46-25-34; SL 1992, ch 158, § 17; SL 1993, ch 256, § 11; SL 2011, ch 165, § 37.
34A-2-14. Pretreatment standards for industrial users of inadequate public treatment works--Violation.
The board shall promulgate rules pursuant to chapter 1-26 governing pretreatment standards to be applied against industrial users of publicly owned treatment works for the introduction of pollutants into publicly owned treatment works which interfere with, pass through, or otherwise are incompatible with such treatment works. A violation of rules promulgated pursuant to this section is subject to § 34A-2-75.
Source: SL 1974, ch 287, § 1; SDCL Supp, § 46-25-34.1; SL 1988, ch 285, § 2; SL 1992, ch 158, § 17A.
34A-2-15. Violation of pretreatment standards for industrial user--Implementation of Federal Water Pollution Control Act.
Any industrial user of publicly owned treatment works who violates pretreatment standards is subject to § 34A-2-75. The secretary or the owner of a publicly owned treatment works shall implement all provisions of section 307 of the Federal Water Pollution Control Act as amended to January 1, 2011, including issuing pretreatment industrial user permits to significant industrial users in accordance with §§ 34A-2-30 and 34A-2-36.
Source: SL 1974, ch 287, § 2; SDCL Supp, § 46-25-34.2; SL 1988, ch 285, § 3; SL 1992, ch 158, § 18; SL 1992, ch 254, § 53; SL 2011, ch 165, § 38.
34A-2-16. Enforcement of pretreatment standards for industrial users.
The secretary and owners of publicly owned treatment works may enforce pretreatment standards for pollutants introduced into its publicly owned treatment works, pursuant to the compliance and enforcement procedures of this chapter, by industrial users of such treatment works.
Source: SL 1974, ch 287, § 3; SDCL Supp, § 46-25-34.3; SL 1988, ch 285, § 4.
34A-2-17. Periodic review of classification and standards.
The board shall review from time to time, at intervals of not more than three years, established classification of waters, water quality standards, and effluent standards.
Source: SL 1973, ch 280, § 4 (5); SDCL Supp, § 46-25-35.
34A-2-18. Procedure for establishment of classification, standards or rules.
Before waters are classified or standards established or modified, or rules made, revoked, or modified, the board shall follow the procedures established by chapter 1-26.
Source: SDC Supp 1960, § 61.0145 as enacted by SL 1966, ch 260, § 1; SL 1967, ch 340; SDCL, § 46-25-8; SL 1973, ch 280, § 10; SDCL Supp, § 46-25-36.
34A-2-20. Establishment of waste treatment requirements.
The board shall establish minimum requirements for the treatment of wastes.
Source: SL 1973, ch 280, § 4 (11); SDCL Supp, § 46-25-38.
34A-2-21. Causing pollution of waters prohibited--Placement of wastes--Violation.
No person may cause pollution of any waters of the state, or place or cause to be placed any wastes in a location where they are likely to cause pollution of any waters of the state. A violation of this section is subject to § 34A-2-75 and may be abated as a public nuisance.
Source: SDC 1939, §§ 13.1506, 61.9901; SDCL, § 46-25-17; SL 1973, ch 280, § 8 (1); SDCL Supp, § 46-25-39; SL 1977, ch 190, § 635; SL 1984, ch 243, § 3; SL 1992, ch 158, § 20.
34A-2-22. Reduction of existing water quality by discharge of waste prohibited--Violation as nuisance.
No person may discharge any wastes into any waters of the state which reduce the quality of such waters below the water quality level existing on March 27, 1973. A violation of this section is subject to § 34A-2-75 and may be abated as a public nuisance.
Source: SL 1973, ch 280, § 8 (2); SDCL Supp, § 46-25-40; SL 1977, ch 190, § 636; SL 1984, ch 243, § 4; SL 1992, ch 158, § 21.
34A-2-24. Discharge of wastes allowed when economic or social necessity found--Exception.
Notwithstanding § 34A-2-22, discharge of wastes into waters of the state which reduce the quality of such waters below the water quality level existing on March 27, 1973, will be allowed if it is affirmatively demonstrated to the board and the board finds by a majority vote of its members, after a public hearing on such request, that there may be a discharge, if the discharge will not result in the violation of applicable water standards, and if the discharge is found justifiable as a result of necessary economic or social development. The board may not allow a discharge if the discharge results in a violation of the existing water standards.
Source: SDC 1939, § 61.0109 as added by SL 1947, ch 416; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0145; repealed by omission from SL 1966, ch 260, § 1; re-enacted by SL 1967, ch 340; SDCL § 46-25-6; SL 1973, ch 280, § 8 (2); SDCL Supp, § 46-25-42; SL 1988, ch 285, § 4A; SL 2011, ch 165, § 39.
34A-2-25. Technology considered in determining economic justification for waste.
In determining the justification for economic development under § 34A-2-24, the board shall consider and require in its decision, technology reasonably available for all discharges into that segment of state waters affected by the decision, which will result in further progress toward the goal of eliminating the discharge of all wastes.
Source: SL 1973, ch 280, § 8 (2); SDCL Supp, § 46-25-43; SL 1988, ch 285, § 5.
34A-2-26. Biennial review of decisions to allow discharge waste.
A decision issued pursuant to § 34A-2-24 shall be reviewed at least every two years.
Source: SL 1973, ch 280, § 8 (2); SDCL Supp, § 46-25-44; SL 1988, ch 285, § 6.
34A-2-27. Construction permits required for activities discharging wastes into water--Violation.
No person may carry on any of the following activities without a valid construction permit from the water management board for the disposal of all wastes which are, or may be, discharged thereby into the groundwaters of the state, nor may any person carry on any of the following activities without approval of plans and specifications from the secretary of the department pursuant to § 34A-2-29 for the disposal of all wastes which are, or may be, discharged thereby into surface waters of the state:
(1) The construction, installation, modification, or operation of any disposal system or part thereof, or any extension or addition thereto;
(2) The increase in volume or strength of any wastes in excess of the permissive discharge specified under any existing permit;
(3) The construction, installation, or operation of any industrial, commercial, or other establishment, or any extension or modification thereof or addition thereto, the operation of which would cause an increase in the discharge of wastes into the groundwaters of the state or would otherwise alter the physical, chemical, or biological properties of any groundwaters of the state in any manner not already lawfully authorized; or
(4) The construction or use of any new outlet for the discharge of any waters into the waters of the state.
A violation of this section is subject to § 34A-2-75.
Source: SDC 1939, § 61.0109 as added by SL 1947, ch 416; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0145; repealed by omission from SL 1966, ch 260, § 1; re-enacted by SL 1967, ch 340; SDCL, § 46-25-6; SL 1973, ch 280, § 8 (4); SDCL Supp, § 46-25-45; SL 1977, ch 190, § 637; SL 1984, ch 243, § 5; SL 1991, ch 288, § 15; SL 1992, ch 158, § 23.
34A-2-28. Rules for permits to discharge wastes--Plans and specifications for disposal systems--Violation.
The board shall promulgate rules pursuant to chapter 1-26 governing application, public notice, and public participation for permits to discharge sewage, industrial wastes, or other wastes into state waters, including rules requiring the filing of plans and specifications relating to the construction, modification, or operation of disposal systems.
A violation of rules promulgated pursuant to this section is subject to § 34A-2-75.
Source: SL 1973, ch 280, § 4 (6); SDCL Supp, § 46-25-46; SL 1992, ch 158, § 24; SL 1993, ch 256, § 12.
34A-2-29. Plans, specifications, and information required by secretary.
The secretary, under such conditions as the secretary may prescribe, may require the submission of such plans, specifications, and other information as the secretary deems necessary to carry out the provisions of this chapter or to carry out rules promulgated pursuant to the provisions of this chapter.
Source: SL 1973, ch 280, § 8 (4); SDCL Supp, § 46-25-47; SL 2011, ch 165, § 40.
34A-2-30. Rules regarding permit procedure.
The board shall promulgate rules pursuant to chapter 1-26 regarding the issuance, denial, modification, or revocation of permits governed by this chapter.
Source: SL 1973, ch 280, § 4 (7); SDCL Supp, § 46-25-48; SL 1993, ch 256, § 13.
34A-2-31. Issuance, revocation, or denial of permits to discharge waste.
The secretary shall issue, suspend, revoke, modify, or deny permits to discharge sewage, industrial wastes, or other wastes to state waters, consistent with provisions of this chapter and with rules promulgated by the board pursuant to chapter 1-26.
Source: SL 1973, ch 280, § 6 (1); SDCL Supp, § 46-25-49; SL 1993, ch 256, § 14.
34A-2-32. Examination and approval or disapproval of plans for discharge of waste--Changes in plans.
The secretary shall examine and approve or disapprove plans and other information needed to determine whether a permit should be issued or suggest changes in plans as a condition to the issuance of a permit.
Source: SL 1973, ch 280, § 6 (2); SDCL Supp, § 46-25-50.
34A-2-33. Certification of compliance with federal pollution control requirements.
The secretary may certify, in accordance with rules promulgated by the board pursuant to chapter 1-26, that an applicant for a federal license or permit necessary to conduct any activity which may result in a discharge into waters of the state has satisfactorily shown that the applicant will comply with sections 301, 302, 306, and 307 of the Federal Water Pollution Control Act as amended to January 1, 2011. This section and § 34A-2-34 shall be interpreted to implement the purposes of section 401 of the Federal Water Pollution Control Act as amended to January 1, 2011.
Source: SL 1976, ch 285, § 1; SDCL Supp, § 46-25-50.1; SL 1986, ch 295, § 10; SL 1988, ch 285, § 6A; SL 1993, ch 256, § 15; SL 2011, ch 165, § 41.
34A-2-34. Rules for grant or denial of certification--Procedural requirements of rules.
The board shall promulgate rules pursuant to chapter 1-26 establishing procedures which the secretary shall follow in granting or denying certification under § 34A-2-33. The rules may not exceed minimum federal regulations. The rules shall require adequate public notice of an application for certification within an area no smaller than the county where the activity is located, opportunity for public participation in the decision-making process on an application for certification, and opportunity and procedures for contested case hearings on applications for certification in conformity with chapter 1-26.
Source: SL 1976, ch 285, § 1; SDCL Supp, § 46-25-50.2; SL 1993, ch 256, § 16.
34A-2-35. Public hearing on permit to discharge waste--Notice--Uncontested recommendation.
Before issuing any permit pursuant to § 34A-2-36, the secretary shall provide an opportunity for public hearing, with notice of the opportunity for hearing, in accordance with applicable laws, rules, and regulations. If the recommendation of the department pursuant to § 34A-2-24, 34A-2-27, or 34A-2-36, is not contested, that recommendation shall become a final determination on the application. If an uncontested recommendation is for approval or conditional approval of the application, the permit shall be issued by the secretary consistent with the recommendation.
Source: SL 1973, ch 280, § 9 (1); SDCL Supp, § 46-25-51; SL 1991, ch 288, § 14; SL 2011, ch 165, § 42.
34A-2-36. Permit to discharge waste into surface waters required--Issuance--Maximum duration--Standards to be met--Violation.
No person may discharge any waste, pollutant, or combination of pollutants, into surface waters from a point source without a permit consistent with rules promulgated by the board pursuant to chapter 1-26 and this chapter. A violation of this section is subject to § 34A-2-75.
The secretary may, after notice and opportunity for public hearing, issue a permit for the discharge of any waste, pollutant, or combination of pollutants into surface waters, for a period not to exceed five years, or for a period not to exceed ten years for a concentrated animal operation that is not required to have a permit under 40 C.F.R. § 122.23(d)(1), as of January 1, 2021, upon condition that such discharge meets or will meet all applicable state and federal water quality standards and effluent standards and all other requirements of this chapter. A violation of a condition of a permit issued pursuant to this section is subject to § 34A-2-75.
Source: SDC 1939, § 61.0109 as added by SL 1947, ch 416; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0145; repealed by omission from SL 1966, ch 260, § 1; re-enacted by SL 1967, ch 340; SDCL, § 46-25-6; SL 1973, ch 280, § 9; SDCL Supp, § 46-25-52; SL 1988, ch 285, § 7; SL 1992, ch 158, § 25; SL 1993, ch 256, § 17; SL 2021, ch 161, § 1.
34A-2-36.1. Permit to discharge waste into underground waters--Issuance--Maximum duration--Standards to be met--Violation.
The secretary may, after notice and opportunity for public hearing, issue a permit for the discharge of any waste, pollutant, or combination of pollutants into underground waters, for a period not to exceed five years, upon condition that such discharge meets or will meet all applicable state and federal water quality standards and all other requirements of this chapter. A violation of a condition of a permit issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1988, ch 285, § 7A; SL 1992, ch 158, § 25A.
34A-2-36.2. Concentrated animal feeding operation--Permit.
Each concentrated animal feeding operation, as defined by 40 C.F.R. § 122.23 (January 1, 2023), shall operate under a general or individual water pollution control permit, issued pursuant to § 34A-2-36.
Source: SL 2007, ch 203, § 1; SL 2023, ch 131, § 1.
34A-2-36.3. Permit required for large operations.
If an operation processes or stores manure, or processes or stores process wastewater, as those terms are defined in 40 C.F.R. § 122.23 (January 1, 2023), without coverage under a concentrated animal feeding operation's general or individual water pollution control permit issued pursuant to §§ 34A-2-36 and 34A-2-36.2, and if the maximum number of permitted or unpermitted animals from which manure or process wastewater is processed or stored would meet the definition of a large concentrated animal feeding operation, under 40 C.F.R. § 122.23 (January 1, 2023), that operation must obtain its own general or individual water pollution permit pursuant to § 34A-2-36.
Source: SL 2023, ch 131, § 2.
34A-2-37. Effluent limitations enforced in issuance of permits.
The secretary shall require as permit conditions under § 34A-2-36 the achievement of:
(1) Effluent limitations based upon the application of such levels of treatment, technology, and processes as are required under the Federal Water Pollution Control Act, as amended to January 1, 2011;
(2) Any more stringent effluent limitations necessary to meet water quality criteria established pursuant to any state or federal law, rule, or regulation.
Effluent limitations prescribed under this section shall be achieved in the shortest reasonable period of time consistent with state or federal law, and any regulations or rules promulgated thereunder.
Source: SL 1973, ch 280, § 9 (2); SDCL Supp, § 46-25-53; SL 1993, ch 256, § 18; SL 2011, ch 165, § 43.
34A-2-38. Limitations on volume and strength of waste discharged under permit--Specification of limitations and conditions.
The secretary shall clearly specify in any permit any limitations imposed as to the volume, strength, and other significant characteristics of the waste to be discharged consistent with provisions of §§ 34A-2-35 to 34A-2-43, inclusive. The secretary shall specify in the permit any limitations and conditions that may be necessary to ensure the proper use and disposal of sewage sludge.
Source: SL 1973, ch 280, § 6 (3); SDCL Supp, § 46-25-54; SL 1992, ch 254, § 92.
34A-2-39. Schedules of compliance in permits for discharge.
The secretary may set and revise schedules of compliance and include such schedules within the terms and conditions of permits for discharge of wastes.
Source: SL 1973, ch 280, § 9 (3) (a); SDCL Supp, § 46-25-55; SL 1988, ch 285, § 8.
34A-2-39.1. Extension of time to meet quality and effluent standards.
The secretary may issue an extension to a point source or nonpoint source discharger, in which to meet state water quality standards or effluent standards if the extension is not in conflict with federal law, and if it is determined that:
(1) The violation was the result of actions or conditions outside the control of the discharger;
(2) The discharger has acted in good faith;
(3) There has been a commitment of necessary resources to achieve compliance at the earliest date probable;
(4) The extension would not result in imposition of any additional controls on any other point or nonpoint source;
(5) Facilities necessary for compliance are under construction and will be completed at the earliest date probable.
Source: SL 1978, ch 261; SL 1988, ch 285, § 9; SL 2011, ch 165, § 44.
34A-2-40. Recording, reporting and inspection conditions in permit to discharge.
The secretary, in accordance with rules promulgated by the board pursuant to chapter 1-26, may prescribe terms and conditions for permits issued under this chapter to ensure compliance with applicable state and federal effluent standards and water quality standards, including requirements concerning recording, reporting, monitoring, entry, and inspection to the extent allowed under this chapter.
Source: SL 1973, ch 280, § 9 (3) (b); SDCL Supp, § 46-25-56; SL 1988, ch 285, § 10; SL 1993, ch 256, § 19.
34A-2-41. Conditions in permits issued for publicly owned treatment works.
The secretary, in accordance with rules promulgated by the board pursuant to chapter 1-26, may impose as conditions in permits for the discharge of wastes from publicly owned treatment works appropriate measures to establish and ensure compliance by industrial users with pretreatment standards, and any system of user charges required under state or federal law or any regulations or rules promulgated thereunder.
Source: SL 1973, ch 280, § 9 (3) (d); SDCL Supp, § 46-25-57; SL 1988, ch 285, § 11; SL 1993, ch 256, § 20.
34A-2-42. Changes to be reported under permit for publicly owned treatment works.
The secretary may impose as conditions in permits for the discharge of wastes from publicly owned treatment works requirements for information to be provided by the permittee concerning new introductions of wastes or substantial changes in the volume or character of wastes being introduced into such treatment works.
Source: SL 1973, ch 280, § 9 (3) (c); SDCL Supp, § 46-25-58; SL 1988, ch 285, § 12.
34A-2-43. Discharges which may not be authorized by permit.
No permit may be issued authorizing any of the following discharges:
(1) The discharge of any radiological, chemical, or biological warfare agent or high level radioactive waste;
(2) Any discharge which the secretary of the army, acting through the chief of engineers, finds would substantially impair anchorage and navigation of any waters of the United States;
(3) Any discharge to which the administrator of the Environmental Protection Agency has objected, pursuant to any right provided to the administrator under the Federal Water Pollution Control Act, as amended to January 1, 2011;
(4) Any discharge which is in conflict with an areawide waste treatment management plan, approved under the Federal Water Pollution Control Act, as amended to January 1, 2011.
Source: SL 1973, ch 280, § 9 (4); SDCL Supp, § 46-25-59; SL 2011, ch 165, § 45.
34A-2-44. Records, monitoring and reporting required on pollution sources.
The secretary may require the owner or operator of any point source, including an industrial user of a publicly owned treatment works, to:
(1) Establish and maintain records;
(2) Prepare and submit reports;
(3) Install, use, and maintain monitoring equipment or methods, including, where appropriate, biological monitoring methods;
(4) Sample effluents; and
(5) Provide such other information as the secretary may reasonably require.
Source: SL 1973, ch 280, § 6 (7); SDCL Supp, § 46-25-60; SL 1988, ch 285, § 13.
34A-2-45. Inspection powers with respect to pollution sources.
The secretary shall, at reasonable times, have access to any point source, including an industrial user of a publicly owned treatment works, and copy any records, inspect any monitoring equipment or method required under § 34A-2-44, to sample any effluents being discharged into the waters of the state, or to ensure compliance with the provisions of this chapter.
Source: SL 1973, ch 280, § 6 (9); SDCL Supp, § 46-25-61; SL 1988, ch 285, § 14.
34A-2-46. Right of entry on premises where pollution produced.
The secretary may enter, upon presentation of proper credentials upon any premises in which a point source, including an industrial user of a publicly owned treatment works, is located, or in which any records required to be maintained pursuant to § 34A-2-44 are located.
Source: SL 1973, ch 280, § 6 (8); SDCL Supp, § 46-25-62; SL 1988, ch 285, § 15.
34A-2-48. Orders to clean up material spilled--Violation.
The secretary shall issue orders to any person to clean up any material which the person or the person's employee, agent, or subcontractor had accidentally or purposely dumped, spilled, or otherwise deposited in or in such proximity to state waters that they may pollute state waters. A violation of an order issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1973, ch 280, § 6 (6); SDCL Supp, § 46-25-64; SL 1992, ch 158, § 25B; SL 1993, ch 34, § 4; SL 2011, ch 165, § 46.
34A-2-49. Grounds for revocation, suspension, or modification of permit.
Any permit issued pursuant to this chapter may be revoked, modified, or suspended, in whole or in part, during its term for cause, including the following:
(1) Violation of any condition of the permit;
(2) Obtaining a permit by misrepresentation or failure to disclose fully all relevant facts; or
(3) Change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge.
Source: SL 1973, ch 280, § 9 (5); SDCL Supp, § 46-25-65; SL 2011, ch 165, § 47.
34A-2-50. Notice of denial, revocation, suspension, or modification of permit--Hearing--Decision by secretary.
If the secretary recommends denial of an application for a permit, or revokes, suspends, or modifies a permit, the secretary shall give written notice of the action to the applicant or holder, who may request a hearing before the secretary. The hearing shall be held within thirty days after receipt of written request. The secretary may affirm, modify, or reverse the secretary's initial decision based upon the evidence presented at the hearing.
Source: SL 1973, ch 280, § 9 (6); SDCL Supp, § 46-25-66; SL 1988, ch 285, § 16; SL 2011, ch 165, § 48.
34A-2-51. Effective date of revocation, suspension, or modification of permit.
Modification, revocation, or suspension of a permit shall be effective thirty days after issuance, unless a later date is specified. If the holder requests a hearing before the secretary, the order of modification, revocation, or suspension shall be effective twenty days after final determination by the secretary.
Source: SL 1973, ch 280, § 9 (6); SDCL Supp, § 46-25-67; SL 1988, ch 285, § 17.
34A-2-52. Procedural requirements in dealing with violations.
The procedures set forth in §§ 34A-2-53 to 34A-2-60, inclusive, shall be followed in addition to the procedures outlined by chapter 1-26.
Source: SL 1973, ch 280, § 11; SDCL Supp, § 46-25-68.
34A-2-53. Notice to correct violations--Contents--Civil penalty.
If the secretary has reason to believe that a violation of this chapter or any rule made or permit issued under it is threatened or has occurred, the secretary shall cause written notice to be served personally or by mail upon the alleged violator or the alleged violator's agent. The notice shall state the provisions alleged to be violated, the facts alleged to constitute a violation, the nature of any corrective action proposed to be required, and the time within which such action is to be taken. For the purpose of this chapter, service by mail is deemed complete on the date of mailing.
Any person who violates an order issued pursuant to this section is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.
Source: SDC 1939, § 61.0112; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0148; SL 1966, ch 260, § 3; SDCL § 46-25-12; SL 1973, ch 280, § 11 (1); SDCL Supp, § 46-25-69; SL 1988, ch 285, § 18; SL 1992, ch 158, § 26; SL 2011, ch 165, § 49.
34A-2-54. Hearing on violation--Notice.
In a notice given under § 34A-2-53, the secretary may also require the alleged violator to appear for a public hearing to be conducted before the board, and to answer the charges made against the alleged violator. In such event, the notice shall also meet the requirements of § 1-26-17, and notice shall be given in a manner which will reasonably inform the public.
Source: SDC 1939, § 61.0112; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0148; SL 1966, ch 260, § 3; SDCL § 46-25-12; SL 1973, ch 280, § 11 (2); SDCL Supp, § 46-25-70; SL 1988, ch 285, § 19; SL 2011, ch 165, § 50.
34A-2-55. Time of hearing on violation--Respondent's request for change of time.
A hearing pursuant to § 34A-2-54 shall be held no sooner than fifteen days after service of the notice, except that the board may set an earlier date for the hearing if they are requested to do so by the alleged violator. The board may set a later date for the hearing at the request of the alleged violator, if the alleged violator shows good cause for delay.
Source: SDC 1939, § 61.0112; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0148; SL 1966, ch 260, § 3; SDCL, § 46-25-12; SL 1973, ch 280, § 11 (2); SDCL Supp, § 46-25-71; SL 1988, ch 285, § 20.
34A-2-56. Respondent's request for hearing on violation--Time of filing--Time of hearing.
If the secretary does not require an alleged violator to appear for a public hearing pursuant to § 34A-2-54, the alleged violator may request the board to conduct such a hearing. Such request shall be in writing and shall be filed with the board no later than thirty days after service of a notice under § 34A-2-53. If such a request is filed, a hearing shall be held within forty-five days.
Source: SL 1973, ch 280, § 11 (3); SDCL Supp, § 46-25-72; SL 1988, ch 285, § 21.
34A-2-57. Procedure in hearing on violation--Venue.
If a hearing is held pursuant to the provisions of § 34A-2-54 or 34A-2-56, it shall be treated as a contested case in accordance with chapter 1-26 and may be held in any county in which the violation is alleged to have occurred.
Source: SDC 1939, § 61.0112; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0148; SL 1966, ch 260, § 3; SDCL, § 46-25-12; SL 1973, ch 280, § 11 (4); SDCL Supp, § 46-25-73.
34A-2-58. Parties permitted to appear and present evidence at hearing on violation.
The board shall permit all parties to respond to the notice served under § 34A-2-53, and all other interested parties, to present evidence and argument on all issues, and to conduct cross-examination required for full disclosure of the facts.
Source: SL 1973, ch 280, § 11 (4); SDCL Supp, § 46-25-74; SL 1988, ch 285, § 22.
34A-2-59. Record of hearing on violation.
The board shall keep a record of the hearing as required by chapter 1-26, and at least one copy of any written exhibits put in evidence.
Source: SL 1973, ch 280, § 11 (4); SDCL Supp, § 46-25-75; SL 1988, ch 285, § 23.
34A-2-60. Board's decision and order to abate pollution--Times prescribed in order--Civil penalty for violation.
After a hearing, or on the failure of an alleged violator to make a timely request for a hearing, the board may issue an appropriate decision in compliance with § 1-26-25 and an order for the prevention, abatement, or control of pollution. The order shall state the date or dates by which any violation shall cease and may prescribe timetables for necessary action in preventing, abating, or controlling the pollution.
Any person who violates an order issued pursuant to this section is subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.
Source: SDC 1939, § 61.0113; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0149; SL 1966, ch 260, § 4; SDCL, § 46-25-13; SL 1973, ch 280, § 11 (5); SDCL Supp, § 46-25-76; SL 1988, ch 285, § 24; SL 1992, ch 158, § 27.
34A-2-64. Order not stayed by appeal--Findings required to grant stay.
Notwithstanding the provisions of § 1-26-32, an appeal may not stay the effectiveness of any order of the board, unless the court finds that there is probable cause to believe that refusal to grant a stay will cause serious harm to the affected party, and that the threatened violation or violation will not continue or, if it does continue, any harmful effects on waters will be remedied immediately on the cessation of the violation.
Source: SL 1973, ch 280, § 12 (3); SDCL Supp, § 46-25-80; SL 1988, ch 285, § 28.
34A-2-65. Judicial enforcement of order pending appeal.
If the court does not stay the effectiveness of an order of the board, it may enforce compliance with that order by issuing a temporary restraining order or an injunction at the request of the board.
Source: SL 1973, ch 280, § 12; SDCL Supp, § 46-25-81.
34A-2-66. Legal representation of board in appeal.
In any appeal from the board, the attorney general shall represent the board, if requested, or the board may appoint special counsel for the proceedings, subject to the approval of the attorney general.
Source: SL 1973, ch 280, § 12 (1); SDCL Supp, § 46-25-82.
34A-2-67. Appeal bond not required of state or board.
Neither the state nor the board need give a bond or make a deposit for costs upon an action for judicial review or upon any subsequent appeal.
Source: SL 1973, ch 280, § 12 (2); SDCL Supp, § 46-25-83.
34A-2-68. Emergency order by secretary to stop pollution--Effective immediately--Preventive action by secretary--Violation.
No person may violate this chapter or any rule issued pursuant to this chapter, or commit an act which will cause substantial pollution, the harmful effects of which cannot be remedied immediately after the commission or cessation of the act. The secretary may order the person to stop, avoid, or moderate the act so that it is in compliance with this chapter or the substantial injury will not occur. The order is effective immediately upon receipt by the person to whom it is directed, unless the secretary provides otherwise. If the order is not complied with in a timely manner, the secretary may contain and recover pollutants to limit or prevent pollution of any state waters. A violation of an order issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1973, ch 280, § 15; SDCL Supp, § 46-25-84; SL 1984, ch 244, § 1; SL 1988, ch 285, § 29; SL 1992, ch 158, § 27A.
34A-2-69. Notice of emergency order.
Notice of an order pursuant to § 34A-2-68 shall conform to the requirements of §§ 34A-2-53 to 34A-2-60, inclusive, so far as practicable; the notice shall indicate that the order is an emergency order.
Source: SL 1973, ch 280, § 15; SDCL Supp, § 46-25-85.
34A-2-70. Hearing on emergency order--Time and procedure for hearing.
Upon issuing an order pursuant to § 34A-2-68, the secretary shall fix a place and time for a hearing before the board, not later than five days thereafter, unless the person to whom the order is directed requests a later time. The secretary may deny a request for a later time if the secretary finds that the person to whom the order is directed is not complying with the order. The hearing shall be conducted by the board in the manner specified in §§ 34A-2-53 to 34A-2-60, inclusive.
Source: SL 1973, ch 280, § 15; SDCL Supp, § 46-25-86; SL 1988, ch 285, § 30; SL 2011, ch 165, § 51.
34A-2-71.1. Investigation of discharge polluting state waters--Responsible person.
If the department has determined that a discharge that may cause or has caused the pollution of state waters has occurred, the department shall conduct an investigation to determine the responsible person. The investigation may include a title search of the affected property and shall attempt to designate as the responsible person the person deemed to be the most responsible for the occurrence of the discharge. If the identity of the person who caused the discharge can be determined, that person shall be designated as the responsible person. If the identity of the person who caused the discharge cannot be determined, the owner of the property or operator of the tank at the time of the discharge shall be designated as the responsible person. If the person deemed responsible for the discharge contests the department's decision, a title search of the affected property shall be done.
Source: SL 1989, ch 309, § 2; SL 1990, ch 290, § 2.
34A-2-72. Action in circuit court for immediate restraint of pollution.
In the alternative, upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantial endangerment to the health of persons or to the welfare of persons where such endangerment to welfare is to the livelihood of such persons, or that a person is violating or threatening to violate any of the provisions of this chapter, the secretary may bring suit on behalf of the state in the circuit court in which the violation is taking place to immediately restrain any person violating or threatening to violate this chapter, or causing or contributing to the alleged pollution, or to take such other action as may be necessary.
Source: SDC 1939, § 61.0115; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0151; SL 1966, ch 260, § 5; SDCL, § 46-25-15; SL 1973, ch 280, § 15; SDCL Supp, § 46-25-88; SL 1988, ch 285, § 32.
34A-2-73. Action by department to enjoin violations--Temporary injunction and restraining order.
The department may bring an action without furnishing of bond, for an injunction against the continuation of any threatened or actual violation, or against any person who fails to comply with an emergency order issued by the secretary by virtue of § 34A-2-68, or any final order of the secretary or board. The court to which the department applies for an injunction may issue a temporary injunction, if it finds that there is reasonable cause to believe that the allegations of the department are true, and it may issue a temporary restraining order pending action on the temporary injunction.
Source: SL 1973, ch 280, § 16; SDCL Supp, § 46-25-89; SL 1988, ch 285, § 33.
34A-2-74. Initiation of action to recover penalties.
In addition to or instead of issuing an order, the secretary or board may initiate appropriate action for recovery of a penalty, pursuant to §§ 34A-2-75 to 34A-2-79, inclusive.
Source: SL 1973, ch 280, § 11 (8); SDCL Supp, § 46-25-90.
34A-2-75. Violations classified as misdemeanor--Criminal and civil penalties.
Any person subject to this section, as provided in this chapter, is guilty of a Class 1 misdemeanor. In addition to a jail sentence authorized by § 22-6-2, a Class 1 misdemeanor imposed by this chapter is subject to a criminal fine not to exceed ten thousand dollars per day of violation. The violator is also subject to a civil penalty not to exceed ten thousand dollars per day of violation, or for damages to the environment of this state, or both.
Source: SDC 1939, § 61.0115; SL 1955, ch 430, § 1; SDC Supp 1960, § 61.0151; SL 1966, ch 260, § 5; SDCL § 46-25-16; SL 1973, ch 280, § 14 (1); SDCL Supp, § 46-25-91; SL 1977, ch 190, § 638; SL 1984, ch 243, § 6; SL 1988, ch 285, § 34; SL 1992, ch 158, § 28; SL 2011, ch 165, § 52.
34A-2-77. False representation or tampering with monitoring device prohibited--Violation.
No person may make any false statement, representation, or certification in any document filed or required to be maintained under this chapter, or falsify, tamper with, or knowingly render inaccurate any monitoring device or method required to be maintained under this chapter. A violation of this section is subject to § 34A-2-75.
Source: SL 1973, ch 280, § 14 (2); SDCL Supp, § 46-25-93; SL 1977, ch 190, § 639; SL 1984, ch 243, § 7; SL 1992, ch 158, § 30.
34A-2-78. Alternative remedies not barred by invoking penalties.
Any action pursuant to § 34A-2-75 or 34A-2-77 does not bar enforcement of the chapter, or of rules or orders issued pursuant to it by injunctive or other appropriate remedy.
Source: SL 1973, ch 280, § 14 (4); SDCL Supp, § 46-25-94; SL 1992, ch 158, § 31.
34A-2-79. Remedies under chapter alternative to remedies under other law.
A purpose of this chapter is to provide additional and cumulative remedies to prevent, abate, and control the pollution of state waters. Nothing in this chapter abridges or alters any rights or action of remedies in equity or under the common law or statutory law, criminal or civil, nor may any provision of this chapter be construed as estopping the state or any municipality or person as owners of water rights or otherwise in the exercise of their rights in equity or under the common law or statutory law to suppress nuisances or to abate pollution.
Source: SL 1973, ch 280, § 14 (5); SDCL Supp, § 46-25-95; SL 2011, ch 165, § 53.
34A-2-82. Acceptance of grants for water pollution control.
The secretary shall accept grants from the federal government and from other sources to carry out the provisions of this chapter.
Source: SL 1973, ch 280, § 6 (10); SDCL Supp, § 46-25-98.
34A-2-93. Promulgation of rules by board.
The board may promulgate rules pursuant to chapter 1-26:
(1) To establish surface and ground water quality standards;
(2) To establish design and installation requirements for on-site wastewater systems;
(3) To establish criteria for water pollution control facilities, to include facilities constructed for the protection and monitoring of groundwater;
(4) To establish the present and future beneficial uses of all waters under this chapter;
(5) To establish procedures for granting variances from water quality standards;
(6) To establish procedures for conducting inspections;
(7) To establish contested case procedures;
(8) To establish secondary treatment standards for wastewater facilities;
(9) To establish standards for surface water discharge permits;
(10) To establish pretreatment standards and requirements for local pretreatment programs;
(11) To establish standards for aboveground and underground storage tanks;
(12) To establish financial responsibility requirements for owners of underground and aboveground storage tanks;
(13) To establish standards for the remediation and cleanup of contaminated soils. The standards relating to cleanup of petroleum contamination must be based upon risk to human health and safety, as determined by the board. The board may adopt standards relating to cleanup of contamination, consistent with the American Society for Testing and Materials Standard E1739-95R15, Standard Guide for Risk-Based Corrective Action Applied at Petroleum Release Sites, as in effect on January 1, 2024, or other generally accepted risk-based cleanup methods;
(14) To establish standards for bulk chemical storage facilities;
(15) To establish requirements for underground injection control;
(16) To establish a groundwater discharge permit program;
(17) To establish a delegated national pollutant discharge elimination system program, as provided for under 40 C.F.R. Part 123 (January 1, 2024) and wastewater pretreatment program, as provided for under 40 C.F.R. Part 403 (January 1, 2024);
(18) To establish a priority listing for projects funded under the construction grant program; and
(19) To establish requirements for approval of plans for water pollution control facilities and water supply systems.
The board shall hold any hearings necessary for the proper administration of this chapter and initiate any action in court for the enforcement of this chapter.
Source: SL 1971, ch 209, § 5; SDCL Supp, § 46-25-22; SL 1973, ch 280, § 4 (8) to (10); SL 1973, ch 281, § 4; SDCL Supp, § 46-25-107; SL 1993, ch 256, § 22; SL 1995, ch 204, § 1; SL 2011, ch 165, § 57; SL 2024, ch 145, § 1.
34A-2-94. Public availability of records and information obtained under chapter--Trade secrets exception.
Any records, reports, or information obtained under this chapter shall, in the case of effluent data, be related to any applicable effluent limitations, pretreatment, or new source performance standards, and shall be available to the public. However, upon a showing satisfactory to the secretary by any person that records, information, or particular part thereof (other than effluent data, permit applications, and permits) to which the secretary has access under this chapter, if made public, would divulge methods or processes entitled to protection as trade secrets of such person, the secretary shall consider the record, report, or information, or particular portion of the record, report, or information, confidential, except that such record, report, or information may be disclosed to other officers, employees, or authorized representatives of the state or federal government concerned with carrying out this chapter, or when relevant, in any proceeding under this chapter.
Source: SL 1973, ch 280, § 13; SDCL Supp, § 46-25-108; SL 1988, ch 285, § 36; SL 2011, ch 165, § 58.
34A-2-96. Petroleum substances discharged into state waters--Liability for containment and recovery costs--Violation.
The owner or operator of a facility or vehicle that stores or transports petroleum substances is responsible for the costs of containment and recovery ordered by the secretary and incurred by the state as a result of a discharge of the petroleum substances into state waters. Any person causing the discharge shall be strictly liable to the owner or operator for all costs and proximate damages resulting from the discharge. A violation of an order issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1984, ch 244, § 2; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1992, ch 158, § 31A; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2-97. Petroleum substances discharged into state waters--Notice to secretary required--Restriction on use of information in criminal proceeding--Violation.
The owner or operator of a facility or vehicle that discharges a petroleum substance into state waters shall notify the secretary of agriculture and natural resources upon knowledge of the release. Notification received pursuant to this section and information obtained in the investigation of the notification may not be used in a criminal proceeding filed against the owner or operator, except in a prosecution for perjury or for giving a false statement. A violation of this section is subject to § 34A-2-75.
Source: SL 1984, ch 244, § 3; SL 1992, ch 158, § 31B; SL 2005, ch 10, § 26; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2-98. Underground storage tanks--Definitions.
Terms used in this section and § 34A-2-99 mean:
(1) "Department," Department of Agriculture and Natural Resources;
(2) "Local designated agencies," agencies of subdivisions of state government which are designated by the Governor to carry out specific portions of this section and § 34A-2-99;
(3) "Nonoperational storage tank," any underground storage tank in which regulated substances may not be deposited or from which regulated substances may not be dispensed;
(4) "Regulated substance," any substance defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601(14) (January 1, 2024), but not including any substance regulated as a hazardous waste under subtitle (C), and petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure, 60 degrees Fahrenheit and 14.7 pounds per square inch absolute; and
(5) "Underground storage tank," any tank or combination of tanks, including connected underground pipes, which contains an accumulation of regulated substances, and the volume of which, including the volume of the connected underground pipes, is ten percent or more beneath the surface of the ground. This term does not include:
(a) A farm or residential tank with a capacity of one thousand one hundred gallons or less used for storing motor fuel for noncommercial purposes;
(b) A tank used for storing heating oil for consumptive use on the premises where stored;
(c) A septic tank;
(d) A pipeline facility, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. § 60101 et seq. (January 1, 2024), the Hazardous Liquid Pipeline Safety Act of 1979, 49 U.S.C. § 60101 et seq. (January 1, 2024), or a pipeline which is an intrastate pipeline facility regulated under state laws comparable to the provisions of law referred to above;
(e) A surface impoundment, pit, pond or lagoon;
(f) A storm water or wastewater collection system;
(g) A flow-through process tank;
(h) A liquid trap or associated gathering lines directly related to oil or gas production and gathering operations;
(i) A storage tank situated in an underground area such as a basement, cellar, mineworking, drift, shaft, or tunnel if the storage tank is situated upon or above the surface of the floor; and
(j) Any pipes connected to any tank described in subsections (a) to (i), inclusive, of this subdivision.
Source: SL 1985, ch 284, § 1; SL 2011, ch 165, § 60; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021; SL 2024, ch 145, § 2.
34A-2-99. Underground storage tanks--Promulgation of rules--Violation.
The board shall promulgate rules, pursuant to chapter 1-26, to develop:
(1) Requirements for maintaining a leak detection system, an inventory control system together with tank testing, or a comparable system or method designed to identify releases in a manner consistent with the protection of human health and the environment;
(2) Requirements for maintaining records of any monitoring or leak detection system or inventory control system or tank testing system;
(3) Requirements for the reporting of any releases and corrective action taken in response to a release from an underground storage tank;
(4) Requirements for taking corrective action in response to a release from an underground storage tank. The standards relating to cleanup of petroleum contamination must be based upon risk to human health and safety as determined by the board. The board may adopt standards relating to cleanup of contamination consistent with the American Society for Testing and Materials Standard E1739-95R15, Standard Guide for Risk-Based Corrective Action Applied at Petroleum Release Sites, as in effect on January 1, 2024, or other generally accepted risk-based cleanup methods;
(5) Requirements for the closure of tanks to prevent future releases of regulated substances to the environment;
(6) Requirements for maintaining evidence of financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from operating an underground storage tank;
(7) Standards of performance for new underground storage tanks;
(8) Requirements for notifying the department or local designated agency of the existence of any operational or nonoperational underground storage tank;
(9) Requirements for providing the information required on the form issued pursuant to the Regulation of Underground Storage Tanks, 42 U.S.C. § 6991a(b)(2) (January 1, 2024).
A violation of rules promulgated pursuant to this section is subject to § 34A-2-75.
Source: SL 1985, ch 284, § 2; SL 1992, ch 158, § 31C; SL 1995, ch 204, § 2; SL 2011, ch 165, § 61; SL 2024, ch 145, § 3.
34A-2-100. Above ground stationary storage tank defined.
The term, above ground stationary storage tank, as used in this section and §§ 34A-2-101 and 34A-2-102 means any stationary tank or combination of stationary tanks above ground, including connected pipes, which stores an accumulation of regulated substances as defined in § 34A-2-98.
This term does not include:
(1) Any farm or residential tank used for storing motor fuels for noncommercial purposes;
(2) Any tank used for storing heating oil or motor fuels for consumptive use on the premises where stored;
(3) Any septic tank;
(4) Any pipeline facility, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C. § 60101 et seq. (January 1, 2024);
(5) Any surface impoundment, pit, pond, or lagoon;
(6) Any storm water or wastewater collection system;
(7) Any flow-through process tank;
(8) Any liquid trap or associated gathering lines directly related to oil and gas production and gathering operations;
(9) Any storage tank situated in an underground area such as a basement, cellar, mineworking, drift, shaft, or tunnel if the storage tank is situated upon or above the surface of the floor;
(10) Any pipes connected to any tank which is exempted in this subdivision; and
(11) Any tanks used for storing pesticides regulated under chapter 38-21, except those regulated pursuant to Subtitle I of the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. § 6901 et seq. (January 1, 2024).
Source: SL 1987, ch 258, § 1; SL 2011, ch 165, § 62; SL 2024, ch 145, § 4.
34A-2-101. Promulgation of rules--Public health and water protection--Violation.
The board shall promulgate rules, pursuant to chapter 1-26, to develop procedures necessary to safeguard the public health and welfare and prevent pollution of the waters of the state from the leakage, spillage, release, or discharge of regulated substances from above ground stationary storage tanks. These rules must be exercised in substantial conformity with the codes and standards recommended by the National Fire Protection Association, as contained in NFPA30, Flammable and Combustible Liquids Code (January 1, 2024), and NFPA 30A, Code for Motor Fuel Dispensing Facilities and Repair Garages (January 1, 2024). The rules must provide:
(1) Requirements for maintaining a leak detection system, an inventory system, or a comparable system or method designed to identify releases in a manner consistent with the protection of human health and the environment;
(2) Requirements for maintaining records of any monitoring or leak detection system or inventory control system;
(3) Requirements for the reporting of any releases and corrective action taken in response to a release from any above ground stationary storage tank;
(4) Requirements for taking corrective action in response to a release from any above ground stationary storage tank;
(5) Requirements for the closure of tanks to prevent future releases of regulated substances to the environment;
(6) Requirements for maintaining evidence of financial responsibility for taking corrective action and compensating third parties for bodily injury and property damage caused by sudden and nonsudden accidental releases arising from operating any above ground stationary storage tank;
(7) Standards of performance, including design, construction, installation, and compatibility standards for new above ground stationary storage tanks;
(8) Requirements for notifying the department or local designated agency of the existence of any operational or nonoperational above ground stationary storage tank; and
(9) Requirements for providing tank information required on the form provided by the department.
A violation of these rules is subject to § 34A-2-75.
Source: SL 1987, ch 258, § 2; SL 1992, ch 158, § 32; SL 2011, ch 165, § 63; SL 2024, ch 145, § 5.
34A-2-102. Installation of above ground stationary storage tank for storage of regulated substances prohibited--Exceptions--Violation.
No person may install any above ground stationary storage tank for the purpose of storing regulated substances unless the tank will prevent releases due to corrosion or structural failure for the operational life of the tank, is designed in a manner to prevent the release or threatened release of any stored substance, and the material used in the construction or lining of the tank is compatible with the substance to be stored. A violation of this section is subject to § 34A-2-75.
Source: SL 1987, ch 258, § 3; SL 1992, ch 158, § 33.
34A-2-103. Statement of groundwater protection strategy--Coordination of activities.
The state, under various statutes, has the established authority to provide for groundwater protection and pollution control. Under this chapter, the state has initiated a groundwater protection strategy that encompasses all waters below the surface of the land in a zone of saturation. This strategy consists of a variety of programs, activities and funds established by this chapter and other related chapters. These functions include chapters 46A-1, 46A-2, and 46A-3A to 46A-3E, inclusive, which provide for the state water plan, the state conservancy district and the establishment of water development districts; chapter 45-2, which provides for geologic surveys; chapters 46-2, 46-2A, 46-5, and 46-6, which provide for the regulation of water rights, including appropriation of water, collection, preservation, and publication of data on groundwater, liability for damages to domestic and municipal wells, and regulation of drilling and construction of drinking water wells; chapter 34A-3A, which provides for the regulation of public drinking water systems; chapter 34A-2, which provides for the protection and control of pollution to the groundwater, and includes groundwater discharge permits, a groundwater quality classification system, groundwater quality standards, underground storage tank and aboveground storage tank regulations, the regulation of wastewater treatment facilities, and the regulation of on-site disposal of wastewater; chapter 1-49, which provides for laboratory services related to environmental control; chapter 34A-13, which provides for a petroleum release compensation fund; chapter 34A-12, which provides for a regulated substance response fund; chapter 34A-6, which provides for the regulation of solid waste; chapter 38-19, which provides for the regulation of the use, storage and handling of fertilizers; chapter 38-21, which provides for the regulation of the use, storage and handling of pesticides; chapter 34A-2A, which provides for the regulation of chemigation; chapter 34A-11, which provides for the regulation of hazardous wastes including special provisions for the regulation of polychlorinated biphenyls; chapter 45-9, which provides for the regulation of oil and gas development, including underground injection control permits; chapters 45-6B and 45-6C, which provide for the regulation of mineral exploration, development, and mine reclamation; chapter 45-6, which provides for the regulation of sand and gravel operations; and chapter 45-6D, which provides for the regulation of uranium exploration. These programs, activities, and funds are all components of the state groundwater protection strategy and are used to maintain and improve the quality of the state's groundwaters. The agencies, departments, and programs responsible for administering these and other groundwater related functions shall coordinate their activities to ensure that comprehensive groundwater protection and management is being efficiently performed. The secretary, under the supervision of the Governor, shall oversee this coordination effort.
Source: SL 1989, ch 306, § 39; SL 2024, ch 145, § 6.
34A-2-104. Legislative findings--Declaration of public policy.
The Legislature finds that groundwater is a resource of immeasurable value to public health and welfare, critical for the provision of water supply needs for domestic, agricultural, industrial, mining, recreational and other beneficial uses of water, and that pollution of groundwater of this state from both point and nonpoint sources constitutes a menace to public health, welfare and the environment, and that there has been an increasing awareness on the part of the public, local governments and the state that groundwater must be protected, that once groundwater is polluted, it is extremely difficult and expensive to clean up, that both strong enforcement and public education are important and necessary components of the state strategy for minimizing and reducing potential pollution sources, and that effective preventive measures and swift response to releases of pollutants minimize groundwater pollution. It is hereby declared to be the public policy of this state to conserve the groundwaters of the state and to protect, maintain and improve the quality thereof for present and future beneficial uses through the prevention of pollution, correction of groundwater pollution problems and close control of limited degradation perimeters permitted for necessary economic or social development.
Source: SL 1989, ch 306, § 40.
34A-2-105. Conditions requiring submission of preventative action plan--Contents--Violation.
Whenever the board has established groundwater discharge limitations pursuant to § 34A-2-24, 34A-2-27, or 34A-2-36, and monitoring data indicate that the ambient groundwater quality has been degraded up to one-half of any permitted increase in pollutant concentration above the ambient concentration, the operator shall submit to the board a preventative action plan which includes an analysis of the discharge in relation to the increasing pollutant concentrations and any preventative actions to be taken to ensure that groundwater limitations will not be violated. A violation of this section is subject to § 34A-2-75.
Source: SL 1989, ch 306, § 40A; SL 1992, ch 158, § 33A.
34A-2-106. Development and administration of certain ongoing programs--Review and revision by secretary.
The secretary shall develop and administer ongoing programs relating to comprehensive evaluation and management of groundwater quantity and quality to further the goals of §§ 34A-2-1, 34A-2-103, and 34A-2-104. The programs shall include the identification of the general location, quantity, and quality of the state's groundwater. The secretary shall periodically review and revise as necessary the groundwater protection strategy to reflect additional knowledge concerning the extent, if any, of groundwater contamination resulting from fertilizers, pesticides, petroleum products and other pollutants, nonpoint sources of groundwater pollution, any practices or sources which may contribute to contamination of groundwater from both point and nonpoint sources, measures to minimize degradation of groundwater quality by pollutants, vulnerability of specific groundwater supplies to pollution, various analytical methods for analyzing petroleum products and other pollutants, nitrate and other pollutant fate and transport mechanisms, and best available and practicable remedial and disposal methods. The secretary shall incorporate this information in public education and technology transfer activities as appropriate.
Source: SL 1989, ch 306, § 41.
34A-2-107. Standards used in prioritizing groundwater prevention efforts--Other factors for consideration.
The secretary shall use the groundwater quality standards promulgated pursuant to §§ 34A-2-10 and 34A-2-11 in prioritizing the groundwater prevention and protection efforts for the state. Other factors that may be considered by the secretary include, but are not limited to, beneficial uses of water, the extent to which a groundwater source supplies or might feasibly supply public water systems or wellhead protection areas established pursuant to § 34A-3A-17, the degree of hazard to public health and welfare, the dependence of local citizens upon groundwater supplies, and the vulnerability of groundwater supplies to contamination.
Source: SL 1989, ch 306, § 45.
34A-2-109. Formation of state management plans for use of fertilizers and pesticides to protect waters and prevent pollution.
In conjunction with state universities and other interested parties, the secretary shall annually review new studies and data that relate to the relationships between fertilizer and pesticide use practices and the quality of waters of the state. From this review, the state shall formulate and revise as necessary state management plans for the use of fertilizers and pesticides that are based on protecting water quality and preventing groundwater pollution. These management plans will be based on use practices within the state as a whole or in specific areas within the state depending on hydrogeological differences, and shall be used by the state in regulating fertilizers and pesticides pursuant to chapters 38-19, 38-20A, and 38-21 in developing future contingency plans, and in performing public education.
Source: SL 1989, ch 306, § 49; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
34A-2-111. Complaint required to be signed.
No inspection or other action pursuant to § 34A-2-40, 34A-2-44, or 34A-2-45 that is based on, or is the result of, a complaint or the provision of information by a member of the general public may be carried out unless the person making the complaint or providing the information signs a complaint. The complaint shall remain confidential with the board and the secretary.
Source: SL 1991, ch 290.
34A-2-112. General permit for category of water pollution control--Secretary issued--Terms and conditions--Suspension, revocation or modification--Violation.
After public notice in at least three newspapers of general circulation in this state and notice to all municipalities, counties, and tribal governments and opportunity for public hearing, the secretary may issue a general permit for a category of water pollution control. A general permit issued by the secretary may be subject to such terms and conditions for installation, establishment, modification, operation, or abandonment of a category of water pollution control as the secretary finds reasonably necessary to adequately protect the public health, safety, welfare, and the environment of this state. Water pollution control activities conducted in conformity with a general permit do not require a permit issued under § 34A-2-36.
A general permit shall remain in effect for a period of five years, or for a period of ten years for a concentrated animal feeding operation that is not required to have a permit under 40 C.F.R. § 122.23(d)(1), as of January 1, 2021, from the date of issuance or until suspended, revoked, or modified by the secretary. A general permit may be modified after public notice and opportunity for public hearing. A general permit may be suspended or revoked after publication of notice and order of suspension and revocation in at least three newspapers of general circulation in this state. If an affected facility or interested party wishes to contest the order, a request for hearing shall be filed with the department within twenty days. A hearing on the matter shall be held as soon thereafter as practicable. Notice of hearing shall be published in at least three newspapers of general circulation in this state. Any facility operating under a general permit pursuant to this section, upon the filing of a complaint to the secretary, and upon action by the secretary in accordance with the contested case provisions of chapter 1-26, may be removed from the jurisdiction of the general permit and required to obtain an individual permit. Any violation of a condition of a general permit issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1991, ch 288, § 3; SL 1992, ch 254, § 97; SL 1993, ch 257, § 12; SL 1999, ch 180, § 1; SL 2021, ch 161, § 2.
34A-2-113. Procedure for issuance, suspension, revocation and renewal of permits--Hearing--Uncontested recommendation.
The board, by rules adopted in compliance with chapter 1-26, shall provide for the issuance, suspension, revocation and renewal of any permits required under this chapter. Procedures shall provide for a recommendation on such permit by the secretary with an opportunity for a contested case hearing upon protest by the applicant or any person. If the recommendation of the secretary is not contested, that recommendation shall become a final determination on the application. If an uncontested recommendation is for approval or conditional approval of the application, the permit shall be issued by the secretary consistent with his recommendation.
Source: SL 1991, ch 288, § 10; SL 1993, ch 257, § 11.
34A-2-114. Administration of national pollutant discharge elimination system permit program for pretreatment surface water discharge systems--Fee.
In order to enhance economic development, provide improved coordination between governmental agencies, and safeguard the public health, safety, welfare, and the environment of this state through a customer service approach, the department is delegated authority to administer the national pollutant discharge elimination system permit program for all direct and indirect pretreatment surface water discharge systems as provided in section 402 of the Federal Water Pollution Control Act as amended to January 1, 2011. A reasonable fee upon these systems shall be imposed, as provided in §§ 34A-2-117 to 34A-2-120, inclusive, in order to defray the department's costs of administering this program.
Source: SL 1992, ch 254, § 51; SL 2011, ch 165, § 64.
34A-2-115. Sewage sludge, toxic pollutants, and significant industrial user defined.
For purposes of administering the provisions of this chapter, the term, sewage sludge, means any solid, semisolid, or liquid residue removed during the treatment of municipal waste water or domestic sewage. Sewage sludge includes solids removed during primary, secondary, or advanced waste water treatment, scum, septage, portable toilet pumpings, and sewage sludge products. Sewage sludge does not include grit, screenings, or ash generated during the incineration of sewage sludge.
For purposes of administering the provisions of this chapter, the term, toxic pollutants, means any pollutant listed as toxic under section 307(a) of the Federal Water Pollution Control Act as amended to January 1, 2011, or, in the case of "sludge use or disposal practices," any pollutant identified in regulations implementing section 405(d) of the Federal Water Pollution Control Act as amended to January 1, 2011.
For purposes of administering the provisions of this chapter, the term, significant industrial user, means any discharger subject to categorical pretreatment standards and any other industrial user that discharges an average of twenty-five thousand gallons per day or more of process wastewater, excluding sanitary, noncontact cooling and boiler blowdown wastewaters, to the publicly owned treatment works or that contributes a process wastestream which makes up more than five percent of the average dry weather hydraulic or organic capacity of the publicly owned treatment works treatment plant; or one that is designated as such by the secretary on the basis that the industrial user has a reasonable chance of adversely affecting the publicly owned treatment works operation or violating a pretreatment standard or requirement.
Source: SL 1992, ch 254, § 52; SL 2011, ch 165, § 65.
34A-2-116. Development of pretreatment programs for publicly owned treatment works--Assumption of local responsibilities by secretary on request.
A pretreatment program shall be developed for any publicly owned treatment works or combination of publicly owned treatment works operated by the same authority as required by section 307 of the Federal Water Pollution Control Act as amended to January 1, 2011. The owner of any publicly owned treatment works that is required to develop a program may request the secretary to assume local pretreatment responsibilities for that publicly owned treatment works.
Source: SL 1992, ch 254, § 54; SL 2011, ch 165, § 66.
34A-2-117. Annual fee on facilities permitted under the national pollutant discharge elimination system.
There is hereby imposed an annual fee on each facility permitted under the national pollutant discharge elimination system program provisions of section 402 of the Federal Water Pollution Control Act, 33 U.S. C. 1342, as amended to January 1, 2018. The fee shall be assessed as provided in §§ 34A-2-118 to 34A-2-120, inclusive.
Source: SL 1992, ch 254, § 55; SL 2011, ch 165, § 67; SL 2018, ch 212, § 1.
34A-2-118. Publicly-owned treatment works fee schedule.
For publicly-owned treatment works including municipalities, housing subdivisions, trailer parks, and sanitary districts owned by the state or a political subdivision of the state; privately-owned treatment works including housing subdivisions and trailer parks that treat primarily domestic household wastewater; and Ellsworth Development Authority, the fee imposed in § 34A-2-117 shall be based upon the last preceding federal census data for each municipality and the population served by a nonmunicipality or the Ellsworth Development Authority, and the fee table below:
Population Range |
Fee ($) |
25 to 50 |
37 |
51 to 100 |
75 |
101 to 200 |
150 |
201 to 300 |
250 |
301 to 400 |
350 |
401 to 500 |
450 |
501 to 600 |
550 |
601 to 700 |
650 |
701 to 800 |
750 |
801 to 900 |
850 |
901 to 1,000 |
950 |
1,001 to 2,000 |
1,500 |
2,001 to 3,000 |
2,500 |
3,001 to 4,000 |
3,500 |
4,001 to 5,000 |
4,500 |
5,001 to 6,000 |
5,500 |
6,001 to 7,000 |
6,500 |
7,001 to 8,000 |
7,500 |
8,001 to 9,000 |
8,500 |
9,001 to 10,000 |
9,500 |
10,001 to 11,000 |
10,500 |
11,001 to 12,000 |
11,500 |
12,001 to 13,000 |
12,500 |
13,001 to 14,000 |
13,500 |
14,001 to 15,000 |
14,500 |
15,001 to 16,000 |
15,500 |
16,001 to 17,000 |
16,500 |
17,001 to 18,000 |
17,500 |
18,001 to 19,000 |
18,500 |
19,001 to 20,000 |
19,500 |
20,001 to 30,000 |
25,000 |
30,001 to 40,000 |
35,000 |
40,001 to 50,000 |
45,000 |
50,001 to 60,000 |
55,000 |
60,001 to 70,000 |
65,000 |
70,001 to 80,000 |
75,000 |
80,001 to 90,000 |
85,000 |
90,001 to 100,000 |
95,000 |
100,001 or more |
125,000 |
Source: SL 1992, ch 254, § 56; SL 2018, ch 212, § 2.
34A-2-119. Industrial and governmental treatment works fee schedule.
For industrial and governmental treatment works with significant water quality loadings, the fee imposed in § 34A-2-117 is as follows:
(1) Meat products processing as defined by 40 CFR 432 as amended to January 1, 2011:
(a) Process water (0.50 mgd or greater)--$30,000 per year;
(b) Process water (0.25 mgd or greater and less than 0.50 mgd)--$10,000 per year;
(c) Process water (less than 0.25 mgd)--$600 per year; and
(d) Noncontact cooling water--$600 per year;
(2) Corn wet milling as defined by 40 CFR 406 Subpart A as amended to January 1, 2011:
(a) Process water (0.50 mgd or greater)--$30,000 per year;
(b) Process water (0.25 mgd or greater and less than 0.50 mgd)--$10,000 per year;
(c) Process water (less than 0.25 mgd)--$600 per year; and
(d) Noncontact water--$600 per year;
(3) Ore mining and dressing as defined by 40 CFR 440 as amended to January 1, 2011:
(a) Large scale gold and silver mines:
(i) Process water--$30,000 per year; and
(ii) Mine drainage water--$5,000 per year; and
(b) Gold placer mining process water--$5,000 per year;
(4) Mineral mining and processing as defined by 40 CFR 436 as amended to January 1, 2011:
(a) Dimension stone--$600 per year;
(b) Crushed stone--$600 per year;
(c) Sand and Gravel--$600 per year;
(d) Mineral pigments--$600 per year; and
(e) Small scale mines--$600 per year;
(5) Federal treatment works, excluding Ellsworth Air Force Base--$600 per year;
(6) Steam electric power generating as defined by 40 CFR 423 as amended to January 1, 2011:
(a) 0.50 mgd or greater--$17,500 per year;
(b) Less than 0.50 mgd--$6,250 per year; and
(c) Noncontact cooling water--$600 per year; and
(7) Electrical transformer reclamation--$5,000 per year.
The secretary pursuant to the procedures contained in chapter 1-26 may establish the fee for any industrial or governmental treatment works with significant water quality loadings or that discharges toxic pollutants and is not included in the categories above, not to exceed thirty thousand dollars per year.
Source: SL 1992, ch 254, § 57; SL 2011, ch 165, § 68.
34A-2-119.1. Annual stormwater fees on construction and industrial sites.
There is hereby imposed an annual stormwater fee on each construction and industrial site that is required to operate under a general water pollution control permit issued under chapter 34A-2. The annual fee imposed in § 34A-2-117 is as follows:
(1) The fee payable by the Department of Transportation is twenty-five thousand dollars per year. The fee accrues on August first of each year and is due on August thirty-first;
(2) The fee for a construction site that is required to operate under a general water pollution control permit for stormwater discharges associated with construction activities as defined under 40 CFR Part 126 as amended to January 1, 2018, and issued under chapter 34A-2, other than any site owned by the Department of Transportation, is based on the number of acres disturbed for the entire construction project and the fee table below:
Disturbed Area (Acres) |
Fee ($) |
Less than 5 |
100 |
5 to less than 40 |
250 |
40 to less than 80 |
500 |
80 or more |
750 |
The fee is payable by the owner of the site. For any construction site permitted before July 1, 2018, the first annual stormwater fee payment is due on January 31, 2019. Any future annual fee accrues on January first of each year and is due on January thirty-first until the permit coverage is terminated. For any construction site permitted after June 30, 2018, the first annual stormwater fee payment is due when the owner submits the notice of intent to be covered under the general permit for stormwater discharges associated with construction activity. For any permit that continues beyond one year, the annual stormwater fee accrues on the anniversary of the notice of intent submission and is due thirty days later; and
(3) The secretary may promulgate rules, pursuant to chapter 1-26, to establish an annual tiered fee for each industrial site that is required to operate under a general water pollution control permit for stormwater discharges associated with industrial activities as defined under 40 CFR Part 126 as amended to January 1, 2018, and issued under chapter 34A-2. The tiered fee structure shall equitably assess an annual fee to cover the reasonable costs of developing and administering the stormwater permitting requirements for industrial activities that include:
(a) Preparing regulations and general stormwater permits for applicable industrial activities;
(b) Reviewing and acting on applications for an industrial stormwater permit or permit revision;
(c) Implementing the industrial stormwater permits and inspecting permitted facilities, to include enforcing the terms and conditions of the permits if needed; and
(d) Providing training, technical support, and customer services to permitted entities to include developing on-line functions.
The annual fee is in addition to any other fee or tax levied by law. The fee imposed by this section shall be remitted to the state along with any form as may be prescribed by the state. The fees shall be deposited in the surface water discharge and pretreatment permit administrative subfund established in § 34A-2-121.
Source: SL 2018, ch 212, § 3.
34A-2-120. Fee schedule for other entities.
For the entities listed below, the fee imposed in § 34A-2-117 is as follows:
(1) Other industrial and governmental treatment works not including treatment systems that will be assessed a fee based upon the population categories in § 34A-2-118 or the industrial and governmental systems assessed a fee in § 34A-2-119--$600 per facility per year;
(2) Treatment works with permits that allow no discharge--$50 per facility per year;
(3) Pretreatment industrial-user permits issued to any significant industrial user which is discharging to a publicly-owned treatment works--$600 per facility per year; and
(4) Publicly-owned treatment facilities or a combination of publicly-owned treatment facilities operated by the same authority which request that the state administer their local pretreatment program--$35,000 per authority per year.
In addition to the annual fee for pretreatment industrial-user permits, the department may require payment from the permittee for the cost for all analytical testing. This charge may not exceed one thousand six hundred dollars per process line annually.
The fees imposed by §§ 34A-2-117 to 34A-2-119, inclusive, and this section are in addition to all other fees and taxes levied by law.
Source: SL 1992, ch 254, § 58.
34A-2-121. Establishment of surface water discharge and pretreatment administrative subfund--Source of funds--Administration--Expenditures--Unexpended funds.
There is hereby established in the environmental fee fund established in § 1-41-23, the surface water discharge and pretreatment permit administrative subfund. This subfund shall consist of moneys from public and private sources including legislative appropriations, federal grants, gifts, and fees received pursuant to §§ 34A-2-117 to 34A-2-120, inclusive. The subfund shall be maintained separately and be administered by the department in order to defray the expenses of all activities associated with administering the surface water discharge and pretreatment industrial user permit programs. Expenditures from the subfund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the subfund until appropriated by the Legislature.
Source: SL 1992, ch 254, § 59; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2-122. Owner or operator of surface water discharge or pretreatment system to pay annual fees--Application fee--Dates due.
The obligation to pay the annual fee imposed by §§ 34A-2-117 to 34A-2-120, inclusive, is on the owner or operator of a surface water discharge or pretreatment system and accrues on July first, for all nonpublicly-owned facilities. The fee is due and payable by July thirty-first and shall be remitted to the Department of Agriculture and Natural Resources along with the forms prescribed by the secretary in rules promulgated pursuant to chapter 1-26.
The obligation to pay the annual fee imposed by §§ 34A-2-117 to 34A-2-120, inclusive, is on the owner or operator of a surface water discharge or pretreatment system and accrues on January first for all publicly-owned facilities. The fee is due and payable by January thirty-first and shall be remitted to the Department of Agriculture and Natural Resources along with the forms prescribed by the secretary in rules promulgated pursuant to chapter 1-26.
The obligation to pay the application fee imposed by §§ 34A-2-117 to 34A-2-120, inclusive, is on the owner or operator of a facility requesting either coverage under a general permit or water quality certification under section 401 of the Federal Water Pollution Control Act as amended to January 1, 2011. The application fee for such water quality certification does not apply to treatment works already required to submit a fee under other provisions of §§ 34A-2-117 to 34A-2-120, inclusive. The fee is due and payable and shall be remitted to the Department of Agriculture and Natural Resources along with the application forms prescribed by the secretary in rules promulgated pursuant to chapter 1-26.
Source: SL 1992, ch 254, § 60; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2011, ch 165, § 69; SL 2019, ch 158, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
34A-2-123. Promulgation of rules on disposal of sewage sludge.
The board shall promulgate rules pursuant to chapter 1-26 to establish requirements for proper disposal of sewage sludge.
Source: SL 1992, ch 254, § 90.
34A-2-124. General permit for category of water pollution control--Effective period--Modification, suspension, or revocation--Violation.
After public notice in at least three newspapers of general circulation in this state and notice to all municipalities, counties, and tribal governments and opportunity for public hearing, the board may issue a general permit for a category of water pollution control. A general permit issued by the board may be subject to such terms and conditions for installation, establishment, modification, operation, or abandonment of a category of water pollution control as the board finds reasonably necessary to adequately protect the public health, safety, welfare, and the environment of this state. Water pollution control activities conducted in conformity with a general permit do not require a permit issued by the secretary under § 34A-2-27.
A general permit shall remain in effect for a period of five years from the date of issuance or until suspended, revoked, or modified by the board. A general permit may be modified after public notice and opportunity for public hearing. A general permit may be suspended or revoked after publication of notice and order of suspension and revocation in at least three newspapers of general circulation in this state. If an affected facility or interested party wishes to contest the order, a request for hearing shall be filed with the department within twenty days. A hearing on the matter shall be held as soon thereafter as practicable. Notice of hearing shall be published in at least three newspapers of general circulation in this state. Any facility operating under a general permit pursuant to this section, upon the filing of a complaint to the board, and upon action by the board in accordance with the contested case provisions of chapter 1-26, may be removed from the jurisdiction of the general permit and required to obtain an individual permit. Any violation of a condition of a general permit issued pursuant to this section is subject to § 34A-2-75.
Source: SL 1993, ch 257, § 13; SL 1999, ch 180, § 2.
34A-2-125. Fee on certain concentrated animal feeding operations--Subfund created.
In addition to any other tax or fee levied by law, and notwithstanding the provisions of § 34A-2-117, there is hereby imposed an annual fee on all concentrated animal feeding operations that are required to operate under a general or individual water pollution control permit issued under chapter 34A-2 or required to obtain approval of plans and specifications submitted after July 1, 1997, pursuant to § 34A-2-27. The fee is two hundred fifty dollars for operations with two thousand or more animal units, one hundred seventy-five dollars for operations with one thousand to one thousand nine hundred ninety-nine animal units, and one hundred dollars for operations with less than one thousand animal units. The obligation to pay the fee is on the person filing the application for the water pollution control permit or the person required to obtain plans and specifications approval and accrues on July first of each year. By August first of each year, the Department of Agriculture and Natural Resources shall submit a billing to each person obligated to pay the fee. The fee is due and payable by September thirtieth and shall be remitted to the Department of Agriculture and Natural Resources.
There is hereby established in the environment and natural resources fee fund established in § 1-41-23 the concentrated animal feeding operation administrative subfund. The subfund consists of moneys from public and private sources including legislative appropriations, federal grants, gifts, and fees received pursuant to this section. The subfund shall be maintained separately and be administered by the Department of Agriculture and Natural Resources in order to defray the expenses associated with administering the concentrated animal feeding operation program. Expenditures from the subfund shall be appropriated through the normal budget process. Unexpended funds and interest shall remain in the subfund until appropriated by the Legislature.
Source: SL 1997, ch 209, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2019, ch 158, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), §§ 14, 53, eff. Apr. 19, 2021.
34A-2-126. Administrative rules on underground injection control Class III wells and in situ leach mining tolled.
The legal force and effect of the underground injection control Class III rules promulgated under subdivision 34A-2-93(15) are tolled until the department obtains primary enforcement authority for underground injection control Class III wells from the United States Environmental Protection Agency. The in situ leach mining rules promulgated under subdivision 45-6B-81(10) as they relate to uranium are tolled until the department obtains agreement state status from the United States Nuclear Regulatory Commission.
Source: SL 2011, ch 167, § 1.
