CHAPTER 38-8A
SOIL EROSION AND SEDIMENT DAMAGE CONTROL
38-8A-1 Definition of terms.
38-8A-2 "Land-disturbing activity" defined.
38-8A-3 Commission guidelines for erosion and sediment control--Citizen participation.
38-8A-4 Content of guidelines.
38-8A-5 Information and standards used as basis of guidelines.
38-8A-6 District standards for erosion and sediment control--Local government consulted--Time--Fragile land designation.
38-8A-7 38-8A-7. Repealed by SL 1997, ch 226, § 3
38-8A-8 Hearing on proposed standards or revisions--Publication of notice.
38-8A-9 Transmittal of proposed standards to commission for review.
38-8A-10 Review of standards by commission--Recommendations as to changes.
38-8A-11 Adoption of conservation standards by districts--Cooperation with other local units.
38-8A-12 Governing board resolution or voter petition for revision of conservation standards.
38-8A-12.1 Filing of petition--Submission of standards to election unless supervisors approve revision.
38-8A-12.2 Election procedures.
38-8A-13 District standards to be met by activities on publicly owned lands.
38-8A-14 Enforcement of standards under contract with public agency.
38-8A-15 Issuance of permits by commission or districts prohibited.
38-8A-16 Permit-issuing authorities to require compliance with district conservation standards.
38-8A-17 Land-disturbing activity plans, applications, and reports not required if standards not violated--Plan required for conversion of fragile land.
38-8A-18 Violation of adopted standards by land-disturbing activities--Control plan required--District approval--Implementation of plan.
38-8A-18.1 Noncompliance--Penalties.
38-8A-19 Variances to allow additional time for compliance.
38-8A-20 Petition to allege violation of chapter--Investigation and action by petitioned agency.
38-8A-21 Injunctive or other relief to enforce chapter.
38-8A-22 Dust blowing and soil erosion--Owner or operator to prevent.
38-8A-23 Blowing soil--Investigation and order for prevention by conservation district board.
38-8A-24 Emergency orders--Issuance--Posting.
38-8A-25 Preventive treatment--Grounds for performance by conservation district board.
38-8A-26 Assessment against land treated by board--Promulgation of rules.
38-8A-27 Disposition of assessment collections--Collection fee prohibited.
38-8A-28 Cooperation with federal, state, and local agencies to prevent erosion.
38-8A-29 Annual report of violations.
38-8A-1. Definition of terms.
Terms as used in this chapter mean:
(1) "Commission," the State Conservation Commission established by § 38-7-3;
(2) "Conservation standards" or "standards," soil loss tolerance limits as developed pursuant to this chapter;
(3) "Districts," conservation districts established pursuant to chapter 38-8;
(4) "Person," a person as that term is defined by § 2-14-2 and also any public agency or political subdivision of this state, any interstate body, or any other legal entity;
(5) "Guidelines," recommendations of the commission to the conservation districts not possessing the force or effect of rules or statute;
(6) "Permit-issuing authority," a municipality or other political subdivision normally responsible for granting or issuing zoning, subdivision, building, or drainage permits;
(7) "Silviculture," the science and art of managing forest resources for the timber, protection, recreation, wildlife, water, and aesthetic purposes.
Source: SL 1976, ch 242, § 1; SL 1997, ch 226, § 1.
38-8A-2. "Land-disturbing activity" defined.
The term, land-disturbing activity, as used in this chapter, means any clearing, tilling, grazing, grading, excavating, transporting, and filling of land, and the implementation of silviculture activities resulting in soil erosion from water or wind and the movement of sediments into any and all waters, public or private, on the surface of the ground, which are contained within, flow through or border lands in the state; or onto lands in the state. Land disturbing activities specifically regulated by other state agencies and that are subject to regulation under chapter 45-6B, chapter 34A-6, or chapter 34A-13, or which otherwise require plans for soil erosion and sediment damage control are exempt from the provisions of this chapter.
Source: SL 1976, ch 242, § 1 (4); SL 1997, ch 226, § 2.
38-8A-3. Commission guidelines for erosion and sediment control--Citizen participation.
The commission shall develop comprehensive state erosion and sediment control guidelines. These guidelines are to be developed with full opportunity for citizen participation in accordance with chapter 1-26.
Source: SL 1976, ch 242, § 2; SL 2024, ch 167, § 1.
38-8A-4. Content of guidelines.
The guidelines developed by the State Conservation Commission shall consist of recommended soil loss limits and suggested conservation practices.
Source: SL 1976, ch 242, § 4.
38-8A-5. Information and standards used as basis of guidelines.
The guidelines for carrying out the program shall be based upon the following:
(1) Relevant physical and developmental information concerning the watersheds and drainage basins of the state, including, but not limited to, data relating to land use, soils, hydrology, geology, size of land area being disturbed, proximate water bodies and their characteristics, transportation, and public facilities and services;
(2) Existing surveys of lands and waters as may be deemed appropriate by the State Conservation Commission or required by any applicable law to identify areas, including multijurisdictional and watershed areas, with critical erosion and sediment problems; and
(3) Conservation standards for various types of soils and land uses, which standards shall include criteria, techniques, and methods for the control of erosion and sediment resulting from land-disturbing activities.
Source: SL 1976, ch 242, § 3.
38-8A-6. District standards for erosion and sediment control--Local government consulted--Time--Fragile land designation.
The supervisors of each district in the state, in cooperation and consultation with counties, municipalities, and other affected units of local government shall, within twelve months after the adoption of the state guidelines, develop proposed district conservation standards. These standards may designate, as fragile land, any area of the district that:
(1) Is Class IVe, VI, VII, or VIII, according to the United States Department of Agriculture classification system, as described in Title 430, National Soil Survey Handbook, Part 622 Interpretive Groups, Land Capability Classification, (June 2020); and
(2) Is so erosive as to cause a public hazard when converted to cropland use.
Source: SL 1976, ch 242, § 5; SL 1984, ch 263, § 8; SL 2024, ch 167, § 2.
38-8A-8. Hearing on proposed standards or revisions--Publication of notice.
Before adopting or revising conservation standards, a district shall conduct a public hearing on the proposed standards or revisions. Notice of such hearing shall be published once a week for at least two successive weeks in a newspaper of general circulation in the area affected, giving the time and place, when and where such hearing shall be held, and inviting all interested persons to appear and be heard.
Source: SL 1976, ch 242, § 10.
38-8A-9. Transmittal of proposed standards to commission for review.
Upon the development of proposed standards as provided by § 38-8A-6, such standards shall be forwarded to the State Conservation Commission for review and comment.
Source: SL 1937, ch 19, § 7; SDC 1939, § 4.1509; SL 1947, ch 12; SL 1953, ch 7, § 2; SDC Supp 1960, § 4.1509 (2); SDCL, § 38-8-88; SL 1968, ch 1, § 7; SL 1976, ch 242, § 6.
38-8A-10. Review of standards by commission--Recommendations as to changes.
The State Conservation Commission shall, within six months of receipt of a district's proposed standards, review and recommend any changes the commission deems necessary to the success of the district program.
Source: SL 1976, ch 242, § 7.
38-8A-11. Adoption of conservation standards by districts--Cooperation with other local units.
To carry out its program, each district, in cooperation with other local units of government, shall, within three months after the guidelines have been reviewed by the commission, adopt conservation standards consistent with the control of erosion and sediment resulting from land-disturbing activities.
Source: SL 1976, ch 242, § 8.
38-8A-12. Governing board resolution or voter petition for revision of conservation standards.
Revision of the conservation standards, in whole or in part, may be proposed by the conservation district governing board or by a petition signed by the number of voters equal to ten percent of the qualified voters in a district.
Source: SL 1976, ch 242, § 9; SL 1980, ch 269, § 1; SL 1981, ch 283; SL 2019, ch 179, § 3.
38-8A-12.1. Filing of petition--Submission of standards to election unless supervisors approve revision.
A petition pursuant to § 38-8A-12 shall be filed with the conservation district supervisors. The filing of a petition shall require the submission of the named conservation district standards to an election of the qualified voters of the district. However, if the supervisors approve the proposed revision before the election, the election shall not proceed.
Source: SL 1980, ch 269, § 2.
38-8A-12.2. Election procedures.
An election under the provisions of §§ 38-8A-12 and 38-8A-12.1 shall be conducted at the next general election within the counties comprising the territory of the conservation district. Unless otherwise provided for in this chapter, the conduct of any election held under §§ 38-8A-12 and 38-8A-12.1 shall be governed by the general election laws of South Dakota. The results of the election shall be certified to the conservation district by the county commission of each county in which the election is conducted.
Source: SL 1980, ch 269, § 3; SL 1997, ch 226, § 4.
38-8A-13. District standards to be met by activities on publicly owned lands.
If proposed land-disturbing activities are to be performed on state lands or by or on behalf of a state or local unit of government, plans for erosion and sediment control shall be in accordance with standards for erosion and sediment control established pursuant to this chapter.
Source: SL 1937, ch 19, § 13; SDC 1939, § 4.1515; SDCL, § 38-8-89; SL 1976, ch 242, § 13.
38-8A-14. Enforcement of standards under contract with public agency.
Land-disturbing activities, carried out under contract with an agency of the state or with any of its local political subdivisions, shall be subject to the enforcement action of such agency or subdivision.
Source: SL 1976, ch 242, § 16.
38-8A-15. Issuance of permits by commission or districts prohibited.
Neither the State Conservation Commission nor the conservation districts may issue permits under the provisions of this chapter.
Source: SL 1976, ch 242, § 12.
38-8A-16. Permit-issuing authorities to require compliance with district conservation standards.
After formal adoption of district conservation standards, each permit-issuing authority lying within the territorial limits of the conservation district, shall include provisions in its permit procedure to ensure that any proposed action relating to a permit is in compliance with the district conservation standards.
Source: SL 1976, ch 242, § 11.
38-8A-17. Land-disturbing activity plans, applications, and reports not required if standards not violated--Plan required for conversion of fragile land.
No person engaging in land-disturbing activities is required to prepare a plan, file an application or otherwise report these activities to the conservation district, except as provided for in § 38-8A-18. The district may require a conservation plan preceding the conversion to cropland of any land which has been designated fragile land as provided by § 38-8A-6.
Source: SL 1976, ch 242, § 14; SL 1984, ch 263, § 9; SL 1997, ch 226, § 5.
38-8A-18. Violation of adopted standards by land-disturbing activities--Control plan required--District approval--Implementation of plan.
Upon the determination by the conservation district, pursuant to § 38-8A-20, that a land-disturbing activity is violating adopted standards, the land disturber shall be required to prepare an erosion and sediment control plan within six months, and have the plan approved by the local conservation district. Upon approval of the plan by the conservation district, the land disturber shall be allowed six months to implement the plan.
Source: SL 1976, ch 242, § 15; SL 1997, ch 226, § 6.
38-8A-18.1. Noncompliance--Penalties.
Any person found to have engaged in land disturbing activities pursuant to § 38-8A-20 who intentionally refuses or fails to comply with the action directed by the petitioned agency, may lose eligibility for financial assistance from any state agency or political subdivision of the state involved in natural resources. If a state agency denies financial assistance to any person pursuant to this section, such denial is appealable pursuant to chapter 1-26.
Source: SL 1997, ch 227, § 1.
38-8A-19. Variances to allow additional time for compliance.
The conservation districts or permit-issuing authority may, in carrying out their responsibilities under this chapter, grant a variance to any land disturber to allow additional time in meeting the requirements of this chapter.
Source: SL 1976, ch 242, § 19.
38-8A-20. Petition to allege violation of chapter--Investigation and action by petitioned agency.
Any person who is adversely affected by land-disturbing activities may file a petition with the conservation districts or with the permit-issuing authority having jurisdiction thereof, alleging a violation of this chapter. The petitioned agency shall investigate and determine the validity of the petition. The petitioned agency shall, within two months after receipt of the petition, take appropriate action and advise the petitioner of its disposition of his petition.
Source: SL 1976, ch 242, § 17.
38-8A-21. Injunctive or other relief to enforce chapter.
Either a permit-issuing authority, or a district may, upon petition or its own volition, in the enforcement of its orders, commence an action in circuit court for an injunction or other appropriate relief to enforce the provisions of this chapter.
Source: SL 1937, ch 19, § 10; SDC 1939, § 4.1512; SDCL, § 38-8-84; SL 1976, ch 242, § 18.
38-8A-22. Dust blowing and soil erosion--Owner or operator to prevent.
The owner or operator of real property in this state shall prevent dust blowing and soil erosion, as nearly as can be done, by practices which will prevent or minimize blowing dust and erosion of the soil. If dust blowing is evident, such practices shall include, to the extent practicable, leaving stubble residue on top of the soil.
Source: SL 1984, ch 263, § 1.
38-8A-23. Blowing soil--Investigation and order for prevention by conservation district board.
If the board of supervisors of any district is advised, in a written or electronic form, that soil is blowing from any land, or if any land in the county, roads, or public property, is being damaged, as the result of blowing soil, the board must inspect the land. If the board finds soil is blowing from the land, in excess of local conservation district standards, to the point that it is injurious to other land, roads, or public property, the board must determine what can be done to prevent or lessen the blowing of soil from the land. If the board finds, after consulting with the commission, if appropriate, that the blowing can be prevented or lessened by treatment of the soil, the board must issue an order to the owner of record, and to the operator, if known to the board, stating the treatment required, and the date the treatment is to be started and completed.
Source: SL 1984, ch 263, § 2; SL 2024, ch 167, § 3.
38-8A-24. Emergency orders--Issuance--Posting.
Upon a finding by the board of supervisors that an emergency exists, the board of supervisors shall notify the county commissioners who shall issue an order to each of the persons at the address shown on the records of the county director of equalization. The order shall be issued by registered mail or as provided by the South Dakota Rules of Civil Procedure for the service of summons. The order shall also be posted in a public place in the county courthouse in the county in which the land is located.
Source: SL 1984, ch 263, § 3.
38-8A-25. Preventive treatment--Grounds for performance by conservation district board.
The board may perform the treatment ordered pursuant to § 38-8A-24 if the person named in the order fails to commence treatment within three days from the date of mailing, posting, or serving of notice, or at a later time specified by the order. The board may also perform the treatment if:
(1) The treatment is not performed in the manner and to the extent specified;
(2) Prior to the expiration date fixed in the order, the person named in the order advises the board he cannot or does not intend to accomplish the work.
Source: SL 1984, ch 263, § 4.
38-8A-26. Assessment against land treated by board--Promulgation of rules.
Upon the completion of the treatment performed pursuant to § 38-8A-25, the board of supervisors shall determine the land so benefited and notify the board of county commissioners, who shall assess against that land the cost of the treatment. The assessment may be made only against that portion of any tract of land which is the source of the wind or soil erosion.
Except as otherwise provided in this section, the assessment may not exceed the actual cost of the treatment or thirty-seven dollars per acre, whichever is less.
Beginning January 1, 2021, the commission may, by rules promulgated in accordance with chapter 1-26, annually increase the maximum assessment per acre authorized by this section by the lesser of:
(1) Three percent; or
(2) The rate of inflation for the preceding calendar year, as established by the United States Department of Labor Bureau of Labor Statistics.
The resolution of assessment shall be recorded in the minutes of the board of county commissioners, the original delivered by the clerk of the board to the county director of equalization, and a copy sent by registered mail to the landowner at the address shown on the records of the county director of equalization and to the operator.
Source: SL 1984, ch 263, § 5; SL 2020, ch 177, § 1.
38-8A-27. Disposition of assessment collections--Collection fee prohibited.
All amounts collected shall be transmitted to the county treasurer, who shall credit the money to the local conservation district. The county treasurer may not collect any fees for the collection of the assessments.
Source: SL 1984, ch 263, § 6.
38-8A-28. Cooperation with federal, state, and local agencies to prevent erosion.
The board of supervisors of any conservation district where land is being eroded may enter into any agreement with the federal government or any agency thereof, the State of South Dakota or any agency thereof, or any other conservation district, or other county or counties, for cooperation in preventing or attempting to prevent soil erosion by wind.
Source: SL 1984, ch 263, § 7.
38-8A-29. Annual report of violations.
The conservation districts shall file with the Conservation Commission an itemized annual report noting the number and nature of violations of this chapter. The report shall be filed within sixty days after the end of the conservation district's fiscal year.
Source: SL 1997, ch 226, § 7.
