TITLE 46A
WATER MANAGEMENT
Chapter
01 State Water Resources Management
02 South Dakota Conservancy District
03 Subdistricts Of South Dakota Conservancy District [Repealed]
03A Water Development Districts--Establishment
03B Water Development Districts--Board Of Directors
03C Water Development Districts--Dissolution
03D Water Development Districts--Powers And Duties
03E Water Development Districts--Tax Levies And Special Assessments
04 Organization, Boundaries And Dissolution Of Irrigation Districts
05 Irrigation District Projects And Operations
06 Irrigation District Contracts And Financing
07 Irrigation District Assessments And Levies
07A Cendak Irrigation District [Repealed]
08 Water Users' Associations
09 Water User Districts
10 Intrastate Drainage Projects [Repealed]
10A County Drainage
10B Drainage Basin Utility Districts
11 Drainage Assessments And Bonds
11A Mediation Of Drainage Disputes
12 Trustee Management Of Drainage Districts [Repealed]
13 Interstate Drainage Districts
14 Watershed Districts
15 Missouri River Development
16 Minnesota Boundary Waters
17 Belle Fourche River Compact
18 Water Project Districts
19 River Basin Natural Resource Districts [Repealed]
CHAPTER 46A-1
STATE WATER RESOURCES MANAGEMENT
46A-1-1 Legislative findings and policy.
46A-1-2 Legislative purpose for state water plan--Composition of plan.
46A-1-2.1 Legislative findings--Water resources projects.
46A-1-2.2 46A-1-2.2. Repealed by SL 1994, ch 346, § 14
46A-1-2.3 Previous designations of projects superseded.
46A-1-2.10 46A-1-2.10. Executed
46A-1-2.11 46A-1-2.11. Executed
46A-1-2.12 46A-1-2.12. Executed
46A-1-2.13 46A-1-2.13. Executed
46A-1-2.14 46A-1-2.14. Executed
46A-1-3 Definition of terms.
46A-1-4 Water rights not affected by chapter.
46A-1-5 46A-1-5. Repealed by SL 2011, ch 165, § 286.
46A-1-7 Establishment of state policy on water facilities--Recommended comments on federal policy.
46A-1-8 Resolution of conflicting interests.
46A-1-9 46A-1-9. Repealed by SL 2015, ch 192, § 3.
46A-1-10 Recommendations to Governor and Legislature as to facilities needed in water resources management system.
46A-1-11 Estimates of costs and revenues from proposed water facilities--Requests for legislative authorization of construction.
46A-1-12 Allocation of benefits and costs among governmental and private interests--Determination of priorities.
46A-1-13 Presentation of cost data to Governor and Legislature--Requests for financing authorization.
46A-1-13.1 46A-1-13.1. Repealed by SL 2013, ch 166, § 99.
46A-1-13.2 Authorization of Belle Fourche irrigation rehabilitation project--Financial assistance limited.
46A-1-13.3 46A-1-13.3. Repealed by SL 2013, ch 166, § 113.
46A-1-13.4 Authorization of Mni Wiconi rural system--Loans--Accrual of interest.
46A-1-13.5 46A-1-13.5. Repealed by SL 2013, ch 166, § 114.
46A-1-13.6 Authorization of Lake Andes-Wagner/Marty II Irrigation Project--Research demonstration project required--Loans authorized--Indian lands exempted from payments.
46A-1-13.7 Sioux Falls Flood Control Project authorized.
46A-1-13.8 Black Hills Water Management Project and Black Hills Hydrology Study authorized.
46A-1-13.9 46A-1-13.9. Repealed by SL 2013, ch 166, § 115.
46A-1-13.10 Lewis and Clark Rural Water System authorized.
46A-1-13.11 Southern Black Hills Water System authorized.
46A-1-13.12 Belle Fourche irrigation upgrade project authorized.
46A-1-14 Annual report of activities of board--Contents.
46A-1-15 Consideration of wild, scenic, and recreational rivers.
46A-1-16 46A-1-16. Repealed by SL 2015, ch 192, § 4.
46A-1-17 Borrowing on interim notes--Expenses paid and loans made from proceeds--Issuance of notes.
46A-1-18 Loan of interim note proceeds to public entity or person for project that state or federal agency is committed to finance--Notes issued prior to financing arrangement.
46A-1-19 Interim financing--Proper authority required.
46A-1-20 Interim financing--Independent review of feasibility of project.
46A-1-21 Interim financing--Proceeds pledged as security--Assignment to district of rights to proceeds.
46A-1-22 Terms of interim notes.
46A-1-23 Security for interim notes.
46A-1-24 Additional covenants and conditions to secure interim notes.
46A-1-25 Registration of interim notes--Interest payment--Redemption prior to maturity.
46A-1-26 Execution and attestation of interim notes--Sale.
46A-1-27 Bond provisions applicable to interim financing.
46A-1-28 Payment of interim notes on issue of revenue bonds.
46A-1-29 Plan for project financing to be submitted to Legislature--Authorization for bond issuance--Amount of bonds.
46A-1-30 Purposes for bond issuance.
46A-1-31 Bond issuance to finance or refinance statewide water plan projects--Bond issuance to purchase or finance loans by United States Department of Agriculture or to fund revolving fund programs under Clean Water Act or Safe Drinking Water Act.
46A-1-32 Terms of bonds.
46A-1-33 Pledge of revenues to secure payment of bonds.
46A-1-33.1 District may contract to manage payment or interest rate risk for bonds.
46A-1-34 46A-1-34, 46A-1-35. Repealed by SL 2006, ch 2, §§ 33, 34.
46A-1-35 46A-1-35. Repealed by SL 2006, ch 2, § 34.
46A-1-36 Covenant to collect revenues sufficient for retirement of bonds.
46A-1-37 Covenant against alienation or encumbrance of projects while bonds outstanding.
46A-1-38 Covenants as to management of project and accounting for funds.
46A-1-39 Trust agreements.
46A-1-40 Additional covenants to secure bonds or make them more marketable.
46A-1-41 State general obligation not to be created.
46A-1-42 Bonds not a state obligation--Payment restricted to revenues.
46A-1-43 Recording not required for bond protection.
46A-1-44 Validity of bonds not dependent upon signing officers remaining in office or regularity of proceedings.
46A-1-45 Sale of bonds--Procedure and price.
46A-1-46 Negotiability of bonds.
46A-1-47 Bonds as legal investments for fiduciaries and financial institutions.
46A-1-48 Bond and note proceeds--Payment into state treasury not required.
46A-1-49 Financing agreements to lend bond proceeds--Board resolution.
46A-1-50 Financing agreements--Provisions to provide for and secure repayment of bonds and loan.
46A-1-51 Financing agreements--Proper authority required.
46A-1-52 Financing agreements--Independent review of feasibility of project.
46A-1-53 Agreement as to custody and disposition of moneys.
46A-1-54 Remedies of bondholders.
46A-1-55 Persons executing district notes or bonds not subject to personal liability.
46A-1-56 Refunding bonds authorized for matured obligations.
46A-1-57 Sale of refunding bonds for matured obligations--Application of proceeds--Cancellation of instruments paid.
46A-1-58 Refunding bonds authorized for unmatured obligations.
46A-1-59 Sale of refunding bonds for unmatured obligations--Use of proceeds.
46A-1-60 Water and environment fund--Establishment--Moneys in fund.
46A-1-60.1 Water pollution control revolving fund program and state drinking water revolving fund program established--Program subfunds created--Deposits into subfunds and use thereof.
46A-1-60.2 Disbursements from and administration of water pollution control revolving fund program and state drinking water revolving fund program--Sections 46A-1-61 to 46A-1-69 inapplicable.
46A-1-60.3 Rules for selection of projects to receive funds from water pollution control revolving fund program and state drinking water revolving fund program and administration of same.
46A-1-60.4 46A-1-60.4, 46A-1-60.5. Executed
46A-1-61 Authorization required for disbursements from fund--Form of appropriation from fund--Limit on grants.
46A-1-62 Disbursements from capital projects fund.
46A-1-63 Energy industry use funds deposit--Deposit of funds recovered through lawsuit or settlement.
46A-1-63.1 Consolidated water facilities construction program--Disbursements.
46A-1-63.2 46A-1-63.2, 46A-1-63.3. Expired
46A-1-64 Limit on loans or grants to projects in water facilities plan--Security for loans.
46A-1-65 Criteria for selection of projects to receive loans or grants--Regulation of loans or grants.
46A-1-66 Interest on loans.
46A-1-67 Term of loans--Capitalization and refinancing of loans for purposes other than construction.
46A-1-67.1 Repayment of loan may be deferred until execution of contract for project construction.
46A-1-68 Loan terms set by Legislature.
46A-1-68.1 Deposit of money received from fund.
46A-1-69 Suspension of annual installment due on loan for irrigation project.
46A-1-70 Financial reporting of projects--Auditing.
46A-1-71 Legislative findings regarding need for program of statewide water development and financing.
46A-1-72 Pipeline or aqueduct construction authorized--Use of water.
46A-1-73 Financing of pipelines or aqueducts--Bonds--Loans.
46A-1-74 46A-1-74. Repealed by SL 2004, ch 274, § 3
46A-1-75 46A-1-75 to 46A-1-77. Repealed by SL 1986, ch 291, §§ 34 to 36
46A-1-78 Moratorium on Oahe project construction as public policy of state--Study of alternate projects--Negotiation of settlement for land losses.
46A-1-79 46A-1-79. Transferred to § 46A-1-63.1
46A-1-80 46A-1-80. Repealed by SL 2006, ch 2, § 36.
46A-1-80.1 Ownership of dredges and money transferred to South Dakota Lakes and Streams Association--Reversion.
46A-1-81 Amount of funds required for dredge maintenance and repair and other expenses.
46A-1-82 Environment and water resources trust fund established--Subfund.
46A-1-82.1 46A-1-82.1. Repealed by SL 1996, ch 47, § 8
46A-1-83 State solid waste management program established.
46A-1-83.1 46A-1-83.1. Repealed by SL 1995, ch 251, § 19A
46A-1-83.2 Expenditure of fees deposited in environment and water resources trust fund--Access to fund--Appropriation.
46A-1-83.3 46A-1-83.3. Executed
46A-1-84 Adoption of rules to award financial assistance to sponsors of solid waste management projects--Purpose and preference of awards.
46A-1-85 46A-1-85, 46A-1-85.1. Repealed by SL 2005, ch 237, §§ 14, 15.
46A-1-87 46A-1-87. Repealed by SL 1997, ch 208, § 2
46A-1-88 Conversion of study loans to grants.
46A-1-89 46A-1-89. Repealed by SL 2005, ch 237, § 16.
46A-1-90 46A-1-90. Repealed by SL 2013, ch 166, § 116.
46A-1-91 Financial assistance for recycling and processing facilities for waste tires.
46A-1-92 Legislative findings and authorization of certain water development projects.
46A-1-93 Priority in administration of funds.
46A-1-94 Perkins County rural water system.
46A-1-95 Clean lakes program, nonpoint source program, water quality monitoring program, and wetland grant program established.
46A-1-96 Special purpose water district loan program established--Funding.
46A-1-97 Board authorized to contract for financial services.
46A-1-98 Confidentiality of trade secrets or commercial or financial information received by board or department.
46A-1-99 Additional financial assistance for solid waste management and recycling facilities.
46A-1-100 Definition of terms.
46A-1-101 State brownfields revitalization and economic development program established--Subfunds created--Deposit and use of money.
46A-1-102 Disbursement and administration of money from subfunds--Rules--Application of provisions.
46A-1-103 Promulgation of rules by board--Content.
46A-1-104 Continuous appropriation of brownfields revitalization and economic development program subfunds--Purpose.
46A-1-105 Establishment of brownfields program by eligible entity.
46A-1-106 Powers of eligible entity establishing brownfields program.
46A-1-1. Legislative findings and policy.
The general health, welfare, and safety of the people of the State of South Dakota are dependent upon the conservation, development, management, and optimum use of all this state's water resources. To achieve this objective it is essential that a coordinated, integrated, multiple use water resource policy be formulated and a plan developed to activate this policy as rapidly as possible. It is in the public interest that these functions be carried out through a coordination of all state agencies and resources.
Source: SL 1972, ch 241, § 2; SL 1981 (2d SS), ch 1, § 17; SDCL Supp, § 46-17A-1; SL 1983, ch 321.
46A-1-2. Legislative purpose for state water plan--Composition of plan.
It is the object of this chapter to provide the means for the planning, funding, and construction of a state water plan. This plan is comprised of the State Water Resources Management System and the State Water Facilities Plan.
Source: SL 1972, ch 241, § 3; SDCL Supp, § 46-17A-2; SL 1983, ch 321, § 2.
46A-1-2.1. Legislative findings--Water resources projects.
The Legislature finds that the following water resources projects are necessary for the general welfare of the people of this state and authorizes the projects, pursuant to § 46A-1-2, to be included in the state water resources management system, to serve as the preferred, priority objectives of the state:
(1) Belle Fourche irrigation upgrade project;
(2) Big Sioux flood control study;
(3) Hydrology and water management studies, to manage and protect state water resources for current and future generations;
(4) Cendak irrigation project;
(5) Dakota Mainstem regional water system study;
(6) Lake Andes-Wagner/Marty II irrigation unit;
(7) Lewis and Clark rural water system;
(8) Sioux Falls flood control project;
(9) Vermillion basin flood control project;
(10) Water Investment in Northern South Dakota project; and
(11) Western Dakota Regional Water System study.
Source: SL 1988, ch 362, § 17; SL 1989, ch 385, § 19; SL 1994, ch 346, § 13; SL 2000, ch 218, § 6; SL 2004, ch 52, § 4, eff. Feb. 25, 2004; SL 2006, ch 227, § 2, eff. Feb. 17, 2006; SL 2008, ch 235, § 7, eff. Feb. 27, 2008; SL 2011, ch 200, § 11, eff. Mar. 15, 2011; SL 2012, ch 221, § 3, eff. Mar. 2, 2012; SL 2015, ch 224, § 1, eff. Mar. 12, 2015; SL 2020, ch 194, § 1, eff. Mar. 27, 2020; SL 2023, ch 149, § 1, eff. Mar. 15, 2023; SL 2024, ch 183, § 1, eff. Feb. 15, 2024; SL 2024, ch 182, § 1.
46A-1-2.3. Previous designations of projects superseded.
Section 46A-1-2.1 serves as the exclusive component of the State Water Resources Management System established pursuant to § 46A-1-2 and supersedes all previous designations of projects not included in § 46A-1-2.1.
Source: SL 1994, ch 346, § 15.
46A-1-3. Definition of terms.
Terms as used in this chapter, unless the context otherwise requires, shall mean:
(1) "Basis point," one hundredth of one percent of interest;
(2) "Board," the Board of Water and Natural Resources created by § 1-41-11;
(3) "District," the South Dakota Conservancy District;
(4) "Facilities" or "state water facilities," all water facilities included or being studied or recommended for inclusion within the comprehensive statewide water plan or state water resources management system;
(5) "Facilities plan" or "state water facilities plan," those parts of the statewide water plan established by the Board of Water and Natural Resources;
(6) "Free flowing," as applied to any river, existing or flowing in a natural condition without impoundment, diversion, straightening, rip-rapping, or other modification of the waterway;
(7) "Fund," the South Dakota water and environment fund;
(8) "Person," a person as that term is defined in subdivision 46A-2-4(6);
(9) "Plan" or "water plan" or "statewide water plan" or "comprehensive statewide water plan," plans developed or to be developed by the South Dakota Conservancy District as provided by this chapter;
(10) "Project," a water resources project as that term is defined in subdivision 46A-2-4(14);
(11) "Public entity," a public entity as that term is defined in subdivision 46A-2-4(7);
(12) "Recreational river areas," those rivers or sections of rivers that are readily accessible by road, that may have some development along their shorelines and that may have undergone some impoundment or diversion in the past, and the public areas adjacent to the rivers or sections of rivers;
(13) "Regulated public water utility," a public entity or person with which the district has entered into a financing arrangement pursuant to § 46A-1-18 or a financing agreement pursuant to § 46A-1-49, with respect to a project;
(14) "River," a flowing body of water or estuary or a section, portion, or tributary thereof, including rivers, streams, creeks, runs, and small lakes, provided that no flowing body of water shall be considered a "wild, scenic, or recreational river" unless it has a sufficient quantity of water to support a year-round game fish population;
(15) "Scenic river areas," those rivers or sections of rivers that are free of impoundments, with shorelines or watersheds still largely primitive but which are accessible in places by roads, and the public use and access areas adjacent to the rivers or sections of rivers;
(16) "System" or "state water resources management system," those parts of the statewide water plan established by the Legislature as a needed objective for water resources management in South Dakota and for which the Legislature may authorize construction and financing in whole or in part;
(17) "Wild river area," those rivers or sections of rivers that are free of impoundments and generally inaccessible except by trail, with watersheds or shorelines essentially primitive and with waters which are unpolluted, and the public use and access areas adjacent to the rivers or sections of rivers.
Source: SL 1972, ch 241, § 5; SL 1976, ch 282, § 2; SL 1979, ch 301, § 2; SL 1981 (2d SS), ch 1, § 6; SDCL Supp, § 46-17A-3; SL 1983, ch 321, § 3; SL 1992, ch 254, § 8; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
46A-1-4. Water rights not affected by chapter.
The enactment of this chapter does not create any right to water or the use of water and does not affect any existing legislation with respect to water or water rights, except as expressly provided in this chapter. Nothing in this chapter affects vested water rights.
Source: SL 1972, ch 241, § 4; SDCL Supp, § 46-17A-57; SL 2011, ch 165, § 285.
46A-1-7. Establishment of state policy on water facilities--Recommended comments on federal policy.
The Board of Water and Natural Resources shall establish the statewide policy on all multi-purpose water facilities and shall maintain readiness to recommend significant factors to the Governor or a designated representative of the Governor concerning official comments on behalf of the State of South Dakota pursuant to any requirements of federal law.
Source: SL 1972, ch 241, § 13; SDCL Supp, § 46-17A-12; SL 2023, ch 3, § 38.
46A-1-8. Resolution of conflicting interests.
The objectives and purposes to be served by the Board of Water and Natural Resources shall be to resolve conflicting special interests of federal, state, and local agencies or entities or private interests in proposed water projects, including federal projects and the designation and preservation of certain rivers or portions thereof as scenic rivers so that the public interest in such project proposals will be protected and enhanced, optimum over-all benefits will accrue to the people of South Dakota, and maximum consideration of all needs and desires in such water projects will be ensured, especially in those involving multiple purposes such as combinations of irrigation, flood control, navigation, electric power, domestic and stock water, municipal and industrial water supplies, lake stabilization, pollution control, water quality enhancement, fish and wildlife, recreation, groundwater recharge, erosion control, or other beneficial purposes and uses.
Source: SL 1972, ch 241, § 14; SDCL Supp, § 46-17A-13.
46A-1-10. Recommendations to Governor and Legislature as to facilities needed in water resources management system.
Upon submission of the statewide water plan to the Governor and the Legislature by the Board of Water and Natural Resources, or prior or subsequent thereto as conditions may warrant, the board shall recommend to the Governor and the Legislature those portions of the statewide water plan, including a list of proposed wild, scenic, or recreational rivers, considered to be necessary for the needs and general welfare of the people of the State of South Dakota with a request that the Legislature establish such recommended water facilities as the State Water Resources Management System, said system to serve as the preferred, priority objectives and guidelines for all efforts to accomplish optimum water resources management in this state. No project in the State Water Resources Management System may also be in the state water facilities plan.
Source: SL 1972, ch 241, § 16; SDCL Supp, § 46-17A-15; SL 1986, ch 291, § 1A.
46A-1-11. Estimates of costs and revenues from proposed water facilities--Requests for legislative authorization of construction.
If the Board of Water and Natural Resources determines that it is necessary to carry out any of the objects and purposes of the water plan, through the construction of a water facility that has been established by the Legislature as a part of the State Water Resources Management System, the board shall, in cooperation with such federal, state, and local agencies or entities or private interests as may be concerned, prepare preliminary cost estimates, estimates of resources, if any, to be contributed from all other sources to aid in the construction, and estimates of the revenues that might be anticipated from the facility from all purposes and functions. The board shall adopt a resolution declaring that the public interest and necessity require the carrying out of these objects and purposes and requesting that the Legislature authorize the construction of this part of the State Water Resources Management System.
Source: SL 1972, ch 241, § 17; SDCL Supp, § 46-17A-16; SL 2011, ch 165, § 287.
46A-1-12. Allocation of benefits and costs among governmental and private interests--Determination of priorities.
The Board of Water and Natural Resources shall make a comprehensive evaluation and allocation of the comparative benefits and costs of all water facilities included in the State Water Resources Management System among and between the various levels of government and private interests in accordance with § 46A-2-3. Its recommendations shall include with respect to each such facility the amount or amounts to be shared by each and every level of beneficial user and may provide that the state's share will be apportioned over a period of years and may be funded by appropriations or as may otherwise be provided. These benefit-cost ratios shall be set forth in detail.
The board shall formulate and determine the priority or priorities of any or all such facilities and the sufficient financing thereof.
Source: SL 1972, ch 241, § 18; SDCL Supp, § 46-17A-17; SL 1986, ch 291, § 1.
46A-1-13. Presentation of cost data to Governor and Legislature--Requests for financing authorization.
The Board of Water and Natural Resources shall present the findings of benefits, costs, cost-sharing, and other pertinent factors to the Governor and the Legislature, and shall request legislative appropriations and other means of financing state government's share of the costs of the water facilities as may be authorized by the Legislature for construction.
Source: SL 1972, ch 241, § 19; SDCL Supp, § 46-17A-18.
46A-1-13.2. Authorization of Belle Fourche irrigation rehabilitation project--Financial assistance limited.
Pursuant to §§ 46A-1-11 to 46A-1-13, inclusive, construction of a fourteen million dollar Belle Fourche Irrigation Rehabilitation Project as generally described in the report entitled "Analysis of Request for Additional Funding Costs and Priority Summary" dated January 1994, is hereby authorized for the purpose of stabilizing crop and forage production in central western South Dakota to offset the effects of drought conditions which naturally devastate South Dakota's economic viability.
The Board of Water and Natural Resources may provide financial assistance in amounts not to exceed four million dollars ($4,000,000), or so much thereof as may be necessary, to the Belle Fourche Irrigation Rehabilitation Project to provide the nonfederal matching requirements for the project authorized pursuant to P.L. 103-434 as amended to January 1, 1995. No disbursements may be made under the loans authorized by this section unless funds are appropriated by the Legislature in conformance with § 46A-1-61.
Source: SL 1995, ch 251, § 24.
46A-1-13.4. Authorization of Mni Wiconi rural system--Loans--Accrual of interest.
Pursuant to §§ 46A-1-11 to 46A-1-13, inclusive, construction of a two hundred sixty-three million two hundred forty-one thousand dollar ($263,241,000) Mni Wiconi Rural Water System as generally described in the report "Mni Wiconi Rural Water Supply Project Final Engineering Report" dated May 21, 1993, is hereby authorized for the purpose of providing safe and adequate municipal, rural, and industrial water supplies as well as promoting benefits to fish and wildlife and the natural environment of South Dakota on the Pine Ridge Indian Reservation, the Rosebud Indian Reservation, the Lower Brule Indian Reservation and in the counties of Stanley, Haakon, Lyman, Jones, Jackson, Mellette, and Pennington.
The Legislature finds that it is in the best interest of the Mni Wiconi Rural Water System to provide the nonfederal matching requirements as enumerated in P.L. 100-516 as amended on January 1, 1995, through the State Water Resources Management System revolving loan program. Therefore, all grants authorized for expenditure out of the South Dakota Water and Environment for the Mni Wiconi Rural Water System since January 1, 1989, shall convert to loans.
The Board of Water and Natural Resources may provide loans under the State Water Resources Management System revolving loan program in amounts not to exceed a total of twelve million nine hundred one thousand eight hundred dollars ($12,901,800) to the Mni Wiconi Rural Water System to provide the nonfederal matching requirements for the West River Rural Water System component and the Lyman-Jones Rural Water System component as enumerated in P.L. 100-516 as amended on January 1, 1995. No disbursements may be made under the loans authorized by this section unless funds are appropriated by the Legislature in conformance with § 46A-1-61.
Notwithstanding the provisions of § 46A-1-66 no interest may accrue until the Board of Water and Natural Resources certifies the completion of the construction of the project as authorized. The initial loan repayment shall be due and payable one year following the certification of construction completion. Loan terms and conditions shall be set by the Board of Water and Natural Resources.
The loans authorized by this section may be increased or decreased by such amounts as may be justified by reason of ordinary fluctuations in development costs incurred after October 1, 1992, as indicated by engineering costs indices applicable for the type of construction involved.
Source: SL 1992, ch 254, § 13; SL 1995, ch 251, § 28.
46A-1-13.6. Authorization of Lake Andes-Wagner/Marty II Irrigation Project--Research demonstration project required--Loans authorized--Indian lands exempted from payments.
Pursuant to §§ 46A-1-11 to 46A-1-13, inclusive, construction of a one hundred seventy-five million dollar Lake Andes-Wagner Irrigation Project, as generally described in the report "Planning Report/Environmental Statement" dated September 1985 and a twenty-four million dollar Marty II Irrigation Project as generally described in the report "Planning Report and Environmental Assessment" dated January 1990 is hereby authorized for the purpose of stabilizing crop and forage production in south central South Dakota to offset the effects of drought conditions which naturally devastate South Dakota's economic viability.
Prior to construction of the authorized Lake Andes-Wagner/Marty II Irrigation Project the Legislature finds it necessary and prudent to develop accurate and quantitative means of addressing the reliable drainage requirements with respect to glacial till soils and to develop sound management practices that are beneficial to all irrigation in South Dakota. This phase of the project shall hereby be referred to as the Lake Andes-Wagner/Marty II Research Demonstration Program and shall conclude when the Legislature and the United States Congress accept a final report.
The Board of Water and Natural Resources may provide loans under the State Water Management Resources System revolving loan program in amounts not to exceed a total of seven million dollars to the Lake Andes-Wagner/Marty II Irrigation Project to provide the nonfederal requirements for the federally authorized project. No disbursements may be made under the loans authorized by this section unless funds are appropriated by the Legislature in conformance with § 46A-1-61.
Indian lands shall be exempted from any payments due to the State of South Dakota. Notwithstanding the provisions of § 46A-1-66, no interest may accrue until the Board of Water and Natural Resources certifies the completion of the construction of the project as authorized. The initial loan repayment shall be due and payable one year following the certification of construction completion. Loan terms and conditions shall be set by the Board of Water and Natural Resources.
The loans authorized by this section may be increased or decreased by such amounts as may be justified by reason of ordinary fluctuations in development costs incurred after October 1, 1989, as indicated by engineering costs indices applicable for the type of construction involved.
Source: SL 1992, ch 254, § 14.
46A-1-13.7. Sioux Falls Flood Control Project authorized.
Pursuant to §§ 46A-1-11 to 46A-1-13, inclusive, construction of a twenty-six million nine hundred thousand dollar Sioux Falls Flood Control Project as generally described in the report "Draft Feasibility Report--Local Flood Protection Big Sioux River and Skunk Creek at Sioux Falls, South Dakota" dated September 1991 is hereby authorized for the purpose of providing flood control protection along the Big Sioux River and Skunk Creek in the city of Sioux Falls.
Source: SL 1992, ch 254, § 17.
46A-1-13.8. Black Hills Water Management Project and Black Hills Hydrology Study authorized.
Pursuant to §§ 46A-1-11 to 46A-1-13, inclusive, the ten million dollar Black Hills Water Management Project and the Black Hills Hydrology Study are hereby authorized for the purpose of assessing and meeting present and future water needs in the counties of Butte, Meade, Lawrence, Pennington, Custer, and Fall River.
Source: SL 1992, ch 254, § 18.
46A-1-13.10. Lewis and Clark Rural Water System authorized.
Pursuant to §§ 46A-1-11 to 46A-1-13, inclusive, construction of the South Dakota project features of a two hundred seventy-two million eight hundred thousand dollar Lewis and Clark Rural Water System as generally described in the report "Feasibility Level Evaluation of a Missouri River Regional Water Supply for South Dakota, Iowa and Minnesota" dated September 1993, is hereby authorized for the purposes of providing safe and adequate municipal, rural and industrial water supplies as well as mitigation of wetlands and water conservation in the counties of Union, Clay, Lincoln, Turner, Minnehaha, McCook, and Lake.
There is hereby authorized state grants in the amount of nineteen million six hundred eighty-five thousand dollars ($19,685,000), or so much thereof as may be necessary, to provide the State of South Dakota's portion of the nonfederal matching requirement for the Lewis and Clark Rural Water System. No disbursements may be made under the grant authorized by this section unless funds are appropriated by the Legislature. Grant terms and conditions shall be set by the Board of Water and Natural Resources.
The grant authorized by this section may be increased or decreased by such amounts as may be justified by reason of ordinary fluctuations in development costs incurred after September 1993, as indicated by engineering costs indices applicable for the type of construction involved.
For purposes of § 1.103-1 of the federal income tax regulations, Lewis and Clark Rural Water System, Inc. is hereby recognized as a corporation authorized to act on behalf of its members, including its South Dakota member governmental units, to provide drinking water to their communities, and to issue debt obligations in its own name on behalf of some or all of its members. However, no South Dakota member governmental unit is liable for the payment of principal of or interest on such obligations.
Source: SL 1993, ch 48, § 41; SL 2001, ch 242, § 6; SL 2003, ch 233, § 2; SL 2007, ch 256, § 2, eff. Feb. 28, 2007; SL 2008, ch 235, § 2, eff. Feb. 27, 2008.
46A-1-13.11. Southern Black Hills Water System authorized.
Pursuant to §§ 46A-1-11 to 46A-1-13, inclusive, construction of a seventy-seven million eight hundred thousand dollar Southern Black Hills Water System as generally described in the report "Southern Black Hills Water System Preliminary Engineering Report", dated February, 2005, is hereby authorized for the purposes of providing safe and adequate municipal, rural, and industrial water supplies in the counties of Custer, Fall River, and Pennington.
There is hereby authorized from the South Dakota water and environment fund established pursuant to § 46A-1-60, a grant in the amount of twelve million dollars, or so much thereof as may be necessary, to provide the State of South Dakota's portion of the nonfederal matching requirement for the Southern Black Hills Water System. No disbursements may be made under the grant authorized by this section unless funds are appropriated by the Legislature in conformance with § 46A-1-61. Funds appropriated for the Southern Black Hills Water System since January 1, 2006, shall be considered as part of the State of South Dakota's portion of the match requirement. Grant terms and conditions shall be set by the Board of Water and Natural Resources.
Source: SL 2010, ch 217, § 3, eff. Mar. 23, 2010.
46A-1-13.12. Belle Fourche irrigation upgrade project authorized.
Pursuant to §§ 46A-1-11 to 46A-1-13, inclusive, construction of a five million dollar Belle Fourche irrigation upgrade project to include replacement of the Indian Creek siphon, the Horse Creek siphon, the north canal control house, and the south canal control house, repair of the Belle Fourche River siphon, and removal of sediment from the south canal intake is hereby authorized for the purpose of stabilizing crop and forage production in central western South Dakota to offset the effects of drought conditions which naturally devastate South Dakota's economic viability.
The Board of Water and Natural Resources may provide loans under the state water resources management system revolving loan program in amounts not to exceed a total of two million five hundred thousand dollars to the Belle Fourche irrigation upgrade project. No disbursements may be made under the loans authorized by this section unless funds are appropriated by the Legislature in conformance with § 46A-1-61. Notwithstanding the provisions of § 46A-1-66, no interest may accrue until the Board of Water and Natural Resources certifies the completion of the construction of the project as authorized. The initial loan repayment is due and payable one year following the certification of construction completion. Loan terms and conditions shall be set by the Board of Water and Natural Resources. Notwithstanding the provisions of §§ 46A-6-31 to 46A-6-38, inclusive, no court approval or confirmation of the loans is required.
The Board of Water and Natural Resources may provide grants in amounts not to exceed two million five hundred thousand dollars, or so much thereof as may be necessary, to the Belle Fourche irrigation upgrade project. No disbursements may be made under the grant authorized by this section unless funds are appropriated by the Legislature in conformance with § 46A-1-61.
The loan and grant authorized by this section may be increased or decreased by such amounts as may be justified by reason of ordinary fluctuations in development costs incurred after January 1, 2012, as indicated by engineering costs indices applicable for the type of construction involved.
Source: SL 2012, ch 221, § 4, eff. Mar. 2, 2012.
46A-1-14. Annual report of activities of board--Contents.
January first of every year, the Board of Water and Natural Resources shall make an annual report to the Governor and the Legislature setting forth all activities that it has engaged in during the preceding year. The board shall include within the annual report detailed accounts of all expenditures from the South Dakota water and environment fund created in § 46A-1-60, setting forth descriptions of the purposes of all such expenditures. These reports shall be filed on or before the first legislative day of each session and shall show schedules of expenditures and all other purposes and uses which have been realized and accomplished through the development of the system. The annual report shall also include recommendations on the levels and allocation of funding necessary to implement the state water plan.
Source: SL 1972, ch 241, § 20; SDCL Supp, § 46-17A-19; SL 1986, ch 291, § 2; SL 1992, ch. 254, § 8.
46A-1-15. Consideration of wild, scenic, and recreational rivers.
The Board of Water and Natural Resources shall along with its review of the state water plan consider, in cooperation with the Game, Fish and Parks Commission, the designation of certain rivers or sections of rivers as "wild, scenic, and recreational rivers" upon which no development may occur that is detrimental to the natural and scenic beauty of the designated river.
Source: SL 1972, ch 241, § 21; SDCL Supp, § 46-17A-20; SL 2011, ch 165, § 288.
46A-1-17. Borrowing on interim notes--Expenses paid and loans made from proceeds--Issuance of notes.
The district may borrow money and issue interim notes in evidence thereof to perform any of the duties authorized under this chapter, including the payment of expenses to be incurred for planning, architectural, engineering, legal, and financial services, the acquisition of a site or sites, construction of projects, and the purchase of fixtures and equipment the making of loans authorized by § 46A-1-18, the funding of debt service reserves and capitalized interest and the payment of the costs of issuance. The district may from time to time, and pursuant to appropriate resolution, issue interim notes to evidence such borrowings including interest on such borrowings and all necessary and incidental expenses in connection with any of the purposes provided for by this chapter until the date of the permanent financing.
Source: SL 1972, ch 241, § 25; SL 1979, ch 301, § 4; SDCL Supp, § 46-17A-23.
46A-1-18. Loan of interim note proceeds to public entity or person for project that state or federal agency is committed to finance--Notes issued prior to financing arrangement.
In addition to its other powers, the district may enter into financing arrangements with any public entity or person to loan the proceeds of the district's interim notes to any public entity or person for a project anywhere within this state. The district may adopt the necessary resolution for the loan without specific authorization of the Legislature and without regard to the limitations, provisions, or requirements of any other law except this chapter and chapter 46A-2, and in addition to the aggregate indebtedness otherwise authorized by the Legislature if an agency of the State of South Dakota or an agency or instrumentality of the United States government has committed itself to make a grant or loan to the public entity or person. Under this section, the district may only provide interim financing less than or equal to the combined federal and state grant or loan commitments on each project and may not apply the proceeds of the interim notes and financing to any purpose other than expenses allowed by § 46A-1-17 and the project for which the financing arrangement is made. The person or public entity receiving this interim financing may apply the proceeds of the district's interim notes to the project without specific authorization of the project by the Legislature.
Notes to make loans pursuant to this section may be issued before the district has entered into any financing arrangement if the principal amount of notes does not exceed the amount which the district estimates to be required to enter into financing arrangements and if a grant or loan commitment is received before the district lends note proceeds pursuant to any financing arrangement.
Source: SL 1979, ch 301, § 5; SL 1980, ch 309, § 1; SL 1980, ch 310, § 16; SDCL Supp, § 46-17A-23.1; SL 1983, ch 315, § 14; SL 2011, ch 165, § 289.
46A-1-19. Interim financing--Proper authority required.
Before entering into any financing arrangement under § 46A-1-18, the Board of Water and Natural Resources shall be satisfied by opinion of the attorney general, by an examination of relevant charters, resolutions, minutes, and other documents, or by other sufficient means that the person or public entity receiving such interim financing has the authority and power to construct that project, borrow these funds, and enter into the financing arrangement. The board shall also be so satisfied that all procedures, resolutions, and other things necessary to exercise such authority and power have been properly performed.
Source: SL 1979, ch 301, § 12; SDCL Supp, § 46-17A-23.2.
46A-1-20. Interim financing--Independent review of feasibility of project.
Before issuing any interim notes pursuant to § 46A-1-18, the Board of Water and Natural Resources shall conduct an independent review of the feasibility of the project to ensure that projected water consumption, operation costs, construction costs, revenues and other statistics are reliable and that the project will be able to pay its expenses. The board shall state the findings of its independent review in a motion entered in the minutes of its proceedings.
Source: SL 1979, ch 301, § 14; SDCL Supp, § 46-17A-23.3.
46A-1-21. Interim financing--Proceeds pledged as security--Assignment to district of rights to proceeds.
Any interim financing arrangement under § 46A-1-18 shall provide that the person or public entity receiving the proceeds of such interim financing shall pledge and dedicate the proceeds of its loan or grant from the United States as security for the interim notes issued pursuant to the financing arrangement. In addition, the execution of any interim financing arrangement under § 46A-1-18 shall constitute an assignment to the district of the right to receive the proceeds of the federal loan or grant so far as is necessary to secure the interim notes issued pursuant to the arrangement and in preference to any other obligation whatsoever of the person or public entity receiving the interim financing.
Source: SL 1979, ch 301, § 13; SDCL Supp, § 46-17A-23.4.
46A-1-22. Terms of interim notes.
Any resolution authorizing the issuance of such notes shall specify the principal amount, rate of interest and maturity date, but not to exceed five years from date of issue, and such other terms as may be specified in such resolution.
Source: SL 1972, ch 241, § 26; SDCL Supp, § 46-17A-24; SL 1986, ch 367.
46A-1-23. Security for interim notes.
All such notes and the interest on the notes may be secured by a pledge of, and payable from, any income and revenue (subject to the prior payment of the operation and maintenance expenses of any project) derived from the project to be undertaken with the proceeds of the notes; the proceeds to be derived from the sale of any revenue bonds for permanent financing authorized to be issued under this chapter; the project itself; any funds, property, or obligation of any public entity or person with whom the district has entered into a financing arrangement under § 46A-1-18 in connection with the project; the proceeds of the notes; or any grant or loan to be made by an agency or instrumentality of the United States government in connection with the project.
Source: SL 1972, ch 241, § 27; SL 1979, ch 301, § 7; SDCL Supp, § 46-17A-25; SL 2011, ch 165, § 290.
46A-1-24. Additional covenants and conditions to secure interim notes.
The district, in order further to secure the payment of the interim notes, may make any other or additional covenants, terms, and conditions not inconsistent with the provisions of this chapter, and do anything that may be necessary or convenient or desirable in order to secure payment of its interim notes, or in the discretion of the district, as will tend to make the interim notes more acceptable to lenders, notwithstanding that the covenants, acts, or things may not be enumerated in this chapter.
Source: SL 1972, ch 241, § 28; SDCL Supp, § 46-17A-26; SL 2011, ch 165, § 291.
46A-1-25. Registration of interim notes--Interest payment--Redemption prior to maturity.
The district may provide for the registration of the notes in the name of the owner either as to principal alone, or as to both principal and interest, on such terms and conditions as the district may determine by the resolution authorizing their issue. Interest on the notes may be made payable semiannually, annually, or at maturity. The notes may be made redeemable, prior to maturity, at the option of the district, in the manner and upon the terms fixed by the resolution authorizing their issuance.
Source: SL 1972, ch 241, § 29; SDCL Supp, § 46-17A-27.
46A-1-26. Execution and attestation of interim notes--Sale.
The notes may be executed by the chairman of the board and shall be attested by the secretary of the Department of Agriculture and Natural Resources. The district may by resolution provide that any signatures, other than the authentication signature of the trustee, on the notes may be printed, lithographed, engraved, or otherwise reproduced on the notes. The notes shall be sold in a manner and at a price determined by the district by resolution.
Source: SL 1972, ch 241, § 30; SL 1979, ch 301, § 8; SDCL Supp, § 46-17A-28; SL 1985, ch 352; SL 2011, ch 165, § 292; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-1-27. Bond provisions applicable to interim financing.
The provisions of §§ 46A-1-38 to 46A-1-44, inclusive, § 46A-1-46, § 46A-1-49, § 46A-1-54, §§ 46A-1-56 to 46A-1-59, inclusive, and § 46A-1-70, relating to bonds shall also apply to notes issued pursuant to § 46A-1-17.
Source: SL 1979, ch 301, § 9; SDCL Supp, § 46-17A-28.1.
46A-1-28. Payment of interim notes on issue of revenue bonds.
Contemporaneously with the issue of revenue bonds as provided by this chapter, all interim notes, even though they may not then have matured, shall be paid, both principal and interest to date of payment, from the funds derived from the sale of revenue bonds for the permanent financing and such interim notes shall be surrendered and canceled.
Source: SL 1972, ch 241, § 31; SDCL Supp, § 46-17A-29.
46A-1-29. Plan for project financing to be submitted to Legislature--Authorization for bond issuance--Amount of bonds.
Upon presentation of a request to authorize the construction of a water facility of the state water resources management system by the Board of Water and Natural Resources in accordance with § 46A-1-11, the board shall provide a plan for financing the construction of the project to the Legislature, including, in the case of a project to be financed under § 46A-1-49, a general description of the anticipated financing agreement with the participating persons or public entities. If the board deems it necessary to request authorization for the issuance of bonds by the district, the Legislature shall determine whether such authorization shall be given in the same act as it authorizes the inclusion of construction of the project as part of the state water resources management system. If the Legislature authorizes the issuance of bonds for the construction of the facilities, it shall specify the amount of bonds that may be issued by the district for construction of the project, including any amount of bonds issued to fund a debt service reserve for the bonds or for capitalized interest during construction of the project. Pursuant to authorization by the Legislature, the district may issue bonds to acquire or construct or arrange for construction of, or to enter into a financing agreement with persons or public entities for, any one project, or more than one, or to refund bonds heretofore or hereafter issued for each project or facility or to fund a debt service reserve for the bonds or for capitalized interest during construction of the project and to provide for the security and payment of the bonds and for the rights of the holders of the bonds. The board may issue bonds in the amount of up to thirty percent greater than the specific amount authorized by the Legislature for financing any specific project if increases in construction costs, changes in engineering designs, or minor changes in the area or number of persons served by a project require such an increase to complete the project, and if the amount of funds obtained from the district through its bonding power does not exceed the authorization of the Legislature by more than thirty percent for any specific project.
Source: SL 1972, ch 241, § 24; SL 1977, ch 377, § 1; SL 1980, ch 310, § 6; SDCL Supp, § 46-17A-30; SL 2011, ch 165, § 293.
46A-1-30. Purposes for bond issuance.
The district may issue bonds authorized by the Legislature pursuant to § 46A-1-29 or by § 46A-1-31 for the following purposes, which are hereby determined to be in the public interest and to constitute lawful and public purposes:
(1) To acquire, construct, plan, or arrange for acquisition and construction of any one project, or more than one;
(2) To issue bonds to effectuate § 46A-2-16;
(3) To refund bonds heretofore and hereafter issued, including the refunding of bonds in advance of their call or maturity date. The refunding bonds may be partially or wholly secured by and payable from obligations of the United States government or the income from such obligations;
(4) To fund a debt service reserve for the bonds;
(5) To provide for capitalized interest during the estimated construction period of the projects and for a period of one year thereafter;
(6) For any of the preceding purposes;
(7) To enter into financing agreements to make loans pursuant to § 46A-1-49;
(8) To provide for the payment of the costs of issuance of the bonds. At no time may district indebtedness exceed the aggregate indebtedness authorized by the Legislature pursuant to § 46A-1-29, plus any additional amount authorized by that section, less the cumulative regular amortization payments made on each bond issue, except as specifically provided by § 46A-1-31. The bonds shall be authorized by resolution of the Board of Water and Natural Resources. The resolution may provide that any signatures, other than the authentication signature of the trustee, on the bonds may be printed, lithographed, engraved, or otherwise reproduced on the bond;
(9) To purchase or otherwise finance or provide for the purchase or payment of loans made by the United States Department of Agriculture, as provided in § 46A-1-31;
(10) To purchase or otherwise finance or provide for the purchase or payment of bonds or other obligations of any public entity or person in connection with the water pollution control revolving fund program and the drinking water revolving fund program, as provided in § 46A-1-31.
Source: SL 1972, ch 241, § 32; SL 1976, ch 282, § 1; SL 1977, ch 369, § 2; SL 1977, ch 377, § 2; SL 1980, ch 310, § 7; SL 1981 (2d SS), ch 1, § 18; SDCL Supp, § 46-17A-31; SL 1988, ch 363, § 1; SL 1989, ch 385, § 20; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1994, ch 347, § 1; SL 2011, ch 165, § 294.
46A-1-31. Bond issuance to finance or refinance statewide water plan projects--Bond issuance to purchase or finance loans by United States Department of Agriculture or to fund revolving fund programs under Clean Water Act or Safe Drinking Water Act.
In addition to the aggregate indebtedness authorized by the Legislature and Board of Water and Natural Resources pursuant to §§ 46A-1-29 and 46A-1-30, the district may issue bonds in an amount not to exceed in aggregate eight million dollars at any time for the purpose of financing or refinancing projects as defined in subdivision 46A-2-4(5) that are components of the statewide water plan subject to the provisions of §§ 46A-1-49 to 46A-1-52, inclusive. In addition to the aggregate indebtedness authorized by the Legislature and Board of Water and Natural Resources pursuant to §§ 46A-1-29 and 46A-1-30, the district may issue bonds in any amount at any time for the purpose of purchasing or otherwise financing or providing for the purchase or payment of loans made by the United States Department of Agriculture to any person or public entity, whether or not the person or public entity or the project financed with the loan are located in South Dakota or formed under or recognized by South Dakota law, as community facilities loans or water and waste disposal loans. The purchasing, financing, or payment activities are hereby determined to be components of the state water plan and are authorized without regard to § 46A-2-20. The district may enter into financing agreements with the persons or public entities to secure and provide for the payment of the bonds, without regard to § 46A-2-20 or §§ 46A-1-63.1 to 46A-1-69, inclusive. The district may make payments or deposits for the purchase or payment of the loans from funds obtained from the persons or public entities, whether or not bonds have been issued. The purchase or payment of loans for persons or public entities or projects located outside of the State of South Dakota is hereby authorized and declared to be a public purpose if, at the discretion and in the determination of the district, the purchase or payment is expected to result in economies of scale, fees, interest savings, financing, or other benefits to the district, South Dakota persons, or public entities or the State of South Dakota. The district, in the proceedings for the issuance of the bonds, shall establish the manner in which the trustee shall manage and disperse any savings for the benefit of the persons and public entities whose community facilities loans and water and waste disposal loans have been purchased or prepaid by the district. In addition to the aggregate indebtedness authorized by the Legislature and the Board of Water and Natural Resources pursuant to §§ 46A-1-29 and 46A-1-30, the district may also issue bonds in any amount at any time for the purpose of funding all or part of the revolving funds required for either the state water pollution control revolving fund program or the state drinking water revolving fund program or both under either the federal Clean Water Act, as amended to January 1, 2011, or federal Safe Drinking Water Act, as amended to January 1, 2011, or both. The bonds issued for these revolving fund programs shall be used to purchase or otherwise finance or provide for the purchase or payment of bonds or other obligations, including the refinancing of obligations previously issued or for projects previously completed. The purchasing, financing, or payment activities are hereby determined to be components of the state water facilities plan and are authorized without regard to § 46A-2-20. The district may enter into financing agreements with the persons or public entities to secure and provide for the payment of the bonds, without regard to § 46A-2-20 or §§ 46A-1-63.1 to 46A-1-69, inclusive. The district may pledge or assign to or hold in trust for the benefit of the holder or holders of the bonds those moneys appropriated by the Legislature for the purpose of funding state contributions to the state water pollution control revolving fund program and the state drinking water revolving fund program. The moneys may be held and invested pursuant to a trust agreement for the payment of the principal of, premium, if any, and interest on, the bonds.
Source: SL 1977, ch 377, § 3; SDCL Supp, § 46-17A-31.1; SL 1984, ch 288, § 16; SL 1988, ch 363, § 2; SL 1989, ch 385, § 21; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1994, ch 347, § 2; SL 2011, ch 165, § 295; SL 2012, ch 216, § 1.
46A-1-32. Terms of bonds.
The bonds may be issued and sold in one or more series, may be in such amounts and at such prices, may bear such date or dates, may be in such denomination or denominations, may mature at such time or times not exceeding fifty years from the respective dates thereof, may mature in such amount or amounts, may bear interest at such times and at such fixed or variable rate or rates as shall be determined by the district and without regard to any interest rate limitation appearing in any other law, may be in such form, either coupon or registered as to principal only or as to both principal and interest, may carry such registration privileges (including the conversion of a fully registered bond to a coupon bond or bonds and the conversion of a coupon bond to a fully registered bond), may be executed in such manner, may be made payable in such medium of payment, at such place or places within or without the state, may be callable or subject to purchase and retirement or tender and remarketing as determined by the district in any indenture, resolution, or other instrument. The district may take any action it deems appropriate for the purpose of implementing this section, including establishing parameters referencing current market conditions or published indices in connection with establishing interest rates, imposing maximum interest rate limitations, or establishing other parameters it deems appropriate, and may delegate the administration of specific functions within the established parameters. The district may enter into arrangements to provide additional security and liquidity for bonds, and to limit, reduce, or manage interest rate exposure with respect to bonds issued or to be issued.
Source: SL 1972, ch 241, § 33; SDCL Supp, § 46-17A-32; SL 2008, ch 231, § 1.
46A-1-33. Pledge of revenues to secure payment of bonds.
In connection with the issuance of any bonds under this chapter, and in order to secure the payment of any such bonds and the interest thereon, the district shall have the power to provide that bonds issued under this chapter, subject only to the prior payment of the operation and maintenance expenses of any project, shall be payable from and secured by a pledge of and lien on all or any part of the income and revenues derived from, and to pledge and assign to, or in trust for the benefit of, the holder or holders of bonds issued under this chapter all or any part of the income and revenues derived from:
(1) Fees, rentals, and other charges as may be established by the district from persons using or being served by, or having the right to use or the right to be served by, or to operate, any project; and
(2) Rentals from any facility or building leased to the United States of America;
(3) Payments or obligations of any public entity or person pursuant to a financing agreement authorized by § 46A-1-49.
Source: SL 1972, ch 241, § 34; SL 1980, ch 310, § 8; SDCL Supp, § 46-17A-33.
46A-1-33.1. District may contract to manage payment or interest rate risk for bonds.
The district may enter into any contract that the district determines necessary or appropriate to manage payment or interest rate risk for bonds issued pursuant to this chapter, the investment of proceeds, or other funds of the district. The contracts may include: interest rate exchange agreements; contracts providing for payment or receipt of funds based on levels of or changes in interest rates; contracts to exchange cash flows or series of payments; or contracts incorporating interest rate caps, collars, floors, or locks.
Source: SL 2003, ch 10, § 6.
46A-1-36. Covenant to collect revenues sufficient for retirement of bonds.
The district may covenant with or for the benefit of the holder of any bonds issued under this chapter that if any such bonds remain outstanding and unpaid, the district will fix, maintain, and collect in such installments as may be agreed upon, all revenues authorized to be pledged under § 46A-1-33 until the bonds and accruing interest have been paid in accordance with their terms. The aggregate revenues shall be sufficient at all times to pay all necessary expenses of the operation and maintenance of any project, to pay the bonds at maturity and accruing interest on the bonds in accordance with their terms, and to create and maintain all reserves for the bonds as provided by the resolution authorizing the bonds.
Source: SL 1972, ch 241, § 35; SDCL Supp, § 46-17A-34; SL 2011, ch 165, § 296.
46A-1-37. Covenant against alienation or encumbrance of projects while bonds outstanding.
The district may covenant that if any of the bonds issued under this chapter remain outstanding and unpaid, the district will not, except upon such terms and conditions as may be determined, voluntarily create or cause to be created any debt, lien, mortgage, pledge, assignment, encumbrance, or other charge having priority to the lien of the bonds issued under this chapter upon any of the income and revenues derived from all revenues pledged pursuant to § 46A-1-33, or convey or otherwise alienate any project or the real estate upon which the project is located, except at a price sufficient to pay all the bonds issued for the project then outstanding and interest accrued on the bonds, and then only in accordance with any agreements with the holder of the bonds.
Source: SL 1972, ch 241, § 36; SDCL Supp, § 46-17A-35; SL 2011, ch 165, § 297.
46A-1-38. Covenants as to management of project and accounting for funds.
The district may covenant with or for the benefit of the holder of any bonds issued under this chapter as to all matters deemed advisable by the district including:
(1) The purposes, terms, and conditions for the issuance of additional parity or junior lien bonds that may thereafter be issued, and for the payment of the principal, redemption premiums, and interest on the bonds;
(2) The kind and amount of all insurance to be carried, the cost of which shall be charged as an operation and maintenance expense of any project;
(3) The operation, maintenance, and management of any project to assure the maximum use and occupancy of the project; the accounting for, and the auditing of, all income revenue from, and all expenses of, any project; the employment of engineers and consultants; and the keeping of records, reports, and audits of any project;
(4) The obligation of the district to maintain any project in good condition and to operate the project at all times in an economical and efficient manner;
(5) The terms and conditions for creating and maintaining debt service funds, reserve funds, and such other special funds as may be created in the resolution authorizing the bonds, separate and apart from all other funds and accounts of the district and the institution;
(6) The procedure by which the terms of any contract with the holders of the bonds may be amended, the amount of bonds the holders of which must consent to the amendment, and the manner in which consent may be given;
(7) Providing the procedure for refunding the bonds;
(8) Such other covenants as may be deemed necessary or desirable to assure a successful operation of any project and the prompt payment of the principal of and interest upon the bonds so authorized.
Source: SL 1972, ch 241, § 37; SDCL Supp, § 46-17A-36; SL 2011, ch 165, § 298.
46A-1-39. Trust agreements.
The district may vest in a trustee the right to receive any part of the proceeds of the bonds and any part of the income and revenue pledged and assigned to, or for the benefit of, the holder of bonds issued under this chapter; the right to hold, apply, and dispose of the bonds; and the right to enforce any covenant made to secure or pay or in relation to the bonds. The district may execute and deliver a trust agreement setting forth the powers and duties of and the remedies available to the trustee, limiting the liabilities of the trustee, describing what occurrences constitute events of default, and prescribing the terms and conditions upon which the trustee or the holder of any specified amount or percentage of the bonds may exercise such right and enforce any such covenants and resort to remedies as may be appropriate.
Source: SL 1972, ch 241, § 38; SL 1980, ch 310, § 10; SDCL Supp, § 46-17A-37; SL 2011, ch 165, § 299.
46A-1-40. Additional covenants to secure bonds or make them more marketable.
The district may covenant to perform any act and to do anything as may be necessary or convenient or desirable in order to secure its bonds, or as may in the judgment of the district tend to make the bonds more marketable, notwithstanding that such acts or things may not be enumerated in this section or this chapter. It is the intention of this chapter to empower the district issuing bonds pursuant to this chapter to make all covenants, to perform all acts, and to do all things not inconsistent with the Constitution of the State of South Dakota.
Source: SL 1972, ch 241, § 39; SDCL Supp, § 46-17A-38; SL 2011, ch 165, § 300.
46A-1-41. State general obligation not to be created.
Nothing in this chapter shall be construed to authorize the district to contract a debt on behalf of, or in any way to obligate, the State of South Dakota, or to pledge, assign, or encumber in any way, or to permit the pledging, assigning, or encumbering in any way, of appropriations made by the Legislature of the State of South Dakota unless the Legislature specifically provides otherwise.
Source: SL 1972, ch 241, § 40; SDCL Supp, § 46-17A-39.
46A-1-42. Bonds not a state obligation--Payment restricted to revenues.
Any bonds issued pursuant to this chapter are obligations of the district payable only in accordance with the terms of the bonds and are not obligations general, special, or otherwise, of the State of South Dakota. Such bonds do not constitute a debt, legal or moral, of the State of South Dakota, and are not enforceable against the state. Payment of the bonds is not enforceable out of any funds of the district other than the income and revenues pledged and assigned to, or in trust for the benefit of, the holder or holders of the bonds.
Source: SL 1972, ch 241, § 41; SDCL Supp, § 46-17A-40; SL 2011, ch 165, § 301.
46A-1-43. Recording not required for bond protection.
Neither the resolution authorizing the bonds nor any financing statement or other instrument or document need be filed or recorded in any public records in order to perfect the lien on the pledge of the revenues to pay the bonds as against third parties.
Source: SL 1972, ch 241, § 42; SDCL Supp, § 46-17A-41.
46A-1-44. Validity of bonds not dependent upon signing officers remaining in office or regularity of proceedings.
The bonds bearing the signatures of officers of the district in office on the date of the signing of the bonds are valid and binding obligations, notwithstanding that before the delivery of and payment for the bonds any person whose signature appears on the bonds may have ceased to be an officer. The validity of the bonds is not dependent on nor affected by the validity or regularity of any proceedings to acquire any project financed by the bonds, or to refund outstanding bonds, or taken in connection with the bonds.
Source: SL 1972, ch 241, § 43; SDCL Supp, § 46-17A-42; SL 2011, ch 165, § 302.
46A-1-45. Sale of bonds--Procedure and price.
All bonds issued under this chapter shall be sold in a manner and for a price or prices as the district shall determine.
Source: SL 1972, ch 241, § 44; SL 1980, ch 310, § 11; SDCL Supp, § 46-17A-43; SL 1988, ch 363, § 3.
46A-1-46. Negotiability of bonds.
The coupon bonds shall be fully negotiable within the meaning of the Uniform Commercial Code, Title 57A of South Dakota Codified Laws.
Source: SL 1972, ch 241, § 45; SDCL Supp, § 46-17A-44.
46A-1-47. Bonds as legal investments for fiduciaries and financial institutions.
The state and all counties, municipal corporations, political subdivisions, and public bodies, and public officers of any thereof, all banks, subject to applicable investment limitations, bankers, trust companies, savings banks and institutions, building and loan associations, savings and loan associations, investment companies, and other persons carrying on a banking business, all insurance companies, insurance associations, and other persons carrying on an insurance business, and all personal representatives, conservators, trustees, and other fiduciaries may legally invest any debt service funds, moneys, or other funds belonging to them or within their control in any bonds issued pursuant to this chapter, it being the purpose of this section to authorize the investment in such bonds of all debt service, insurance, retirement, compensation, pension, and trust funds, whether owned or controlled by private or public persons or officers. However, nothing in this section may be construed as relieving any person, firm, or corporation from any duty of exercising reasonable care in selecting securities for purchase or investment.
Source: SL 1972, ch 241, § 46; SDCL Supp, § 46-17A-45; SL 1993, ch 213, § 242; SL 1995, ch 167, § 188.
46A-1-48. Bond and note proceeds--Payment into state treasury not required.
Notwithstanding the provisions of any other law, no moneys derived from the sale of bonds or notes issued under the provisions of this chapter, or pledged or assigned to or in trust for the benefit of the holder or holders of the bonds or notes, may be required to be paid into the state treasury.
Source: SL 1972, ch 241, § 47; SL 1976, ch 282, § 5; SL 1980, ch 310, § 12; SDCL Supp, § 46-17A-46; SL 2011, ch 165, § 303.
46A-1-49. Financing agreements to lend bond proceeds--Board resolution.
In addition to its other powers, the district may, by appropriate resolution of the Board of Water and Natural Resources, enter into financing agreements with any public entity or person to loan the proceeds of the district's bonds to any public entity or person for a project within or without a water development district, subject to the requirement of § 46A-2-20, without regard to the limitations, provisions, or requirements of any other law except chapter 46A-2 and this chapter. The persons or public entities receiving this financing may apply the borrowed funds to the project without further authorization of the project by the Legislature.
Source: SL 1980, ch 310, § 2; SDCL Supp, § 46-17A-46.1; SL 1984 (SS), ch 1, § 64; SL 2011, ch 165, § 304.
46A-1-50. Financing agreements--Provisions to provide for and secure repayment of bonds and loan.
Any financing agreement under § 46A-1-49 shall provide for repayment of the loan through payments sufficient to pay the principal of, premium if any, and interest on the bonds issued in connection with the agreement and, in order to provide for and secure the repayment of the bonds and the amounts owing under the financing agreement, may contain provisions requiring, among other things, any one or more parties to:
(1) Incur a general obligation and to exercise its power to tax or levy special assessments;
(2) Incur a limited obligation payable only from designated sources;
(3) Pledge, assign, or mortgage any income and revenue (subject to the prior payment of the operation and maintenance expenses of the project) derived from the project; any fund, property or obligation related to such project; the loan proceeds themselves; any grant or loan received or to be received by a party; and the project, including real estate;
(4) Create and maintain a reserve fund or funds through the levy of taxes or other suitable means within a party's power, for prevention of default;
(5) Properly manage the project for the protection of the bondholders as provided in subdivisions 46A-1-38(2), (3), (4), and (8);
(6) Refrain from creating or causing to be created any debt, lien, mortgage, pledge, assignment, encumbrance, or other charge upon any income, revenues or property;
(7) Refrain from conveying or otherwise alienating project facilities or the real estate upon which the project is located or any property that is pledged or assigned;
(8) Deposit with a trustee or trustees all or any part of the proceeds from the sale of the bonds or all or any part of the income and revenue pledged or assigned for the benefit of the bondholder; and
(9) Perform any and all acts and do any and all things within the party's legal capacity as may be necessary, convenient, or desirable in order to provide for and secure the repayment of the bonds and the amounts owing under the financing agreement, notwithstanding that such terms are not enumerated herein.
Source: SL 1980, ch 310, § 3; SL 1981 (2d SS), ch 1, § 21; SDCL Supp, § 46-17A-46.2.
46A-1-51. Financing agreements--Proper authority required.
Before entering into any financing agreement under § 46A-1-49, the Board of Water and Natural Resources shall be satisfied by opinion of the attorney general, by an examination of relevant charters, resolutions, minutes, and other documents, or by other sufficient means that the person or public entity receiving such financing has the authority and power to construct the project, borrow these funds and enter into the financing agreement. The board shall also be so satisfied that all procedures, resolutions, and other things necessary to exercise such authority have been properly performed.
Source: SL 1980, ch 310, § 4; SDCL Supp, § 46-17A-46.3.
46A-1-52. Financing agreements--Independent review of feasibility of project.
Before entering into any financing agreement under § 46A-1-49, the Board of Water and Natural Resources shall conduct an independent review of the feasibility of the project to ensure that projected water consumption, operation costs, construction costs, revenues, and other statistics are reliable and that the project will be able to pay its costs and expenses. The board shall state the findings of its independent review in a motion entered in the minutes of its proceedings.
Source: SL 1980, ch 310, § 5; SDCL Supp, § 46-17A-46.4.
46A-1-53. Agreement as to custody and disposition of moneys.
The provisions of § 46A-1-48 do not limit the power of the district to agree in connection with the issuance of any of its bonds as to the custody and the disposition of the moneys received from the sale of the bonds or from the income and revenues pledged or assigned to or in trust for the benefit of the holder of the bonds.
Source: SL 1972, ch 241, § 48; SDCL Supp, § 46-17A-47; SL 2011, ch 165, § 305.
46A-1-54. Remedies of bondholders.
The provisions of this chapter and of any resolution or other proceeding authorizing the issuance of bonds shall constitute a contract with the holders of such bonds and the provisions thereof shall be enforceable either in law or in equity, by suit, action, mandamus, or other proceeding in any court of competent jurisdiction to enforce and compel the performance of all duties required by this chapter and by any resolution authorizing the issuance of bonds adopted responsive hereto.
Source: SL 1972, ch 241, § 49; SDCL Supp, § 46-17A-48.
46A-1-55. Persons executing district notes or bonds not subject to personal liability.
Neither the members of the Board of Water and Natural Resources nor any other person executing the notes or bonds issued by the district shall be subject to personal liability or accountability by reason of the issuance thereof or any review or finding of feasibility under § 46A-1-20 or 46A-1-52.
Source: SL 1981 (2d SS), ch 1, § 20; SDCL Supp, § 46-17A-48.1.
46A-1-56. Refunding bonds authorized for matured obligations.
The district may issue negotiable refunding bonds for the following purposes:
(1) To refund unpaid matured bonds;
(2) To refund unpaid matured coupons evidencing interest upon its unpaid matured bonds; and
(3) To refund interest at the coupon rate upon its unpaid matured bonds that has accrued since the maturity of those bonds.
Source: SL 1972, ch 241, § 50; SDCL Supp, § 46-17A-49; SL 2011, ch 165, § 306.
46A-1-57. Sale of refunding bonds for matured obligations--Application of proceeds--Cancellation of instruments paid.
Refunding bonds issued pursuant to § 46A-1-56 may be sold at such price as the district shall determine and the proceeds received at any such sale shall be used to pay the bonds, interest coupons, and interest not represented by coupons, if any. Bonds and interest coupons which have been paid shall be canceled and the obligation for interest, not represented by coupons, which has been discharged, shall be evidenced by a written acknowledgment of the exchange or payment thereof.
Source: SL 1972, ch 241, § 51; SDCL Supp, § 46-17A-50; SL 1988, ch 363, § 4; SL 1989, ch 385, § 22.
46A-1-58. Refunding bonds authorized for unmatured obligations.
The district may issue negotiable refunding bonds under the provisions of this chapter to refund bonds at or before their maturity or which by their terms are subject to redemption before maturity, or both, in an amount necessary to refund:
(1) The principal amount of the bonds to be refunded;
(2) The interest to accrue up to and including the maturity date or dates, or to the next succeeding redemption date of the bonds; and
(3) The applicable redemption premiums, if any.
Source: SL 1972, ch 241, § 52; SDCL Supp, § 46-17A-51; SL 2011, ch 165, § 307.
46A-1-59. Sale of refunding bonds for unmatured obligations--Use of proceeds.
Refunding bonds issued pursuant to § 46A-1-58 may be sold at a price determined by the district. All proceeds received at the sale of the refunding bonds (excepting the accrued interest received) shall be used:
(1) If the bonds to be refunded are then due, for the payment of the bonds;
(2) If the bonds to be refunded are voluntarily surrendered with the consent of the holder or holders of the bonds, for the payment of the bonds;
(3) If the bonds to be refunded are then subject to prior redemption by their terms, for the redemption of the bonds;
(4) If the bonds to be refunded are not then subject to payment or redemption, to purchase direct obligations of the United States of America if the obligations will mature at such times, with interest on the obligations or the proceeds received from the obligations, to provide funds adequate to pay when due or called for redemption before maturity the bonds to be refunded, together with the interest accrued on the bonds and any redemption premium due on the bonds. The proceeds or obligations of the United States of America shall, with all other funds legally available for such purpose, be deposited in escrow with a banking corporation, or national banking association, located in and doing business in the State of South Dakota, with power to accept and execute trusts, or any successor thereto, which is also a member of the federal deposit insurance corporation and of the federal reserve system, to be held in an irrevocable trust solely for and until the payment and redemption of the bonds so to be refunded. Any balance remaining in the escrow after the payment and retirement of the bonds to be refunded shall be returned to the district to be used and held for use as revenues pledged for the payment of the refunding bonds; or
(5) For any combination of the purposes specified in subdivisions (1) to (4), inclusive, of this section.
Source: SL 1972, ch 241, § 53; SDCL Supp, § 46-17A-52; SL 1988, ch 363, § 5; SL 1989, ch 385, § 23; SL 2011, ch 165, § 308.
46A-1-60. Water and environment fund--Establishment--Moneys in fund.
There is hereby established in the state treasury a special capital projects fund to be designated as the South Dakota water and environment fund. This fund shall consist of all moneys from all lawful public and private sources, including legislative appropriations, federal grants for capitalization of either a state water pollution control revolving fund or a state drinking water revolving fund or both, interest on investments, and principal and interest on loans made from the fund received by the district that are available for water facilities as provided by this chapter. The water and environment fund need not include any funds which are not required to be deposited therein as provided in § 46A-1-48.
Source: SL 1972, ch 241, § 54; SL 1982, ch 316, § 1; SDCL Supp, § 46-17A-53; SL 1988, ch 363, § 6; SL 1988, ch 364, § 3; SL 1992, ch 254, § 8; SL 1994, ch 347, § 3.
46A-1-60.1. Water pollution control revolving fund program and state drinking water revolving fund program established--Program subfunds created--Deposits into subfunds and use thereof.
The state water pollution control revolving fund program and the state drinking water revolving fund program are hereby established. Program subfunds shall be created within the water and environment fund established pursuant to § 46A-1-60. The required subfunds shall be maintained separately, and all federal, state, and other funds for use in the program shall be deposited into the respective subfund, including all federal grants for capitalization of either a state water pollution control revolving fund or a state drinking water revolving fund or both, all repayments of assistance awarded from the subfund, interest on investments made on money in the subfund, proceeds of discretionary bond issues allowed by § 46A-1-31, and principal and interest on loans made from the fund. Money in the subfund may be used only for purposes authorized under federal law. The subfund may be pledged or assigned by the district to or in trust for the holder or holders of the bonds of the district and may be transferred to and held by a trustee or trustees pursuant to § 46A-1-39.
The board shall promulgate rules pursuant to chapter 1-26, to implement the provisions of this section consistent with the requirements of federal law in order for an approved state water pollution control revolving fund or a state drinking water revolving fund to become eligible for grant funds from the United States Environmental Protection Agency.
Source: SL 1988, ch 364, § 1; SL 1989, ch 385, § 24; SL 1992, ch 254, § 8; SL 1994, ch 347, § 4; SL 1995, ch 251, § 29.
46A-1-60.2. Disbursements from and administration of water pollution control revolving fund program and state drinking water revolving fund program--Sections 46A-1-61 to 46A-1-69 inapplicable.
Funds from the state water pollution control revolving fund program and the state drinking water revolving fund program shall be disbursed and administered according to rules promulgated by the Board of Water and Natural Resources pursuant to chapter 1-26, § 46A-1-65 and the provisions of §§ 46A-1-60 to 46A-1-60.3, inclusive. Sections 46A-1-61 to 46A-1-69, inclusive, do not apply to the subfund of the water and environment fund or loans therefrom pursuant to the state water pollution control revolving fund program and the drinking water revolving fund program described in §§ 46A-1-60 to 46A-1-60.3, inclusive.
The board shall promulgate rules pursuant to chapter 1-26, to implement the provisions of this section consistent with the requirements of federal law in order for an approved state water pollution control revolving fund or a state drinking water revolving fund to become eligible for grant funds from the United States Environmental Protection Agency.
Source: SL 1988, ch 364, § 2; SL 1989, ch 385, § 25; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1992, ch 254, § 8; SL 1993, ch 256, § 62; SL 1994, ch 347, § 5; SL 1995, ch 251, § 30.
46A-1-60.3. Rules for selection of projects to receive funds from water pollution control revolving fund program and state drinking water revolving fund program and administration of same.
The Board of Water and Natural Resources may, by rules promulgated pursuant to chapter 1-26, establish criteria and procedures for the selection of projects to receive funds from the state water pollution control revolving fund program and the state drinking water revolving fund program and for the administration of the programs.
Source: SL 1988, ch 364, § 4; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1994, ch 347, § 6.
46A-1-61. Authorization required for disbursements from fund--Form of appropriation from fund--Limit on grants.
All money disbursed from the water and environment fund shall be authorized by an act of the Legislature for projects approved as part of the state water resources management system or for ongoing programs that have been or shall be established by the Legislature for the purpose of managing the state's water resources. All appropriations from the fund shall be in the form of loans unless otherwise directed by the Legislature. A grant from the fund made after July 1, 1982, for any project may not exceed eighty percent of the nonfederal share of expenditures for that project.
Source: SL 1972, ch 241, § 55; SL 1981 (2d SS), ch 3, § 3; SL 1982, ch 316, § 2; SDCL Supp, § 46-17A-54; SL 1983, ch 315, § 15; SL 1986, ch 291, § 3; SL 1992, ch 254, §§ 8, 10; SL 1993, ch 334, § 4; SL 2006, ch 2, § 35.
46A-1-62. Disbursements from capital projects fund.
Disbursements from the South Dakota water and environment fund shall be on warrants drawn by the state auditor pursuant to vouchers approved by the secretary of the Department of Agriculture and Natural Resources.
Source: SL 1972, ch 241, § 54; SDCL Supp, § 46-17A-55; SL 1992, ch 254, §§ 8, 98; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-1-63. Energy industry use funds deposit--Deposit of funds recovered through lawsuit or settlement.
Funds accruing to the district under contract or instrument of conveyance for energy industry use under § 46A-2-19, received under § 46A-2-25 or any other source unless otherwise provided by law, shall be deposited in the South Dakota water and environment fund established by § 46A-1-60. Funds, including damages, interest, costs, and fees, recovered as a result of any lawsuit or settlement involving a contract or instrument of conveyance for energy industry use in which the conservancy district was party, shall be deposited in the water and environment program, except that any attorney fees and costs associated with the lawsuit or settlement shall be deposited in the fund created pursuant to § 1-11-6.1.
Source: SL 1981 (2d SS), ch 3, § 1; SL 1982, ch 28, § 15; SDCL Supp, § 46-17A-53.1; SL 1985, ch 354, § 2; SL 1989, ch 385, § 25A; SL 1992, ch 254, § 8.
46A-1-63.1. Consolidated water facilities construction program--Disbursements.
The state consolidated water facilities construction program is hereby established. Under this program the Board of Water and Natural Resources may grant or loan funds from the water and environment fund or from the proceeds of its discretionary bond issues allowed by § 46A-1-31 for construction of projects included in the state water facilities plan. Disbursements made through the consolidated water facilities construction program shall conform to the provisions of §§ 46A-1-61 and 46A-2-3.
Source: SL 1986, ch 291, § 4; SL 1987, ch 29, § 98; SL 1989, ch 385, § 13; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1992, ch 254, § 8; SL 1993, ch 34, § 8.
46A-1-64. Limit on loans or grants to projects in water facilities plan--Security for loans.
In administering the consolidated water facilities construction program, the Board of Water and Natural Resources may loan or grant a sum equal to the construction cost as estimated by the board but not to exceed two million dollars to any project in the state water facilities plan without specific authorization of the Legislature. Loans shall be secured by the best security position available. A pledge of assets owned by the entity receiving a loan and project revenues shall constitute sufficient minimum security for loans under this section.
Source: SL 1976, ch 282, § 3; SL 1977, ch 378; SDCL Supp, § 46-17A-54.1; SL 1983, ch 315, § 16; SL 1986, ch 291, § 5; SL 1989, ch 385, § 14; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2015, ch 224, § 8, eff. Mar. 12, 2015.
46A-1-65. Criteria for selection of projects to receive loans or grants--Regulation of loans or grants.
The Board of Water and Natural Resources may establish by rules enacted pursuant to the provisions of chapter 1-26 criteria for the selection of water resources projects to receive loans or grants pursuant to § 46A-1-64 or to receive other loans or grants from the water and environment fund and for the regulation of the terms, conditions, and administration of such loans or grants.
Source: SL 1982, ch 316, § 3; SDCL Supp, § 46-17A-54.2; SL 1983, ch 315, § 10; SL 1986, ch 291, § 6; SL 1987, ch 328, § 4; SL 1992, ch 254, § 8.
46A-1-66. Interest on loans.
Loans made from the South Dakota Water and Environment Program by the South Dakota Conservancy District shall bear no interest until the Water Management Board has issued its final decision to grant a permit to appropriate water under chapter 46-5 or chapter 46-6 for the project for which the loan is made. Except as provided in § 46A-1-69, beginning with the date of the final decision of the Water Management Board, a loan from the water and environment fund shall bear interest at an annual rate not to exceed ten percent as determined by the Board of Water and Natural Resources. In establishing the interest rate, however, the Board of Water and Natural Resources shall give due regard to the maximum rate of interest which the project may economically afford.
Source: SL 1982, ch 316, § 6A; SDCL Supp, § 46-17A-54.3; SL 1983, ch 315, § 12; SL 1992, ch 254, § 8.
46A-1-67. Term of loans--Capitalization and refinancing of loans for purposes other than construction.
Loans from the South Dakota water and environment fund shall be for a term of years established by the board but may not exceed forty years for construction loans except as provided in § 46A-1-69, the useful life of the equipment for equipment loans, or seven years for loans for other purposes. Loans made for purposes other than construction may, however, be capitalized and refinanced as construction loans when the project proceeds to construction.
Source: SL 1982, ch 316, § 6B; SDCL Supp, § 46-17A-54.4; SL 1983, ch 315, § 13; SL 1992, ch 254, §§ 8, 11; SL 2016, ch 218, § 6, eff. Feb. 18, 2016.
46A-1-67.1. Repayment of loan may be deferred until execution of contract for project construction.
The provisions of § 46A-1-67 notwithstanding, repayment of any water project study loan that has been made or will be made pursuant to chapter 46A-1 by agreement between the South Dakota Conservancy District and any public or private entity may be deferred until the entity has executed a contract with the United States for the purpose of constructing the water project that was the subject of the study loan agreement.
Source: SL 1987, chapter 330, § 2.
46A-1-68. Loan terms set by Legislature.
Sections 46A-1-66 and 46A-1-67 notwithstanding, the terms and conditions for loans for the actual construction of water resources projects contained in the state water resources management system shall be set by an act of the Legislature. This section shall not apply to loans made pursuant to § 46A-1-64.
Source: SL 1982, ch 316, § 6C; SDCL Supp, § 46-17A-54.5.
46A-1-68.1. Deposit of money received from fund.
Any person who receives money from the state water and environment fund may deposit such money and any associated matching funds in the state treasury.
Source: SL 1985, ch 354, § 1; SL 1992, ch. 254, § 8.
46A-1-69. Suspension of annual installment due on loan for irrigation project.
Upon application to the Board of Water and Natural Resources by a party to the loan agreement, the board may suspend payment of any annual installment due on a loan made for the purpose of constructing an irrigation project when the board finds that because the prices of the crops being irrigated in that year have been lower than the costs of producing those crops, the borrower will suffer undue financial hardship. In making such determination, the board shall consider the annual installment due and a reasonable return to the farmer as costs of production and shall further consider the effect previous years' prices should have had on the borrower's current financial condition. Interest shall not accrue on the loan over the period for which repayment is suspended, and the term of the loan shall be extended for the number of years annual payments are suspended.
Source: SL 1983, ch 315, § 11; SDCL Supp, § 46-17A-54.6.
46A-1-70. Financial reporting of projects--Auditing.
It is hereby required, for the purpose of financial reporting, each project to be owned and operated by the district will have its financial affairs, expenditures, and revenues, set out clearly in the financial statement and that the South Dakota auditor general will audit each project on a separate basis and attest to the aforementioned financial condition of each separate project as presented in the financial report. The Board of Water and Natural Resources may accept a financial audit performed by a qualified independent auditor in lieu of an audit by the auditor general. A financing arrangement or financing agreement entered into by the district may contain provisions requiring the person or public entity receiving the financing to submit financial reports and audits.
Source: SL 1972, ch 241, § 56; SL 1979, ch 301, § 11; SL 1981 (2d SS), ch 1, § 19; SDCL Supp, § 46-17A-56.
46A-1-71. Legislative findings regarding need for program of statewide water development and financing.
The Legislature finds that the proposed use of Madison formation water for widespread energy development in Wyoming presents an immediate threat to ground and surface water supplies and agricultural, domestic, environmental, and other beneficial water uses in western South Dakota; that prolonged and existing drought conditions in western South Dakota require the immediate provision of adequate and potable water supplies to municipalities and individual farms and ranches for human and animal consumption, and the failure to provide such water supplies endangers the economic viability of the agricultural industry in western South Dakota and the economy of the state as a whole; that the general lack of any water supply at all and the continued existence of water supplies containing radium, sulfates, iron, manganese, chlorides, fluorides, and nitrates constitutes an immediate and chronic hazard to the health, safety, and welfare of municipal and rural residents in the western portion of the state and requires the provision of adequate quantities of quality water to these residents; and that the economy of the state as a whole has been ravaged by the effects of drought to the extent that a general program of statewide water development and financing is immediately necessary to prevent widespread economic disaster.
Source: SL 1981 (2d SS), ch 1, § 1; SL 1981 (2d SS), ch 2, § 1; SDCL Supp, § 46-17A-3.4.
46A-1-72. Pipeline or aqueduct construction authorized--Use of water.
Construction of a pipeline or aqueduct from a mainstream Missouri reservoir, the Missouri River itself, or adjacent aquifers to one or more communities in South Dakota is hereby authorized for a main delivery pipeline capable of delivering water sufficient to supply or supplement the needs of the communities and other private or commercial users purchasing water from the communities.
Source: SL 1981 (2d SS), ch 2, § 2; SDCL Supp, § 46-17A-3.5; SL 2004, ch 274, § 1.
46A-1-73. Financing of pipelines or aqueducts--Bonds--Loans.
The South Dakota Conservancy District is hereby authorized to issue bonds for pipelines or aqueducts pursuant to § 46A-1-72 in an amount not to exceed five hundred million dollars. However, no single pipeline or aqueduct project may exceed an amount of seventy-five million dollars. The district may enter into a financing agreement to loan the proceeds of the bonds as authorized by law. The financing agreement shall provide for repayment of the loan through payments sufficient to pay the principal of, premium, if any, and interest on the bonds. The loan shall be secured by contracts for the delivery and sale of water and such additional security as is necessary for repayment and to market the bonds. The bonds do not constitute an indebtedness of the state and do not constitute nor give rise to a pecuniary or moral liability of the state or a charge against its general credit or taxing powers. No tax revenues of the state, its people, or any of its political subdivisions may be in any manner obligated to pay for any portion of the construction or financing of the pipeline or aqueduct.
Source: SL 1981 (2d SS), ch 2, § 3; SDCL Supp, § 46-17A-3.6; SL 2004, ch 274, § 2.
46A-1-78. Moratorium on Oahe project construction as public policy of state--Study of alternate projects--Negotiation of settlement for land losses.
It is hereby declared to be the public policy and in the best interests of the State of South Dakota and its people that a moratorium be placed upon further construction of the Oahe Irrigation Project and the congressional authorization be retained until studies and negotiations for acceptable alternate water development projects or a negotiated monetary settlement to compensate for land loss in South Dakota as a result of Missouri mainstem impoundments are completed.
Source: SL 1977, ch 370, § 1; SL 1978, ch 333, § 3; SDCL Supp, § 46-17A-3.1.
46A-1-80.1. Ownership of dredges and money transferred to South Dakota Lakes and Streams Association--Reversion.
All interest, title, and rights of ownership in the two eight-inch dredges and one ten-inch dredge and associated equipment and any money are hereby transferred to the South Dakota Lakes and Streams Association, for use in the restoration of lakes and streams, with priority given to lakes and streams in South Dakota. This transfer is effective only for so long as the dredges are owned by the association and are used for the above purpose. If the South Dakota Lakes and Streams Association ceases to exist or apply the dredges to the above purpose, all right, title, and interest in the dredges revert to the State of South Dakota. In the event of such reversion, the Bureau of Human Resources and Administration shall sell the dredges to the highest bidder, notwithstanding any requirements of chapter 5-24A in regard to minimum bids.
Source: SL 1993, ch 48, § 46; SL 2002, ch 202, § 1; SL 2006, ch 2, § 37; SL 2011, ch 2, § 147; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
46A-1-81. Amount of funds required for dredge maintenance and repair and other expenses.
The Board of Water and Natural Resources, in any contract with the local project sponsor of a dredging project, may establish the amount of funds required for dredge maintenance and repair and other expenses associated with the project, pursuant to section 1A of chapter 369 of the 1986 Session Laws.
Source: SL 1987, ch 331, § 2.
46A-1-82. Environment and water resources trust fund established--Subfund.
The South Dakota environment and water resources trust fund is hereby established. A separate trust subfund shall be created within the South Dakota water and environment fund established pursuant to § 46A-1-60. The purpose for which the trust is established is to provide a perpetual source of revenue to serve all of the purposes for which funds may be expended from the water and environment fund. The principal of the trust fund shall be conserved in perpetuity or until the Legislature shall otherwise provide and may not be expended. Interest earned on the fund shall accrue to the water and environment fund and be disbursed in conformance with § 46A-1-61.
Source: SL 1989, ch 306, § 63; SL 1992, ch 254, § 8.
46A-1-83. State solid waste management program established.
The state solid waste management program is hereby established. Under this program the Board of Water and Natural Resources may grant or loan such funds from the water and environment fund established pursuant to § 46A-1-60 for the purpose of solid waste planning and management. Disbursements made through the solid waste management program shall conform to the provisions of § 46A-1-61 and the rules promulgated pursuant to § 46A-1-84.
Source: SL 1989, ch 306, § 64; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1992, ch 254, § 8; SL 1996, ch 219, § 4.
46A-1-83.2. Expenditure of fees deposited in environment and water resources trust fund--Access to fund--Appropriation.
The secretary may expend such sums as are deposited in the South Dakota environment and water resources trust fund pursuant to § 34A-6-1.17 by any large-scale solid waste disposal facility subject to the fee established in § 34A-6-1.17 as are necessary to conduct the inspections and other activities required under § 34A-6-57. The secretary's access to these funds does not require application or grant from the Board of Water and Natural Resources. Moneys expended by the secretary for these purposes shall be appropriated through the normal budget process.
Source: SL 1992, ch 254, § 50R; SDCL § 34A-6-90; SL 1993, ch 257, § 2.
46A-1-84. Adoption of rules to award financial assistance to sponsors of solid waste management projects--Purpose and preference of awards.
The Board of Water and Natural Resources shall promulgate rules pursuant to chapter 1-26 to award grants, loans, or other forms of financial assistance to sponsors of solid waste management projects. The rules shall base the awarding of grants or loans on a project's reflection of the solid waste management policy and hierarchy established in § 34A-6-1.2, the proposed amount of local matching funds, technical merit, and need for funding assistance.
Grants or loans may be awarded for planning, construction, and operation of solid waste management and recycling facilities. Preference in awarding grants or loans shall be given for projects which reduce the cost and number of landfills through shared facilities or use of innovative or alternative techniques, which are high on the waste management policy hierarchy, which involve areas which are particularly subject to groundwater or surface water contamination, or which will reduce long-term operating, closure, or post-closure costs.
Source: SL 1989, ch 306, § 65; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1992, ch 60, § 2; SL 1992, ch 254, § 50W; SL 1993, ch 256, § 63; SL 1996, ch 219, § 5; SL 1997, ch 254, § 4.
46A-1-88. Conversion of study loans to grants.
The Board of Water and Natural Resources may convert in whole or in part study loans authorized pursuant to § 46A-1-61 to grants. The conversion of study loans to grants is limited to projects that have been determined to be nonfeasible for development or to have insufficient repayment capability. A study loan may be converted by the Board of Water and Natural Resources to a grant for use as part of the nonfederal matching requirement on federally authorized projects.
Source: SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1991, ch 289, § 6.
46A-1-91. Financial assistance for recycling and processing facilities for waste tires.
The board shall provide financial assistance to persons who establish recycling and processing facilities for waste tires, subject to the rules promulgated by the board for the establishment of such facilities and subject to the conditions prescribed in rule by the board for application for and awarding of such financial assistance. No financial assistance may be awarded for incineration facilities.
Source: SL 1992, ch 254, § 29; SL 1996, ch 219, § 2.
46A-1-92. Legislative findings and authorization of certain water development projects.
The Legislature finds that it is in the best interests of South Dakota to further the development of those water projects identified in the state water resources management system and consolidated water facilities plan, consistent with the goals established in § 46A-2-2. The Legislature further finds that pursuant to §§ 46A-1-11 to 46A-1-13, inclusive, the Board of Water and Natural Resources has reviewed the feasibility studies, costs and benefits of certain water development projects and found it to be in the best interest of South Dakota that they receive legislative authorization. Among those projects recognized by the board are Mid-Dakota Rural Water System pursuant to resolution 91-41, Mni Wiconi Rural Water System pursuant to resolution 91-42, Lake Andes-Wagner/Marty II Irrigation Projects pursuant to resolution 91-43, Sioux Falls Flood Control Project pursuant to resolution 91-45, Black Hills Hydrology Study pursuant to resolution 91-46 and James River Improvement Project pursuant to 91-47. Therefore, the Legislature finds it is in the best interest of South Dakota to provide legislative authorization of these projects as provided in § 46A-1-11.
Source: SL 1992, ch 254, § 7.
46A-1-93. Priority in administration of funds.
In administering funds in the water and environment fund established pursuant to § 46A-1-60 and the capital construction fund created in § 5-27-1, the highest priority shall be given to domestic uses of water through the development of public water distribution systems.
Source: SL 1993, ch 48, § 43.
46A-1-94. Perkins County rural water system.
Pursuant to §§ 46A-1-11 to 46A-1-13, inclusive, construction of a twenty-seven million nine hundred ninety-nine thousand two hundred fifty dollar Perkins County rural water system as generally described in the report, Final Engineering Report, for Perkins County Rural Water System Inc., Bison, South Dakota, dated January 2003, is hereby authorized for the purpose of providing safe and adequate municipal, rural, and industrial water supplies in Perkins County.
The Legislature finds that it is in the best interest of the Perkins County rural water system to provide a portion of the nonfederal matching requirements as enumerated in P.L. 106-136 as amended to January 1, 2011, through the state water resources management system revolving loan program. The Board of Water and Natural Resources may provide loans under the state water resources management system revolving loan program in amounts not to exceed a total of four million five hundred thousand dollars to the Perkins County rural water system to provide a portion of the nonfederal matching requirements as enumerated in P.L. 106-136 as amended to January 1, 2011. No disbursements may be made under the loans authorized by this section unless funds are appropriated by the Legislature in conformance with § 46A-1-61.
Notwithstanding the provisions of § 46A-1-66, no interest may accrue until the Board of Water and Natural Resources certifies the completion of the construction of the project as authorized. The initial loan repayment is due and payable one year following the certification of construction completion. Loan terms and conditions shall be set by the Board of Water and Natural Resources.
The Board of Water and Natural Resources may provide grants in amounts not to exceed two million five hundred thousand dollars, or so much thereof as may be necessary, to the Perkins County rural water system project to provide the State of South Dakota's portion of the nonfederal matching requirements for the project. No disbursements may be made under the grant authorized by this section unless funds are appropriated by the Legislature in conformance with § 46A-1-61.
The loan and grant authorized by this section may be increased or decreased by such amounts as may be justified by reason of ordinary fluctuations in development costs incurred after January 1, 2001, as indicated by engineering costs indices applicable for the type of construction involved.
Source: SL 1996, ch 265, § 11; SL 2004, ch 52, § 5, eff. Feb. 25, 2004; SL 2011, ch 165, § 310.
46A-1-95. Clean lakes program, nonpoint source program, water quality monitoring program, and wetland grant program established.
The state clean lakes program, the nonpoint source program, water quality monitoring program, and wetlands grant program are established. All federal pass-through grant funds, not to exceed six million dollars annually, received for use in the programs are hereby continuously appropriated to the secretary of the Department of Agriculture and Natural Resources. Money received for these programs may be used only for purposes authorized by the federal Clean Water Act as amended to January 1, 2009, and shall be provided according to the terms and conditions established by the secretary.
Source: SL 1996, ch 265, § 12; SL 2009, ch 229, § 12, eff. Mar. 4, 2009; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-1-96. Special purpose water district loan program established--Funding.
The special purpose water district loan program is hereby established to provide funds to any newly formed water development district, water project district, watershed district, irrigation district, or sanitary district for administrative and operating expenses during its first year of operation. Funds for the program, not to exceed fifty thousand dollars annually, are hereby continuously appropriated to the Board of Water and Natural Resources out of the money in the South Dakota water and environment fund established pursuant to § 46A-1-60. All money disbursed under this program shall be in the form of loans not to exceed a term of three years. The Board of Water and Natural Resources shall execute a loan agreement with participating districts under such terms, conditions, and repayment schedules as the board may determine. Funds shall be disbursed on warrants drawn by the state auditor on vouchers approved by the secretary of the Department of Agriculture and Natural Resources.
Source: SL 1996, ch 265, § 21; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-1-97. Board authorized to contract for financial services.
In administering its programs as authorized in this chapter and chapter 46A-2, the board may enter into contracts or agreements with any department, agency, or instrumentality of the United States or this state, with regulated lenders as defined in § 54-3-14, or with trustees appointed pursuant to this chapter for the servicing and processing of loans or other forms of financial assistance or credit enhancement.
Source: SL 1997, ch 254, § 1.
46A-1-98. Confidentiality of trade secrets or commercial or financial information received by board or department.
Any documentary material or data made or received by the board or the Department of Agriculture and Natural Resources for the purpose of furnishing financial assistance to a business pursuant to the provisions of §§ 34A-6-81 to 34A-6-85.1, inclusive; 46A-1-83 to 46A-1-84, inclusive; and 46A-1-91, to the extent that the material or data consists of trade secrets or commercial or financial information regarding the operation of such business, is not a public record, and is exempt from disclosure. Any discussion or consideration of such trade secrets or commercial or financial information by the board may be done in executive session closed to the public.
Source: SL 1997, ch 254, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-1-99. Additional financial assistance for solid waste management and recycling facilities.
In addition to the grants and loans provided for in §§ 34A-6-85 and 46A-1-83, the board may provide other forms of financial assistance or credit enhancement to eligible applicants and projects for the planning, construction, and operation of solid waste management and recycling facilities. The board may enter into contracts or agreements with any department, agency, or instrumentality of the United States or this state, or with regulated lenders as defined in § 54-3-14 for that purpose.
Source: SL 1997, ch 254, § 3.
46A-1-100. Definition of terms.
Terms used in §§ 46A-1-100 to 46A-1-106, inclusive, mean:
(1) "Brownfields revitalization and economic development program," a program to provide funding to assist in the assessment, cleanup, and redevelopment of brownfields sites;
(2) "Brownfields site," real property, the expansion, redevelopment, economic development, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant;
(3) "Petroleum," petroleum substances, oil, gasoline, kerosene, fuel oil, oil sludge, oil refuse, oil mixed with other wastes, crude oils, substances, or additives to be utilized in the refining or blending of crude petroleum or petroleum stock, and any other oil or petroleum substance;
(4) "Petroleum contaminated site," a site contaminated by petroleum; and
(5) "Real property," residential, commercial, or industrial properties.
Source: SL 2004, ch 275, § 1.
46A-1-101. State brownfields revitalization and economic development program established--Subfunds created--Deposit and use of money.
The state brownfields revitalization and economic development program is hereby established. A brownfields revolving loan subfund and a brownfields assessment and cleanup subfund are created within the water and environment fund established pursuant to § 46A-1-60. The subfunds shall be maintained separately; and all money for use in the program shall be deposited into the subfunds, including the nonadministrative portion of all federal brownfields revitalization program grants, all repayments of assistance awarded from the subfunds, interest on investments made on money in the subfunds, proceeds of discretionary bond issues allowed by § 46A-1-31, and principal and interest on loans made from the subfunds. Money in the subfunds may be used only for purposes authorized under federal law. The subfunds may be pledged or assigned by the district to or in trust for the holders of the bonds of the district and may be transferred to and held by a trustee or trustees pursuant to § 46A-1-39.
Source: SL 2004, ch 275, § 2.
46A-1-102. Disbursement and administration of money from subfunds--Rules--Application of provisions.
Money from the brownfields revitalization and economic development program subfunds shall be disbursed and administered according to rules promulgated by the Board of Water and Natural Resources pursuant to chapter 1-26, § 46A-1-65, and the provisions of §§ 46A-1-100 to 46A-1-106, inclusive. The provisions of §§ 46A-1-61 to 46A-1-69, inclusive, do not apply to the brownfields revitalization and economic development program subfunds of the water and environment fund or grants and loans from the subfunds made under the brownfields revitalization and economic development program described in §§ 46A-1-101 to 46A-1-104, inclusive.
Source: SL 2004, ch 275, § 3.
46A-1-103. Promulgation of rules by board--Content.
The Board of Water and Natural Resources shall promulgate rules pursuant to chapter 1-26 to implement the provisions of §§ 46A-1-100 to 46A-1-106, inclusive, consistent with the requirements of federal law in order for an approved brownfields revitalization and economic development program to become eligible for grant funds from the United States Environmental Protection Agency. The rules shall include criteria and procedures for the selection of projects to receive funds from the brownfields revitalization and economic development program and for the administration of the program including the terms of settlement for program participants pursuant to § 34A-10-17.
Source: SL 2004, ch 275, § 4.
46A-1-104. Continuous appropriation of brownfields revitalization and economic development program subfunds--Purpose.
The brownfields revitalization and economic development program subfunds are hereby continuously appropriated to the South Dakota Board of Water and Natural Resources. Money received for these programs may be used only for purposes authorized by the federal Small Business Liability Relief and Brownfields Revitalization Act (P.L. 107-118) as amended to January 1, 2011.
Source: SL 2004, ch 275, § 5; SL 2011, ch 165, § 311.
46A-1-105. Establishment of brownfields program by eligible entity.
Any eligible entity may establish a brownfields program to prevent, assess, safely clean up, promote the economic development of, and sustainably reuse eligible brownfields sites as authorized in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended to January 1, 2011, and in the Small Business Liability Relief and Brownfields Revitalization Act, P.L. 107-118 as amended to January 1, 2011.
Source: SL 2004, ch 275, § 6; SL 2011, ch 165, § 312.
46A-1-106. Powers of eligible entity establishing brownfields program.
Any eligible entity establishing a brownfields program may exercise all powers necessary or appropriate to carry out the purposes of §§ 46A-1-100 to 46A-1-106, inclusive, including the following:
(1) To acquire by lease, purchase, gift, or other lawful means and hold in its corporate name or use and control as provided by law both real and personal property and easements and rights-of-way within or without the corporate limits for all purposes authorized by §§ 46A-1-100 to 46A-1-106, inclusive, or necessary to the exercise of any power granted in §§ 46A-1-100 to 46A-1-106, inclusive;
(2) To convey, sell, give, dispose of, or lease both the personal and real property of the municipality or county as provided by §§ 46A-1-100 to 46A-1-106, inclusive;
(3) To borrow money and to issue certificates, warrants, general obligation bonds and non-ad valorem tax bonds for purposes of §§ 46A-1-100 to 46A-1-106, inclusive;
(4) To accept funds, property, and services or other assistance, financial or otherwise, from federal, state, and other public and private sources to carry out the purposes of §§ 46A-1-100 to 46A-1-106, inclusive;
(5) To contract or cooperate with any person, the state, or any political subdivision of the state, any federal agency, or any private or public entity to carry out the purposes of §§ 46A-1-100 to 46A-1-106, inclusive;
(6) To plan, develop, construct, acquire, operate, clean, maintain, repair, alter, renovate, salvage, demolish, secure, abandon, consolidate, reclaim, or gather data and information concerning any brownfields site, or any related development, structure, or facility necessary to carry out the purposes of §§ 46A-1-100 to 46A-1-106, inclusive;
(7) To apply for available grant funds and other governmental and nongovernmental financing options to promote the cleanup, reuse, revitalization, and economic development of the property consistent with the purposes of §§ 46A-1-100 to 46A-1-106, inclusive; and
(8) To do and perform all acts authorized in §§ 46A-1-100 to 46A-1-106, inclusive, and all other acts necessary and proper for carrying out and exercising the powers granted by §§ 46A-1-100 to 46A-1-106, inclusive.
Source: SL 2004, ch 275, § 7.
CHAPTER 46A-2
SOUTH DAKOTA CONSERVANCY DISTRICT
46A-2-1 Creation of South Dakota Conservancy District--Boundaries--Powers.
46A-2-2 Purposes for which district created.
46A-2-3 Intent to relate financing of water resources projects to degree of benefits received.
46A-2-4 Definition of terms.
46A-2-5 Board of directors abolished--Performance of functions.
46A-2-6 Offices of district.
46A-2-7 Quorum of board--Actions on notes or bonds.
46A-2-8 Rules--Delegation of authority by board.
46A-2-9 46A-2-9, 46A-2-10. Repealed by SL 2013, ch 166, §§ 117, 118.
46A-2-11 Board may sue and be sued.
46A-2-12 Legal adviser of board--Cooperation of state agencies at request of board.
46A-2-13 Coordination of water resources project activities.
46A-2-14 Acquisition and disposition of property necessary for water resources projects--Use by local project sponsors.
46A-2-15 Powers of district with respect to project owned and operated by district or regulated public water utility.
46A-2-16 Leverage lease agreements by board--District as lender and lessee--Sublease of equipment.
46A-2-17 Eminent domain--Exercise of power by board.
46A-2-18 Acquisition of water rights by district--Rights to appropriate water for energy industry use.
46A-2-19 Transfer of water rights or permits to appropriate water for energy industry use--Contract provisions.
46A-2-20 Resource development works, construction, operation and maintenance--Exercising powers in water development districts.
46A-2-21 Interim financing--Eminent domain power--Limitation.
46A-2-22 Contract for payment of services or performance of work--Board as party--Amount limited to annual appropriation.
46A-2-23 Construction of water facilities--Prior approval of water resources project plans.
46A-2-24 Cooperation with other agencies in development of water resources projects.
46A-2-25 Acceptance of assistance to aid and promote water resources projects.
46A-2-26 Cooperation and performance of obligations entered into with United States for water resources projects.
46A-2-27 46A-2-27. Repealed by SL 1987, ch 29, § 58
46A-2-28 Federal contracts for multi-purpose projects--Mandatory contract terms.
46A-2-29 Federal contracts for multi-purpose projects--Approval of contract provisions.
46A-2-30 Federal loans contracted by district.
46A-2-31 Contracts with United States for marketing federal water service--State interests not prejudiced--Purpose--Recommendation to Legislature.
46A-2-32 46A-2-32. Repealed by SL 1984 (SS), ch 1, § 62
46A-2-33 Repealed
46A-2-34 Generation and sale of hydroelectric power authorized.
46A-2-35 Appropriations to accomplish duties of district--Request to state Legislature.
46A-2-36 Powers granted to district and water development districts--Construction.
46A-2-37 Construction of conservancy district law--Supplementary to laws governing water management board--Laws relating to irrigation, conservancy, drainage, soil conservation, or watershed districts unaffected.
46A-2-38 Areas outside development districts.
46A-2-1. Creation of South Dakota Conservancy District--Boundaries--Powers.
There is hereby created within the State of South Dakota, a conservancy district, to be known as the "South Dakota Conservancy District." The boundaries of the district shall coincide in all particulars with the boundaries of the State of South Dakota. Such district is a governmental agency, body politic and corporate with authority to exercise the powers specified in this chapter.
Source: SL 1959, ch 453, § 5; SDC Supp 1960, § 61.1405; SDCL, § 46-17-4; SL 1987, ch 29, § 56.
46A-2-2. Purposes for which district created.
The limited supply of, and increasing demand for water available within this state and the United States for agricultural and other beneficial uses and the more effective development and utilization of the land and water resources of this state makes necessary the fullest use of waters available to South Dakota and its citizens for the protection and preservation of the benefits therefrom, including opportunity for greater economic security, protection of health, property, and enterprise, and promotion of the prosperity and general welfare of the people of South Dakota. This involves and requires the exercise of the sovereign powers of the state and a public purpose, the accomplishment of which, among other things, demands, and is necessary, that the South Dakota Conservancy District be created in the manner herein provided so that construction of water resource facilities for the conservation, storage, distribution, and utilization of water for multiple purposes may commence. It is a matter of public policy that the district shall insofar as prudently possible market the power generated from hydroelectric projects constructed by reason of this chapter in such a manner as to afford all of the citizens of the State of South Dakota equal and nondiscriminatory rights to share in such power. To the extent prudently possible all of the citizens of the State of South Dakota who are customers of all electric suppliers shall be treated equally with no preferential right being given which would discriminate in the cost of such power being used by such citizens of this state. It is also a matter of public policy that to the extent reasonably prudent that power generated under the authority of this chapter shall be used within the State of South Dakota before being sold outside the State of South Dakota. Encouragement, promotion, and responsibility for the development of such use shall be accomplished by providing for state water resources planning in order:
(1) To provide for the future economic welfare and prosperity of the people of this state;
(2) To provide for the irrigation of lands within the sections of a district periodically afflicted with drought, and to stabilize the production of crops thereon;
(3) To replenish and restore the depleted waters of lakes, rivers, streams, and underground waters in the district, and to stabilize the flow of streams, levels of lakes, and levels and pressures of underground waters;
(4) To reserve within the district for present or future beneficial uses, all waters and particularly waters impounded on the Missouri River, within the boundaries of the state, except to the extent that the construction of facilities for the diversion of water outside this state will make substantial water available for use within this state not otherwise available or will directly benefit the people of this state economically or otherwise;
(5) To provide and enhance for beautification, flood protection, recreation, fish and wildlife benefits, municipal and industrial water supply, water quality enhancement, scenic rivers, navigation, erosion control, and in all other ways to conserve, regulate, and control the waters in this state;
(6) To protect and improve the quality of the waters of the state as opportunity permits;
(7) To provide for the generation and sale of hydroelectric power from projects which may include provisions for irrigation and municipal, rural, or industrial water supplies;
(8) To prepare and submit to the Legislature and the Governor not later than the first legislative day of its session in 1975, a comprehensive statewide water plan, based on competent study of creative and innovative utilization of the water resources within the boundaries of South Dakota in order to develop a state water resources development system; a yearly progress report to the plan and system with possible recommendation to submit to the Legislature and the Governor by the first legislative day of each legislative session; and, to update the plan and system, not less than once each four years, and to submit the updated plan to the Legislature and the Governor; and
(9) To plan and coordinate with any Indian tribe of this state, the joint development of water resources whenever such joint action is possible, appropriate and in the best interests of the state and of the respective tribe.
Source: SL 1959, ch 453, § 1; SDC Supp 1960, § 61.1401; SDCL, § 46-17-1; SL 1972, ch 240, § 1; SL 1972, ch 241, § 1; SL 1981 (2d SS), ch 1, § 16; SL 1982, ch 313, § 1; SL 1983, ch 321, § 9.
46A-2-3. Intent to relate financing of water resources projects to degree of benefits received.
It is the intent of this chapter and chapters 46A-3A to 46A-3E, inclusive, to relate, reasonably and equitably, the financing of water resources projects to the degree of benefits received from such water resources projects by:
(1) Provisions whereby statewide financing will be forthcoming for those phases of water resources development which concern the general welfare of the people in the state and result in statewide benefits;
(2) Provisions whereby specific areas will finance those phases of water resources development which provide general benefits to the people in such areas;
(3) Provisions whereby water users or direct beneficiaries of water control and regulation will finance those phases of water resources development which provide water for use or which protect or enhance the value of property;
(4) Provisions whereby assignment of administrative jurisdiction and responsibility for the various phases of water resources development are related to such variable degrees of benefits.
Source: SL 1959, ch 453, § 3; SDC Supp 1960, § 61.1403; SDCL, § 46-17-2; SL 1984 (SS), ch 1, § 65.
46A-2-4. Definition of terms.
Terms used in this chapter and chapters 46A-3A to 46A-3E, inclusive, mean:
(1) "Benefits," the favorable effects, tangible or intangible, that accrue or are estimated to accrue to any person or the public by establishment of water resources projects;
(2) "Board," the governing board of the South Dakota Conservancy District which is the Board of Water and Natural Resources;
(3) "Department," the Department of Agriculture and Natural Resources;
(4) "Equalized assessed valuation," the sum of:
(a) The value derived by dividing the full and true value as certified to the county of all property within that county, included in the water development district, by the median agricultural and nonagricultural ratios for all sales in that county as published in the current annual report of the property tax division of the South Dakota Department of Revenue as required pursuant to § 10-11-60; and
(b) The full and true value of all centrally assessed utility property within that county included in the water development district;
(5) "Facilities plan" or "state water facilities plan," those parts of the statewide water plan established by the Board of Water and Natural Resources;
(6) "Person," any natural person, firm, partnership, limited liability company, association, or corporation but not a public body or political subdivision;
(7) "Public entity," a county, township, municipality, political or administrative subdivision of state government, subdistrict, irrigation district, water user district, watershed district, drainage district, soil conservation district, or other public body recognized by state law;
(8) "Public hearings" or "hearings," formally scheduled and conducted meetings for purposes of determining courses of action concerning district or water development district business;
(9) "South Dakota Conservancy District" or "district," the public corporate entity established by this chapter;
(10) "Taxable property in the water development district," the sum of the taxable valuations of all property included in the water development district as variously established by the respective counties pursuant to § 10-11-25;
(11) "Total water development district equalized assessed valuation," the sum of the equalized assessed valuations of all the counties or portions of counties within the water development district;
(12) "Water development district" or "(Name) Water Development District," a subdivision of the district established as provided in chapters 46A-3A to 46A-3E, inclusive, for the purpose of planning and coordinating water resources development activity and providing financial and other assistance to water resources projects or development;
(13) "Water development district board of directors" or "water development district board," the governing officials who exercise the corporate powers of a water development district;
(14) "Water resources projects" or "water resources development," contracts for the marketing of water service or the facilities by which water is controlled, regulated, reclaimed, or made available for use, or the quality of which is protected and improved, including any wells, reservoirs, dams, water reclamation facilities, wastewater treatment facilities, intake structures, pumping stations, equipment, rights-of-way or easements, works or facilities, land and buildings or other real or personal property intended either to generate or sell hydroelectric power from projects which may include provisions for irrigation, municipal, rural, or industrial water supplies or to control, regulate, drain, reclaim, dispose of, pump, store, treat, purify, distribute, deliver, put into aquifers or water courses, or otherwise make available water for any beneficial use. The term includes the studies, investigations, plans, construction, operation, or maintenance associated with the facilities, and debt service reserve funds, funds to provide capitalized interest and any costs incurred in connection with the issuance of obligations to finance any of the foregoing.
Source: SL 1959, ch 453, § 4; SDC Supp 1960, § 61.1404; SDCL § 46-17-3; SL 1972, ch 240, § 2; SL 1977, ch 371, § 1; SL 1979, ch 301, § 1; SL 1980, ch 306, § 1; SL 1980, ch 310, § 1; SL 1982, ch 313, § 2; SL 1983, ch 322, §§ 1 to 3; SL 1984, ch 289; SL 1984 (SS), ch 1, § 61; SL 1994, ch 351, § 112; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2005, ch 10, § 39; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-2-5. Board of directors abolished--Performance of functions.
The board of directors of the South Dakota Conservancy District is abolished, and all its functions shall be administered by the department and Board of Water and Natural Resources, as provided by §§ 1-41-13 and 1-41-13.1.
Source: SL 1973, ch 2, § 123; SDCL Supp, § 46-17-5.1; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
46A-2-6. Offices of district.
The Department of Agriculture and Natural Resources may equip, operate, and maintain an office as the principal place of business for the district and to establish other offices as required.
Source: SL 1959, ch 453, § 8; SDC Supp 1960, § 61.1408 (6); SDCL § 46-17-10; SL 2011, ch 165, § 313; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-2-7. Quorum of board--Actions on notes or bonds.
A majority of the members of the Board of Water and Natural Resources shall constitute a quorum for transaction of district business.
Actions of the district concerning notes or bonds shall be authorized by resolution approved by a majority vote of the members of the board.
Source: SL 1959, ch 453, § 6; SDC Supp 1960, § 61.1406; SDCL, § 46-17-11; SL 1979, ch 301, § 3.
46A-2-8. Rules--Delegation of authority by board.
The Board of Water and Natural Resources may promulgate rules pursuant to chapter 1-26 governing its procedures and internal affairs and may delegate authority to act on behalf of the district.
Source: SL 1959, ch 453, § 6; SDC Supp 1960, § 61.1406; SDCL, § 46-17-12; SL 1984 (SS), ch 1, § 65; SL 1986, ch 27, § 48; SL 1987, ch 328, § 2; SL 1993, ch 256, § 65.
46A-2-11. Board may sue and be sued.
The Board of Water and Natural Resources may sue and be sued in the name of the district.
Source: SL 1959, ch 453, § 8; SDC Supp 1960, § 61.1408 (1); SDCL § 46-17-15; SL 2011, ch 165, § 314.
46A-2-12. Legal adviser of board--Cooperation of state agencies at request of board.
The attorney general shall act as the legal adviser of the Board of Water and Natural Resources. All other state agencies shall assist and cooperate with the conservancy district, at the request of the board.
Source: SL 1959, ch 453, § 7; SDC Supp 1960, § 61.1407; SDCL, § 46-17-8.
46A-2-13. Coordination of water resources project activities.
The Board of Water and Natural Resources shall coordinate all federal, state, and local water resources project activities in the state in order to assure that the optimum over-all benefits will accrue from the construction and operation of water conservation, control and beneficial use facilities and to ensure maximum consideration of local needs and desires.
Source: SL 1959, ch 453, § 9; SDC Supp 1960, § 61.1409 (1); SDCL, § 46-17-16.
46A-2-14. Acquisition and disposition of property necessary for water resources projects--Use by local project sponsors.
The Board of Water and Natural Resources may acquire, under the provisions of this chapter and chapters 46A-3A to 46A-3E, inclusive, by purchase or lease, all real and other property as may be necessary for the construction, maintenance, and operation of any water resources project; hold and use the property, lease, or otherwise dispose of any part of the property; or sell the property if not required for water resources project use, and no longer necessary to its use. The board may enter into rental or other agreements with local project sponsors to allow local project sponsors to use property controlled by the board or Department of Agriculture and Natural Resources according to terms and conditions specified by the board. In carrying out this section the board shall follow the procedures required in the case of counties under the laws of South Dakota.
Source: SL 1959, ch 453, § 8; SDC Supp 1960, § 61.1408 (2); SDCL § 46-17-17; SL 1984 (SS), ch 1, § 65; SL 1986, ch 370, § 1; SL 2011, ch 165, § 315; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-2-15. Powers of district with respect to project owned and operated by district or regulated public water utility.
The district may, with respect to any project owned and operated by the district or a regulated public water utility:
(1) Establish and fix the rate or rates to be charged by the project owner for the furnishing or sale of all water from the project;
(2) Establish and fix the charge or charges for water meters or other means necessary for determining the consumption of water from the project; and
(3) Require that water for such beneficial uses in this state as the district may determine be made available along the route of the project in this state, in such amounts as the district may determine, up to a maximum of twenty-five percent of the capacity of any privately owned project, to any residential user in this state, upon the payment by the residential user of all costs of tapping into and removing water from the project.
The district may promulgate rules pursuant to chapter 1-26 for the exercise of the powers enumerated in this section, including procedures for the establishment of rates and charges and for making available water from the project.
Source: SL 1981 (2d SS), ch 1, § 7; SDCL Supp, § 46-17A-2.1; SL 1993, ch 256, § 66; SL 1997, ch 208, § 3.
46A-2-16. Leverage lease agreements by board--District as lender and lessee--Sublease of equipment.
The Board of Water and Natural Resources may become a party to a leverage lease agreement whereby the district loans up to eighty percent of the cost of construction and equipment for a water development project sponsored by or built for a political subdivision of the State of South Dakota to a person or persons who agrees to own in fee simple such works and equipment and lease them back to the district or political subdivision. The district may be both lender and lessee on such leverage lease, and, in the event it is lessee, it may sublease such works and equipment.
Source: SL 1977, ch 369, § 1; SDCL Supp, § 46-17-17.1.
46A-2-17. Eminent domain--Exercise of power by board.
The Board of Water and Natural Resources may exercise the power of eminent domain as provided by law only when necessary for the purposes of acquiring and securing any right, title, interest, estate, or easement necessary to carry out the duties imposed by this chapter, which the district is unable to acquire by negotiation.
Source: SL 1959, ch 453, § 8; SDC Supp 1960, § 61.1408 (3); SDCL, § 46-17-18; SL 1987, ch 29, § 57.
46A-2-18. Acquisition of water rights by district--Rights to appropriate water for energy industry use.
The district may acquire by appropriation, or by purchase, exchange, or gift, such water rights as are necessary for the development of its water resource projects, including projects for which it has secured authority to execute financing agreements pursuant to § 46A-1-49. Notwithstanding any other provision of law, the district may acquire, by obtaining a permit or permits from the water management board, rights to appropriate water for energy industry use for marketing to energy industry users for such consideration and under such terms and conditions as are fixed by contract or instrument of conveyance. The district may not acquire rights to appropriate more than fifty thousand acre-feet of water for energy industry use per year.
Source: SL 1981 (2d SS), ch 1, § 3; SDCL Supp, § 46-17-18.1.
46A-2-19. Transfer of water rights or permits to appropriate water for energy industry use--Contract provisions.
The district may sell, grant, convey, assign, lease, or otherwise transfer perfected water rights or permits to appropriate water for energy industry use to energy industry users for such consideration and under such terms and conditions as are fixed by contract or instrument of conveyance. The contracts represent the entire financial obligation for the use of water owed by an energy industry user to the State of South Dakota and no further fee, tax, or assessment may be levied against the user except for an ad valorem tax as assessed under chapter 10-37. Any such contract may provide that for failure to perform any condition of performance, for breach, for failure of consideration, or for failure to perform any other contractual obligation, the transfer is void. If the Board of Water and Natural Resources determines that such a failure to perform a condition of performance or breach has occurred, it may file with the division of water rights a notice to cancel the permit or license evidencing the transfer after complying with any notice of breach provision or other condition precedent to cancellation specified in the contract.
Source: SL 1981 (2d SS), ch 1, § 4; SDCL Supp, § 46-17-18.2; SL 2011, ch 165, § 316.
46A-2-20. Resource development works, construction, operation and maintenance--Exercising powers in water development districts.
The Board of Water and Natural Resources may construct, operate, and maintain water resources development works not within a water development district and may become a party to agreements or contracts with federal agencies, public entities, local groups, or persons covering construction, operation, and maintenance of water resources development works. This section may not be construed to deny the district the right to exercise any of its powers within a water development district:
(1) When it has entered into a financing agreement pursuant to § 46A-1-49, provided that any water development district in which the project to be financed pursuant to the financing agreement will be located or any water development district that, as determined by the Board of Water and Natural Resources, will be affected by the project has ratified by resolution the resolution of the board recommending construction or authorization of the project;
(2) When it has entered into a financing arrangement pursuant to § 46A-1-18 without the approval of any water development district; or
(3) When consented to or requested by the water development district.
Source: SL 1959, ch 453, § 9; SDC Supp 1960, § 61.1409 (2); SDCL, § 46-17-19; SL 1980, ch 310, § 13; SL 1981 (2d SS), ch 1, § 10; SL 1984 (SS), ch 1, § 64; SL 1986, ch 370, § 2.
46A-2-21. Interim financing--Eminent domain power--Limitation.
The district, may, notwithstanding § 46A-2-20, exercise the power of eminent domain as provided by law if necessary for the purposes of acquiring and securing any right, title, interest, estate, or easement necessary for any project for which the district has entered into a financing arrangement under § 46A-1-18, which cannot be acquired by negotiation. However, this power may not be exercised in connection with any project that may provide or assist in providing water for use in a coal slurry pipeline.
Source: SL 1979, ch 301, § 6; SDCL Supp, § 46-17A-23.5; SL 2011, ch 165, § 317.
46A-2-22. Contract for payment of services or performance of work--Board as party--Amount limited to annual appropriation.
The Board of Water and Natural Resources may become a party to long or short-term contracts as principal or guarantor for payment for such services or for performance of construction, operation, or maintenance work as is deemed beneficial or advisable by the board. However, nothing contained in this chapter or chapters 46A-3A to 46A-3E, inclusive, permits the board to enter into any contracts or agreements that obligate the State of South Dakota beyond the extent of the board's then current annual appropriation.
Source: SL 1959, ch 453, § 9; SDC Supp 1960, § 61.1409 (2); SDCL § 46-17-20; SL 1984, ch 12, § 71; SL 1984 (SS), ch 1, § 65; SL 2011, ch 165, § 318.
46A-2-23. Construction of water facilities--Prior approval of water resources project plans.
The Board of Water and Natural Resources may require approval of water resources project plans prior to construction of conservation, control, or beneficial use of water facilities.
Source: SL 1959, ch 453, § 9; SDC Supp 1960, § 61.1409 (1); SDCL, § 46-17-21.
46A-2-24. Cooperation with other agencies in development of water resources projects.
The Board of Water and Natural Resources may cooperate with and assist any or all federal agencies, public entities, and persons engaged in studying, investigating, planning, or otherwise considering the possibilities in the development of water resources projects for conservation, control, and beneficial use of water, including domestic water supply. The board may perform independent studies and investigations, or otherwise consider the benefits of possible water resources projects.
Source: SL 1959, ch 453, § 9; SDC Supp 1960, § 61.1409 (1); SDCL, § 46-17-22.
46A-2-25. Acceptance of assistance to aid and promote water resources projects.
The Board of Water and Natural Resources may accept funds, property, and services or other assistance, financial or otherwise, from federal, state, and other public sources for the purpose of aiding and promoting the construction, maintenance, and operation of any water resource project.
Source: SL 1959, ch 453, § 8; SDC Supp 1960, § 61.1408 (4); SL 1964, ch 223, § 2; SDCL § 46-17-23; SL 2011, ch 165, § 319.
46A-2-26. Cooperation and performance of obligations entered into with United States for water resources projects.
The Board of Water and Natural Resources may cooperate with and may furnish assurances of cooperation and act as principal and guarantor or either to enter into a contract with the United States of America, with public entities of South Dakota, or with persons for the performance of obligations entered into with the United States for the construction, operation, or maintenance of water resources projects or for accomplishment of the purposes and intents of this chapter and chapters 46A-3A to 46A-3E, inclusive.
Source: SL 1959, ch 453, § 8; SDC Supp 1960, § 61.1408 (5); SDCL § 46-17-24; SL 1984 (SS), ch 1, § 65; SL 2011, ch 165, § 320.
46A-2-28. Federal contracts for multi-purpose projects--Mandatory contract terms.
No conservancy district, water development district, irrigation district, or other political subdivision may enter into a contract with the federal government for construction, management, or maintenance of an irrigation or other multi-purpose water project, unless the contract contains provisions to effectuate the following requirements:
(1) That the state and local contracting entity shall assist in identifying lands to be purchased or used for project features;
(2) That state and local contracting entity representatives shall accompany federal representatives during land acquisition negotiations in order to protect state and local interests;
(3) That land owners directly affected by water diversion and other project features be given preference for water use within the purposes for which the project was designed and authorized;
(4) That the state and the local contracting entity shall be involved early in all federal project planning to assure that project features are designed in such a manner as to minimize the need for wildlife mitigation and land acquisition; and
(5) That wildlife benefits of project features shall be considered in determining overall project impact on wildlife.
Source: SL 1980, ch 307, § 1; SDCL Supp, § 46-17-24.2; SL 1984 (SS), ch 1, § 64.
46A-2-29. Federal contracts for multi-purpose projects--Approval of contract provisions.
No contract affected by § 46A-2-28 is valid unless the provisions of that contract have been approved by the Board of Water and Natural Resources.
Source: SL 1980, ch 307, § 2; SDCL Supp, § 46-17-24.3.
46A-2-30. Federal loans contracted by district.
The district may contract loans and borrow money from the United States upon such conditions and terms as may be agreed to subject to legislative authorization therefor.
Source: SL 1972, ch 241, § 23; SDCL Supp, § 46-17A-22.
46A-2-31. Contracts with United States for marketing federal water service--State interests not prejudiced--Purpose--Recommendation to Legislature.
The district, upon recommendation by the Board of Water and Natural Resources and approval of the Governor, may enter into contracts with the United States for the marketing of water service from federal projects. No such contract entered into by the state may prejudice state interests and rights to water resources within the boundaries of the state pursuant to state and federal statutes. Such contracts shall be for the express purpose of compensating the United States for the storage facilities provided by federal water projects. Before the implementation the contracts shall be recommended to the Legislature for inclusion in the state water resources management system pursuant to chapter 46A-1.
Source: SL 1977, ch 371, § 2; SDCL Supp, § 46-17A-22.4; SL 1984, ch 12, § 72; SL 2011, ch 165, § 321.
46A-2-33. Repealed.
Source: SDC Supp 1960, § 61.1408 (9) as added by SL 1964, ch 223, § 3; SDCL § 46-17-26; SL 1980, ch 310, § 17; SL 2011, ch 165, § 322; SL 2021, ch 43, § 26.
46A-2-34. Generation and sale of hydroelectric power authorized.
The Board of Water and Natural Resources may generate or sell hydroelectric power.
Source: SL 1959, ch 453, § 8; SDC Supp 1960, § 61.1408 (8); SDCL, § 46-17-27; SL 1982, ch 313, § 3.
46A-2-35. Appropriations to accomplish duties of district--Request to state Legislature.
For accomplishment of the duties of the district as herein described the Board of Water and Natural Resources shall present requests to the state Legislature for appropriations adequate to carry out the responsibilities of the district.
Source: SL 1959, ch 453, § 10; SDC Supp 1960, § 61.1410; SDCL, § 46-17-28.
46A-2-36. Powers granted to district and water development districts--Construction.
The powers herein granted to the South Dakota Conservancy District, as established hereby, and water development districts, as may be established, shall be construed as those reasonably necessary to accomplish the purpose and intent of this chapter.
Source: SDC Supp 1960, § 61.1402 as added by SL 1964, ch 223, § 1; SDCL, § 46-17-29; SL 1984 (SS), ch 1, § 64; SL 1987, ch 29, § 59.
46A-2-37. Construction of conservancy district law--Supplementary to laws governing water management board--Laws relating to irrigation, conservancy, drainage, soil conservation, or watershed districts unaffected.
The provisions of this chapter and chapters 46A-3A to 46A-3E, inclusive, do not abrogate or limit the rights, powers, duties, and functions of the State Water Management Board, but are supplementary to and in aid of such rights, powers, duties, and functions. Chapters 46A-3A to 46A-3E, inclusive, do not limit or affect the laws of this state relating to the organization and maintenance of irrigation districts, water user districts, drainage districts, soil conservation districts, or watershed districts. Chapters 46A-3A to 46A-3E, inclusive, do not infringe upon or establish any rights superior to any existing water rights, and do not preclude the establishment of any such or similar public entity wholly or in part within the boundaries of the district created by this chapter.
Source: SL 1959, ch 453, § 2; SDC Supp 1960, § 61.1402; SDCL § 46-17-30; SL 1984 (SS), ch 1, § 65; SL 2011, ch 165, § 323.
46A-2-38. Areas outside development districts.
For benefit of areas of the state not included within one or more water development districts, the Board of Water and Natural Resources, in performing its statewide water planning function pursuant to subdivision 46A-2-2(8), shall provide adequate opportunity for expression of the preferences of local people through public hearings. In establishing the statewide water plan and in allocation of funds available to the district, the board may grant no preference to an entity because of its location within a water development district.
Source: SL 1984 (SS), ch 1, § 63.
CHAPTER 46A-3A
WATER DEVELOPMENT DISTRICTS--ESTABLISHMENT
46A-3A-1 Establishment of districts--Procedure--Political subdivision status.
46A-3A-1.1 Districts to promote conservation, development and management of resources--Serve as clearinghouse for water quality and supply projects.
46A-3A-2 Central Plains district.
46A-3A-3 East Dakota Water Development District.
46A-3A-4 James River district.
46A-3A-5 South Central district.
46A-3A-6 West Dakota district.
46A-3A-7 West River district.
46A-3A-7.1 Vermillion Basin District.
46A-3A-8 Petition for election on establishment of district.
46A-3A-9 Contents and form of petition.
46A-3A-10 Approval of petition--Referral to election.
46A-3A-11 Ballots on establishment.
46A-3A-12 Conduct of election.
46A-3A-13 Separate districts for election--Vote required.
46A-3A-14 Approval by only some of election districts--Effect--Withdrawal from district.
46A-3A-15 Resolution creating district--Filing.
46A-3A-16 Additions and withdrawals of territory.
46A-3A-17 Costs of elections.
46A-3A-1. Establishment of districts--Procedure--Political subdivision status.
In order to attain the objectives and intent of chapters 46A-3A to 46A-3E, inclusive, and chapter 46A-2, the Legislature may establish water development districts. A water development district may be established by an act of the Legislature, signed by the Governor, describing the exact boundaries of the area to be included within the proposed water development district and assigning it an appropriate name. A water development district may also be established pursuant to the procedure set forth in §§ 46A-3A-8 to 46A-3A-15, inclusive. A water development district is a political subdivision of the state. A water development district shall exist as a legal entity beginning on January first immediately following the effective date of an act establishing it as a water development district.
Source: SL 1984 (SS), ch 1, § 6; SL 2012, ch 217, § 1.
46A-3A-1.1. Districts to promote conservation, development and management of resources--Serve as clearinghouse for water quality and supply projects.
Water development districts shall promote the conservation, development, and proper management of district water resources according to district priorities and shall serve as a district-wide clearinghouse authority for water quality and supply projects through technical, organizational and financial assistance to prospective and existing project sponsors and through recommending projects for inclusion in the state water plan, and through other appropriate actions accomplish the purposes of chapters 34A-2, 34A-3A, 34A-6, 34A-9, chapters 46A-3A to 46A-3E, inclusive, and chapters 46A-1 and 46A-2.
Source: SL 1986, ch 372, § 1; SL 1989, ch 306, § 62; SL 1989, ch 386, § 1.
46A-3A-2. Central Plains district.
The Central Plains Water Development District is hereby established. The Central Plains Water Development District includes all of Faulk, Hughes, Hyde, Potter, and Sully counties and all municipalities that lie wholly or partially within the included area or that are contiguous to the included area.
Source: SL 1984 (SS), ch 1, § 7; SL 1986, ch 373; SL 1998, ch 269, § 1; SL 2003, ch 233, § 1; SL 2008, ch 232, § 1, eff. Jan. 1, 2009.
46A-3A-3. East Dakota Water Development District.
The East Dakota Water Development District is hereby established. The district includes:
(1) All of Minnehaha, Moody, Brookings, Hamlin, Deuel, Codington and Grant counties;
(2) All of Lake County, with the exception of Clarno, Concord, Orland, Wayne, and Winfred townships;
(3) Badger township in Kingsbury County; and
(4) All municipalities that are wholly or partially within the included area or that are contiguous to the included area.
Source: SL 1984 (SS), ch 1, § 8; SL 2008, ch 232, § 2, eff. Jan. 1, 2009; SL 2012, ch 217, § 2; SL 2024, ch 184, § 1.
46A-3A-4. James River district.
The James River Water Development District is hereby established. The James River Water Development District includes all of Brown, Spink, Beadle, Sanborn, Davison, Hanson, Hutchinson, and Yankton counties; Buffalo, Dayton, Dumarce, Eden, Fort, Hamilton, Hickman, Lake, Lowell, Miller, Newark, Newport, Pleasant Valley, Red Iron Lake, Sisseton, Stena, Waverly, Weston, and Wismer townships in Marshall County; Pleasant Valley, Bristol, Belford, Cooper, Firesteel, Palatine, Plankinton, Hopper, Pleasant Lake, Dudley, and Aurora townships in Aurora County; and all municipalities that are wholly or partially within the included area.
Source: SL 1984 (SS), ch 1, § 9; SL 1995, ch 252; SL 2008, ch 232, § 3, eff. Jan. 1, 2009; SL 2009, ch 227, § 1; SL 2012, ch 217, § 3; SL 2015, ch 225, § 1; SL 2020, ch 196, § 1.
46A-3A-5. South Central district.
The South Central Water Development District is hereby established. The South Central Water Development District includes all of Charles Mix, Brule, Buffalo, Bon Homme, Douglas, and Gregory counties; Patten, Lake, White Lake, Eureka, Gales, Crystal Lake, Washington, Center, and Truro townships in Aurora County; and the portion of Lyman County south of the White River.
Source: SL 1984 (SS), ch 1, § 10; SL 1998, ch 269, § 2; SL 2008, ch 232, § 4, eff. Jan. 1, 2009.
46A-3A-6. West Dakota district.
The West Dakota Water Development District is hereby established. The West Dakota Water Development District includes that portion of Pennington County west of the Cheyenne River.
Source: SL 1984 (SS), ch 1, § 11A.
46A-3A-7. West River district.
The West River Water Development District is hereby established. The West River Water Development District includes all of Jones, Mellette, and Haakon counties, the portion of Jackson County north of the White River except Interior township and the unorganized Cedar township, the portion of Pennington County east of the Cheyenne River, except for Castle Butte, Conata, Crooked Creek, Flat Butte, Imlay, and Scenic townships, the unorganized territory of the Badlands and that portion of the unorganized territory of east central Pennington east of the Cheyenne River, and the portion of Lyman County north of the White River.
Source: SL 1984 (SS), ch 1, § 12; SL 1985, ch 357; SL 1990, ch 362, § 2.
46A-3A-7.1. Vermillion Basin District.
The Vermillion Basin Water Development District is hereby established. The district includes:
(1) All of Turner, McCook, and Clay counties;
(2) All of Kingsbury County, with the exception of Badger township;
(3) Clarno, Concord, Orland, Wayne, and Winfred townships in Lake County;
(4) Adams, Belleview, Canova, Clearwater, Grafton, Henden, Howard, and Vermillion townships in Miner County; and
(5) All municipalities that are wholly or partially within the included area.
Source: SL 1990, ch 362, § 1; SL 2023, ch 150, § 1; SL 2024, ch 184, § 2.
46A-3A-8. Petition for election on establishment of district.
Fifteen percent of the residents and voters in a geographical area may petition the Board of Water and Natural Resources to submit to an election the question of whether the geographical area shall become a water development district.
Source: SL 1984 (SS), ch 1, § 13A; SL 2011, ch 165, § 324; SL 2016, ch 217, § 1.
46A-3A-9. Contents and form of petition.
A petition arising under the provisions of § 46A-3A-8 shall describe the exact boundaries of the area to be included within the proposed water development district, and each person signing the petition shall add to the person's signature, in the person's own handwriting, the person's place of residence, and the date of signing. The petition may contain more than one page, and each page shall have identical headings. Any number of identical petition forms may be circulated and each be a part of the petition, but each of the identical petition forms must be verified by the circulator as follows:
"I, the undersigned, being first duly sworn, hereby depose that I circulated the above and foregoing petition, containing __________ signatures; that I personally witnessed each of the persons named upon the petition place their signatures on the petition and add in their own handwriting the information set forth after their respective signatures.
________________________________________________________________________
P.O. Address
________________________________________________________________________
Subscribed and sworn to before me this ____ day of __________, 20____
________________________________________________________________________
Notary Public".
Source: SL 1984 (SS), ch 1, § 13B; SL 2011, ch 165, § 325.
46A-3A-10. Approval of petition--Referral to election.
If a petition proposing organization of a water development district is presented to the Board of Water and Natural Resources, the board, after first determining that the petition is in compliance with the required provisions by resolution shall approve the petition for establishment of the proposed water development district and shall provide a name for the water development district. The board at the next general election shall refer to the voters of the proposed water development district the question of whether the water development district shall be established.
Source: SL 1984 (SS), ch 1, § 13C.
46A-3A-11. Ballots on establishment.
The question of forming a water development district shall be presented upon a separate ballot, which shall be prepared by the Board of Water and Natural Resources, and, insofar as applicable, shall be in the form prescribed by the general election laws.
Source: SL 1984 (SS), ch 1, § 13D.
46A-3A-12. Conduct of election.
An election to form a water development district shall be conducted, canvassed, recounted, and contested as elections under the general laws of this state, except as otherwise herein provided, and except where the general laws are inapplicable. If the details concerning the conduct, canvassing, recounting, or contest of the election are not set forth within chapters 46A-3A to 46A-3E, inclusive, and the general election laws are not applicable, then the Board of Water and Natural Resources shall promulgate rules pursuant to chapter 1-26 reasonably necessary to carry out the intentions of chapters 46A-3A to 46A-3E, inclusive, with respect to elections and make possible the submission to an election of any matter which by the terms of chapters 46A-3A to 46A-3E, inclusive, may be submitted to a vote of the voters of any water development district or proposed water development district.
Source: SL 1984 (SS), ch 1, § 13E; SL 1993, ch 256, § 67.
46A-3A-13. Separate districts for election--Vote required.
Any municipality included within the area comprising a proposed water development district shall constitute a separate election district. That area of any county wholly or partially included in a proposed water development district, and which is outside the corporate limits of a municipality, shall also constitute a separate election district. No election district may become a part of any water development district unless sixty percent or more of the votes cast by the voters of such election district shall be in favor of the proposed water development district.
Source: SL 1984 (SS), ch 1, § 13F.
46A-3A-14. Approval by only some of election districts--Effect--Withdrawal from district.
If in some, but not all of the election districts within a proposed water development district, sixty percent or more of the votes cast are in favor of the formation of the water development district, the Board of Water and Natural Resources shall by resolution establish a water development district consisting of only those election districts wherein the requisite vote approving the formation of a water development district was cast. In the event of the creation of a water development district, any of the election districts may withdraw from the water development district by filing with the board within sixty days thereafter, a petition requesting withdrawal, signed by fifteen percent of the residents and voters in the election district. The petition shall contain the same information with respect to the signers and be verified in the same manner as in the case of a petition to establish a water development district. The question of whether an election district shall withdraw shall be referred to the voters of the election district at the next general election, the procedure is the same as required to establish a water development district.
Source: SL 1984 (SS), ch 1, § 13G; SL 2016, ch 217, § 2.
46A-3A-15. Resolution creating district--Filing.
If all of the election districts within a proposed water development district become a part of the water development district as provided in this chapter on approval of the proposed district by sixty percent or more of the votes cast in the election districts, or if the Board of Water and Natural Resources establishes a water development district pursuant to the provisions of § 46A-3A-14 for which not all of the election districts become a part of the water development district, the board shall by resolution create and establish the water development district, give it a name and, upon filing a true copy of the resolution with the secretary of state, the water development district shall become a political subdivision of the state with the authority, powers, and duties prescribed by this chapter.
Source: SL 1984 (SS), ch 1, § 13H; SL 2011, ch 165, § 326.
46A-3A-16. Additions and withdrawals of territory.
After a water development district has been established pursuant to the provisions of chapters 46A-3A to 46A-3E, inclusive, any county, township, or group of townships contiguous to the external boundary of the water development district may be added to and become a part of that water development district by an affirmative vote of a majority of the votes cast on the question in the area proposed for addition, if the board of directors of the water development district to which any addition is to be made by resolution advises the Board of Water and Natural Resources that the water development district board favors the addition. Any county or that entire portion of a county included within a water development district may be withdrawn from a water development district by an affirmative vote of a majority of the votes cast on the question in the county proposed for withdrawal. Proposals for additions or withdrawals shall be in the form of a written resolution or petition to the Board of Water and Natural Resources.
The resolution shall be approved with an affirmative four-fifths vote of the governing body of a county.
The petition shall be signed by a number of qualified voters in the area proposed for the addition or withdrawal equal to at least five percent of the number of votes cast within the area in the most recent gubernatorial election. The county auditor in each county where a petition is circulated shall verify the signatures on the petition.
The resolution or petition shall include a statement whether the election is for the purpose of becoming a part of an existing water development district or withdrawing from an existing water development district and a statement describing the purpose of the action. The resolution or petition shall be presented to the Board of Water and Natural Resources not more than one hundred twenty days nor less than ninety days before a regularly scheduled general election. Upon receipt of the resolution or petition, the Board of Water and Natural Resources shall call an election on the question of whether the addition or withdrawal should be made. The election shall be held in conjunction with the next regularly scheduled general election.
Source: SL 1984 (SS), ch 1, § 13; SL 2010, ch 216, § 2.
46A-3A-17. Costs of elections.
The costs associated with an election for withdrawal or addition shall be assigned to the involved county.
Source: SL 1984 (SS), ch 1, § 14.
CHAPTER 46A-3B
WATER DEVELOPMENT DISTRICTS--BOARD OF DIRECTORS
46A-3B-1 Initial board of directors--Election--Terms.
46A-3B-2 Number of directors--Qualifications.
46A-3B-2.1 Directors to continue in office following realignment of district.
46A-3B-3 Adjusting number of directors--Redistricting--Temporary positions.
46A-3B-4 Nomination of director candidates.
46A-3B-5 Certification of nominating petitions--Ballots--Primary election.
46A-3B-6 Run-off elections for initial directors.
46A-3B-7 Notices of elections.
46A-3B-8 Certification of election.
46A-3B-9 Commencement of directors' terms--Vacancies.
46A-3B-10 Directors to provide for compensation and reimbursement of board members.
46A-3B-11 Officers of board of directors.
46A-3B-12 Quorum of board of directors.
46A-3B-13 Directors of Central Plains, East Dakota, James River, and South Central districts.
46A-3B-1. Initial board of directors--Election--Terms.
The initial board of directors shall be elected at the next general election following the effective date of an act establishing a water development district. If a general election will not occur within one year after the act goes into effect, the Board of Water and Natural Resources may call a special election for the initial board of directors, the costs of such special election to be borne by the water development district. The initial directors shall be elected to serve for staggered terms until the January first following the first general election that occurs at least twelve months after the initial election or the next succeeding general election respectively to represent areas of the water development district. Directors shall thereafter be elected to four-year terms at each subsequent general election to succeed those directors whose terms expire at the end of the year in which the election is held.
Source: SL 1984 (SS), ch 1, § 15.
46A-3B-2. Number of directors--Qualifications.
The board of directors of a water development district shall consist of five, seven, or nine members. Those districts which have a population up to twenty-five thousand shall have five directors. Those districts which have a population of twenty-five thousand and one to seventy-five thousand shall have seven directors. Districts with a population greater than seventy-five thousand shall have nine directors. Each director shall be a resident and voter in the director area represented. The Board of Water and Natural Resources shall divide the water development district into director areas. A director shall be elected from each director area.
Source: SL 1984 (SS), ch 1, § 16; SL 1985, ch 356, § 2; SL 2008, ch 233, § 2, eff. Jan. 1, 2009.
46A-3B-2.1. Directors to continue in office following realignment of district.
For any water development district having director areas that will be realigned as a result of § 46A-3B-2, any director of the district who is in office on January 1, 2024, shall continue to serve as a director if the director remains a resident of the district.
Source: SL 2008, ch 233, § 3, eff. Jan. 1, 2009; SL 2024, ch 184, § 3.
46A-3B-3. Adjusting number of directors--Redistricting--Temporary positions.
As soon as possible following each decennial census of population or any adjustment to a water development district boundary, the Board of Water and Natural Resources shall ascertain whether the number of board members should be adjusted, adjust the same, and redistrict water development district director areas to reflect changes in the population of the water development district, so as to assure equitable representation of all areas within the water development district.
The board may make adjustments to water development district director areas to reflect precinct changes made pursuant to chapter 12-14, if equitable representation of all areas remains assured.
If an adjustment under this section results in an increased number of board members, each additional position must be filled by elective action of the remaining directors, from candidates proposed by nominating petitions signed by at least twenty-five eligible voters in the director area to be represented by the additional position. The individual chosen by the remaining directors to fill the additional position shall serve until a director is elected at the next general election and takes office, as provided for in § 46A-3B-9.
Source: SL 1984 (SS), ch 1, § 17; SL 2008, ch 233, § 4, eff. Jan. 1, 2009; SL 2012, ch 217, § 7; SL 2024, ch 185, § 1.
46A-3B-4. Nomination of director candidates.
A director candidate may be nominated by a petition signed by at least twenty-five registered voters in the director area to be represented by the candidate. Nominating petitions shall be made available at the water development district office, the secretary of state's office, and the respective county auditors' offices on forms prescribed by the state election board and filed with the secretary of state not prior to eight a.m., January first, and not later than five p.m., the last Tuesday of March prior to the date of the primary election. If a petition is mailed to the secretary of state's office by registered mail by five p.m., the last Tuesday of March prior to the primary election, it is considered filed. For the initial election, director nominating petitions shall be made available by the Department of Agriculture and Natural Resources and shall be filed with the department not later than five p.m., the first Tuesday of August before the general election or in the case of a special election under § 46A-3B-1, not later than thirty days before the date set for the special election.
Source: SL 1984 (SS), ch 1, § 18; SL 1987, ch 29, § 32; SL 1989, ch 386, § 2; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2008, ch 234, § 1, eff. Feb. 7, 2008; SL 2015, ch 77, § 2 rejected Nov. 8, 2016; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-3B-5. Certification of nominating petitions--Ballots--Primary election.
If three or more nominating petitions are filed for a director office, the secretary of state shall certify the nomination of director candidates to the respective county auditors and the water development district office. The water development district office shall furnish nonpolitical sample and official ballots in adequate numbers and time to permit distribution of such ballots by the respective county auditors with other primary election ballots. Following a primary election, the names of the two candidates receiving the most votes cast in the primary election (or if only two nominating petitions are filed, the names of the two candidates) shall be certified and ballots furnished in the same manner as for the primary, but in time to permit distribution of the ballots by the respective county auditors with other general election ballots. If only one nominating petition is filed for a director office, no election may be held and a certificate of election shall be issued to the nominee in the same manner as to a successful candidate after election. In the case of an initial election, no primary election may be held and the Board of Water and Natural Resources shall certify the names of the candidates and furnish ballots in time to permit distribution of the ballots by the county auditors prior to the general or special election.
Source: SL 1984 (SS), ch 1, § 19; SL 1989, ch 386, § 3; SL 1991, ch 17 (Ex. Ord. 91-4), § 17.
46A-3B-6. Run-off elections for initial directors.
Not later than thirty days after a general or special election for the initial directors of a water development district, the Board of Water and Natural Resources shall hold a run-off election in each director area in which no director candidate received a majority of the votes cast for that area's director office. The run-off election in each affected director area shall be between the two director candidates receiving the most votes during the general or special election. The water development district shall pay the costs of the run-off election.
Source: SL 1984 (SS), ch 1, § 20.
46A-3B-7. Notices of elections.
A water development district, or the Board of Water and Natural Resources in the case of an initial election, shall publish once each week for two consecutive weeks in the official newspapers of the water development district a notice setting forth vacancies that will occur by completion of terms of the water development district board members. The last publication may not be less than ten nor more than twenty days before the final deadline for filing of director petitions. The notice shall also state the time and place where director nominating petitions may be filed for such vacancies.
Source: SL 1984 (SS), ch 1, § 21.
46A-3B-8. Certification of election.
The respective county auditors shall transmit the results of the election for water development district directors to the secretary of state. If only one nominating petition for a water development district director office has been filed, a certificate of election shall be issued to the nominee by the secretary of state. In the case of an initial election, the Board of Water and Natural Resources shall certify the names of all nominees to the secretary of state. The secretary of state shall issue a certificate of election to each successful candidate.
Source: SL 1984 (SS), ch 1, § 22; SL 1989, ch 386, § 4; SL 1991, ch 17 (Ex. Ord. 91-4), § 17.
46A-3B-9. Commencement of directors' terms--Vacancies.
Each director shall take office on the first day of January of the year following election, or not later than sixty days after election in the case of a special election. A vacancy that may occur on the water development district board of directors by reason of death, failure to be a resident and voter, resignation, or other cause pursuant to § 3-4-1, or upon expiration of term of office if no qualifying petitions have been filed or if no successor has qualified for the office, unless otherwise provided in chapters 46A-3A to 46A-3E, inclusive, shall be declared to exist and shall be filled by elective action of the remaining directors from candidates proposed by nominating petitions signed by at least twenty-five eligible voters in the director area for which a vacancy exists. The person appointed to fill the vacancy shall serve for the remainder of the unexpired term.
Source: SL 1984 (SS), ch 1, § 23; SL 1989, ch 386, § 5; SL 1991, ch 372; SL 2016, ch 217, § 3; SL 2017, ch 191, § 1; SL 2020, ch 196, § 2.
46A-3B-10. Directors to provide for compensation and reimbursement of board members.
Each water development district board of directors shall establish amounts to reimburse board members for expenses for lodging, meals, and mileage and to provide compensation for each day of actual service for traveling to, attending, and returning from meetings, hearings, or investigations of the water development district board. Such reimbursement and compensation shall be paid on vouchers duly verified and approved according to procedures determined by the board.
Source: SL 1984 (SS), ch 1, § 30; SL 2000, ch 216, § 1.
46A-3B-11. Officers of board of directors.
At the first meeting in January of each year, designated as the annual meeting of the water development district, the directors shall elect a chair, a vice chair, and a secretary from among their membership. The officers shall hold office until the next annual meeting of the water development district or until their successors have been elected. In addition, the directors shall appoint a treasurer who may or may not be a director and who shall serve at the pleasure of the board of directors or until a successor is appointed. The treasurer shall be bonded in such amounts and with such sureties as the directors may specify, conditioned on faithful performance of the treasurer's duties. The chair, vice chair, secretary, and treasurer constitute the officers of the board of directors. The treasurer, if not a director, has no voting privileges.
Source: SL 1984 (SS), ch 1, § 31; SL 2011, ch 165, § 327.
46A-3B-12. Quorum of board of directors.
A majority of the members of the water development district board of directors constitutes a quorum for transaction of water development district business.
Source: SL 1984 (SS), ch 1, § 34.
46A-3B-13. Directors of Central Plains, East Dakota, James River, and South Central districts.
For any water development district with boundaries affected by §§ 46A-3A-2 to 46A-3A-5, inclusive, any director of the district who is in office on January 1, 2009 shall continue to serve as a director if the director remains a resident of the district. At the first general election after January 1, 2009, for any water development district with boundaries affected by §§ 46A-3A-2 to 46A-3A-5, inclusive, directors shall be elected for all director positions in the district, regardless of whether or not any director's term has expired. The directors elected for the district at the general election shall be elected to serve for staggered terms. Thereafter, directors shall be elected to four-year terms at each subsequent general election to succeed those directors whose terms expire at the end of the year in which the election is held.
Source: SL 2008, ch 232, § 5, eff. Jan. 1, 2009.
46A-3C-1
Election of dissolution of district--Vote required--Petition.
46A-3C-2
Form of petition for dissolution.
46A-3C-3
Approval of petition--Referral to election.
46A-3C-4
Vote required for dissolution--Period in which another election prohibited--Costs.
46A-3C-5
Exercising powers of dissolved district to satisfy obligations.
46A-3C-6
Elections--Conduct.
46A-3C-1. Election of dissolution of district--Vote required--Petition.
A water development district may be dissolved by affirmative vote of at least fifty percent of the votes cast on the question at a general election. The question shall be referred to district voters by the Board of Water and Natural Resources after receipt of a petition in writing signed by a number of qualified voters of the water development district equal to at least fifteen percent of the votes cast within the water development district in the most recent gubernatorial election. The petition shall be filed with the board by the first Tuesday in July of the year in which the general election is to occur.
Source: SL 1984 (SS), ch 1, § 24; SL 1990, ch 362, § 3; SL 1991, ch 17 (Ex. Ord. 91-4), § 17.
46A-3C-2. Form of petition for dissolution.
The petition of dissolution pursuant to § 46A-3C-1 shall request that the water development district be dissolved and shall include the legal name of the water development district. Each person signing the petition shall add to the person's signature, in the person's own handwriting, the person's place of residence and the date of signing. The petition may contain more than one page, and each page shall have identical headings. Any number of identical petition forms may be circulated and each be a part of the petition. Every page of the petition containing signatures shall have upon it and below the signatures an affidavit by the circulator in substantially the following form:
STATE OF SOUTH )
DAKOTA ) SS
COUNTY OF __________ )
I, the undersigned _______________, being first duly sworn, depose and say, that I am the circulator of the foregoing petition containing __________ signatures; that each person whose name appears on the petition sheet personally signed the petition in my presence; that I believe that each of the signers is a resident at the address written opposite the signer's name; and that I stated to every petitioner before the signer affixed his or her signature the legal effect and nature of the petition.
__________________________________
Circulator
Subscribed and sworn to before me this ________________ day of _________________, 20____.
__________________________________
Notary Public
Source: SL 1984 (SS), ch 1, § 25; SL 2011, ch 165, § 328.
46A-3C-3. Approval of petition--Referral to election.
Upon presentation of a petition proposing that a water development district be dissolved to the Board of Water and Natural Resources, the board, after first determining that the petition is in compliance with all legal requirements, shall by resolution approve the petition and, at the next general election, shall refer the question to the voters of the water development district.
Source: SL 1984 (SS), ch 1, § 26.
46A-3C-4. Vote required for dissolution--Period in which another election prohibited--Costs.
If at least fifty percent of the votes cast are in favor of the dissolution proposition, the Board of Water and Natural Resources by resolution shall dissolve the water development district and shall file a true copy of the resolution with the secretary of state. If the vote is against dissolving the water development district, another vote may not be held on the question of dissolution for four years. A new election may not be held unless a new petition has been submitted to the Board of Water and Natural Resources. The costs associated with an election to dissolve a water development district are the responsibility of the affected water development district.
Source: SL 1984 (SS), ch 1, § 27; SL 1990, ch 362, § 4; SL 1991, ch 17 (Ex. Ord. 91-4), § 17.
46A-3C-5. Exercising powers of dissolved district to satisfy obligations.
If a water development district has been dissolved, the Board of Water and Natural Resources shall exercise necessary power and authority of the water development district board of directors until all financial responsibilities, obligations, and other contractual commitments of the dissolved water development district are satisfied.
Source: SL 1984 (SS), ch 1, § 28.
46A-3C-6. Elections--Conduct.
Any election held to carry out the purposes of chapters 46A-3A to 46A-3E, inclusive, shall be conducted, canvassed, recounted, and contested as are other elections under the general laws of this state, except as otherwise herein provided. If the details concerning the conduct, canvassing, recounting, or contest of the election are not set forth within chapters 46A-3A to 46A-3E, inclusive, and general election laws are not applicable, the Board of Water and Natural Resources shall promulgate rules pursuant to chapter 1-26 to carry out the intent of chapters 46A-3A to 46A-3E, inclusive, with respect to elections and make possible the submission to election of any matter which by the provisions of chapters 46A-3A to 46A-3E, inclusive, is subject to a vote.
Source: SL 1984 (SS), ch 1, § 29; SL 1987, ch 328, § 3; SL 1993, ch 256, § 68.
CHAPTER 46A-3D
WATER DEVELOPMENT DISTRICTS--POWERS AND DUTIES
46A-3D-1 Office of district--Employees.
46A-3D-2 Group insurance for employees.
46A-3D-3 Records required of districts--Public inspection.
46A-3D-4 Audit--Annual report--Auditor-general authority.
46A-3D-5 Actions by and against boards of directors.
46A-3D-6 Contracting power of boards.
46A-3D-7 Insurance authorized.
46A-3D-8 Property acquisition and disposition.
46A-3D-9 Eminent domain.
46A-3D-10 Acceptance of funds, property, and services.
46A-3D-11 Designation of legal newspapers.
46A-3D-12 Accumulation of capital reserve fund.
46A-3D-13 Federal wildlife mitigation requirements.
46A-3D-14 46A-3D-14, 46A-3D-15. Repealed by SL 1996, ch 265, §§ 16, 17.
46A-3D-16 46A-3D-16. Repealed by SL 1987, ch 29, § 61.
46A-3D-17 46A-3D-17, 46A-3D-18. Repealed by SL 1996, ch 265, §§ 18, 19.
46A-3D-1. Office of district--Employees.
A water development district board of directors may equip, maintain, and operate an office within the water development district as its principal place of business and establish other offices as necessary. The board of directors may appoint and fix compensation of any employees deemed necessary by the board of directors to conduct the business and affairs of the water development district and to carry out the intent of chapters 46A-3A to 46A-3E, inclusive. No employee of the water development district may hold office as a water development district director while so employed.
Source: SL 1984 (SS), ch 1, § 32.
46A-3D-2. Group insurance for employees.
A water development district board of directors may enter into group hospital and medical insurance contracts for protection and benefit of their employees and the immediate families of such employees. The board may pay all or part of the necessary premiums for its employees.
Source: SL 1984 (SS), ch 1, § 33; SL 1987, ch 332, § 1.
46A-3D-3. Records required of districts--Public inspection.
A water development district board of directors shall keep accurate minutes of its meetings and accurate records and books of account clearly setting forth and reflecting the operations, management, and business of the district. The minutes, records, and books shall be kept at the principal place of business of the water development district and shall be open to public inspection during reasonable business hours. The minutes shall be distributed to the official newspapers of the water development district.
Source: SL 1984 (SS), ch 1, § 35; SL 2020, ch 196, § 3.
46A-3D-4. Audit--Annual report--Auditor-general authority.
The fiscal year of the water development district coincides with the calendar year.
At the conclusion of each fiscal year in which the district's revenues exceeded three hundred fifty thousand dollars, the board shall obtain, from the Department of Legislative Audit or an auditor approved by the department, an audit of the books, records, and financial affairs of the district. The district shall retain a written report of the audit in its principal place of business and shall file a copy in the Office of the Secretary of State. The district shall publish a notice regarding availability of the audit report in the official newspapers designated in accordance with § 46A-3D-11.
A district having three hundred fifty thousand dollars or less in annual revenue may submit an annual report in lieu of an audit. The district shall submit the report to the auditor-general, on forms prescribed by the department.
The auditor-general may audit the books and records of any office or officer of a district, if requested by the board or if the auditor-general finds that cause exists.
Source: SL 1984 (SS), ch 1, § 36; SL 2012, ch 218, § 1; SL 2023, ch 151, § 1.
46A-3D-5. Actions by and against boards of directors.
The water development district board of directors may sue and be sued in the name of the water development district.
Source: SL 1984 (SS), ch 1, § 37.
46A-3D-6. Contracting power of boards.
The water development district board of directors may cooperate or contract with any individual, state, or subdivision thereof or federal agency or private or public corporation to carry out the intent and purposes of chapters 46A-3A to 46A-3E, inclusive.
Source: SL 1984 (SS), ch 1, § 38.
46A-3D-7. Insurance authorized.
A water development district board of directors may carry public liability insurance protecting the directors and employees against liability suits brought against them for acts or omissions while performing their duties as directors or employees. The board may carry other insurance as deemed necessary by the board to protect the water development district and its property.
Source: SL 1984 (SS), ch 1, § 39.
46A-3D-8. Property acquisition and disposition.
A water development district board of directors may acquire by purchase or lease all real and other property as may be necessary to carry out the purposes and intent of chapters 46A-3A to 46A-3E, inclusive. The board may hold and use the property, lease or otherwise dispose of any part or parcel thereof, or sell the property if it is no longer needed. The water development district board shall follow the procedures in chapters 6-13 and 7-30 for the sale, exchange, leasing, and disposal of property.
Source: SL 1984 (SS), ch 1, § 40; SL 1989, ch 30, § 75.
46A-3D-9. Eminent domain.
A water development district board of directors may exercise the power of eminent domain for acquiring and securing any right, title, interest, estate, or easement necessary to carry out the purposes and intent of chapters 46A-3A to 46A-3E, inclusive, if the district is unable to acquire it by negotiation.
Source: SL 1984 (SS), ch 1, § 41.
46A-3D-10. Acceptance of funds, property, and services.
A water development district board of directors may accept funds, property, and services or other assistance, financial or otherwise, from federal, state, and other public or private sources to carry out the purposes and intent of chapters 46A-3A to 46A-3E, inclusive.
Source: SL 1984 (SS), ch 1, § 42.
46A-3D-11. Designation of legal newspapers.
Each year each water development district board shall designate legal newspapers of general circulation published within the water development district as official newspapers of the water development district.
Source: SL 1984 (SS), ch 1, § 43.
46A-3D-12. Accumulation of capital reserve fund.
To carry out the purposes and intent of chapters 46A-3A to 46A-3E, inclusive, a water development district may accumulate funds in a capital reserve fund established by resolution by the directors. The accumulated funds may not revert at the end of a fiscal year and the water development district directors may make expenditures from the capital reserve fund as they deem necessary, consistent with the purposes and intent of chapters 46A-3A to 46A-3E, inclusive.
Source: SL 1984 (SS), ch 1, § 44.
46A-3D-13. Federal wildlife mitigation requirements.
It is the intent of chapters 46A-3A to 46A-3E, inclusive, that any land used to satisfy federal wildlife mitigation requirements for a project shall be within the water development district benefiting from that project.
Source: SL 1984 (SS), ch 1, § 66.
CHAPTER 46A-3E
WATER DEVELOPMENT DISTRICTS--TAX LEVIES AND SPECIAL ASSESSMENTS
46A-3E-1 Tax levies.
46A-3E-2 Special assessments.
46A-3E-3 Contractual agreement of landowner for special assessment.
46A-3E-4 Hearing on special assessment--Notice--Resolution of intent.
46A-3E-5 Notice of resolution of intent to specially assess.
46A-3E-6 Effective date of assessment in absence of protest--Form of protest.
46A-3E-7 Contract required for district participation in project--Approval.
46A-3E-8 Levies and assessments to cover obligations--Restrictions on obligations.
46A-3E-9 Collection of levies and assessments--Deposit of proceeds--Disbursement--Assurance of payment of contract obligations.
46A-3E-10 Budgets--Annual report--Hearing--Notice--Adoption.
46A-3E-11 Apportionment of tax levy--Form of levy.
46A-3E-12 Certification of levy to tax officials.
46A-3E-13 Extension of levy.
46A-3E-14 Collection of taxes and assessments--Payment--Deposit.
46A-3E-15 Deposit and disbursement of collections.
46A-3E-1. Tax levies.
A water development district board of directors may levy taxes, not to exceed thirty cents per thousand dollars of taxable valuation in the district, for accomplishment of the purposes of chapters 46A-3A to 46A-3E, inclusive, and chapters 46A-1 and 46A-2. If an area is included in more than one water development district, that area's tax levy payable to each of the water development districts is determined by multiplying the greater of the overlapping water development districts' levies by each water development district's taxing fraction. Each water development district's taxing fraction is determined by dividing that water development district's proposed tax levy for the overlapped area by the sum of all water development districts' levies for the overlapped area.
Source: SL 1984 (SS), ch 1, § 45; SL 1989, ch 87, § 15J; SL 1998, ch 269, § 3; SL 2008, ch 232, § 6, eff. Jan. 1, 2009; SL 2010, ch 216, § 1; SL 2024, ch 184, § 4.
46A-3E-2. Special assessments.
A water development district board of directors may make special assessments against real property specially benefited by a project, provided that the persons seeking the assessment or an entity authorized to act on their behalf have contractually agreed to the special assessments as a means of providing local funding. There shall be filed with the water development district board of directors a petition in a form approved by the Board of Water and Natural Resources signed by sixty-six and two-thirds percent of the owners of real property to be assessed.
Source: SL 1984 (SS), ch 1, § 46.
46A-3E-3. Contractual agreement of landowner for special assessment.
Only those landowners who contractually agree for special assessments to finance a water delivery project may be specially assessed. The provisions of § 46A-3E-4 notwithstanding, any person who wishes to join a water delivery project after a petition has been filed with the water development district board of directors pursuant to § 46A-3E-4 may contractually agree to join the project. However, a person contractually joining a water delivery project late may be required to make special payments in addition to special assessments in order to bear the person's fair share of project costs.
Source: SL 1984 (SS), ch 1, § 47A; SL 2011, ch 165, § 329.
46A-3E-4. Hearing on special assessment--Notice--Resolution of intent.
Upon receipt of a petition requesting a special assessment, a water development district board of directors shall hold a hearing on the question. Notice of the time and place of the hearing shall be published at least once each week for two consecutive weeks before the hearing in the official newspapers of the water development district. The last publication shall be at least ten days prior to the hearing. If, after hearing, the board of directors determines that the project is consistent with the best interests of the water development district, it may adopt a resolution of intent to specially assess.
Source: SL 1984 (SS), ch 1, § 48.
46A-3E-5. Notice of resolution of intent to specially assess.
Within twenty days after adoption of a resolution of intent to specially assess, a water development district board of directors shall give written notice to owners of real property described in the resolution. Owners entitled to notice are those listed as the owners of the real property to be assessed in the records in the office of the register of deeds of the county where the real property is located. If real property is sold under a contract for deed which is of record in the office of the register of deeds, both the landowner and the purchaser of the land, as named in the contract for deed, shall be treated as owners.
Notice shall be by registered or certified mail, shall be effective upon the date mailed, and shall contain the following:
(1) A description of the contract under which the assessment is to be made;
(2) A legal description of the real property of the affected owner to be specially assessed;
(3) A description of the nature of the benefit to be returned to the property; and
(4) Notice of the right to protest by petition.
Source: SL 1984 (SS), ch 1, § 49; SL 1986, ch 375, § 1; SL 1987, ch 29, § 33; SL 1987, ch 333, § 1.
46A-3E-6. Effective date of assessment in absence of protest--Form of protest.
Special assessments by water development districts are effective thirty days after adoption of the resolution of intent to specially assess, unless a written protest is filed with the office of the water development district within thirty days of adoption of the resolution, excluding the date of adoption. The written protest shall be in the form of a petition signed by not less than sixty percent of the owners of real property described in the resolution of intent to specially assess.
Source: SL 1984 (SS), ch 1, § 50; SL 1986, ch 375, § 2; SL 1987, ch 333, § 2.
46A-3E-7. Contract required for district participation in project--Approval.
A water development district may assist, sponsor, or construct a water resources project. Each project shall conform to the provisions of § 46A-2-3, which provides that specific areas shall finance those phases of water resources development that provide general benefits to people in such areas, that direct beneficiaries shall finance those phases of water resources development that provide water for their use or that protect or enhance the value of their property, and that administrative jurisdiction and responsibility for the various phases of water resources development are related to such variable degrees of benefits.
Source: SL 1984 (SS), ch 1, § 51; SL 1998, ch 269, § 4; SL 2003, ch 231, § 1.
46A-3E-8. Levies and assessments to cover obligations--Restrictions on obligations.
A water development district board of directors may levy taxes and special assessments, as provided and limited in chapters 46A-3A to 46A-3E, inclusive, to cover obligations contained in contracts with the United States, or any agency thereof, with agencies of the State of South Dakota, or with any other entity, public or private, to accomplish the purposes of chapters 46A-3A to 46A-3E, inclusive. Except for special assessments, however, a water development district may not obligate any funds or revenues that are not to be collected or on hand during the fiscal year in which the obligation is incurred.
Source: SL 1984 (SS), ch 1, § 52.
46A-3E-9. Collection of levies and assessments--Deposit of proceeds--Disbursement--Assurance of payment of contract obligations.
Pursuant to the provisions of chapters 46A-3A to 46A-3E, inclusive, a water development district board of directors may levy a tax or special assessments or both against taxable property within the boundaries of the water development district, to be collected by the appropriate tax listing entities in accordance with the procedures outlined in chapters 46A-3A to 46A-3E, inclusive. Collections from the tax shall be deposited monthly with the water development district treasurer by the appropriate tax collecting officials. The water development district treasurer shall deposit the funds received from the appropriate tax collecting officials in depositories designated by the water development district board of directors. Disbursements from the designated depository account shall be made upon orders duly drawn by the water development district treasurer pursuant to procedures adopted by the board of directors and are to be used in performing the duties prescribed for the water development district board of directors by the provisions of chapters 46A-3A to 46A-3E, inclusive. However, any agreement or contract entered into by the water development district board of directors on behalf of any irrigation district, drainage district, watershed district, municipality, county, township, or other entity of state government shall be secured by the taxing or assessment power of such public entity and such agreement or contract, entered into by the district board of directors with or on behalf of a soil conservation district, water user district, or other nontaxing public entity shall provide for other assurance of payment satisfactory to the water development district board of directors.
Source: SL 1984 (SS), ch 1, § 53; SL 1993, ch 256, § 69.
46A-3E-10. Budgets--Annual report--Hearing--Notice--Adoption.
The board of directors of a water development district shall at the time of the organization of the board and annually thereafter on a date established by the district, but before the first of October, adopt a budget and prepare an operations and budget report. The report shall present estimates and itemizations of all the expenses and obligations of the water development district, including expenses of directors, expenses of operating the office, debt service and retirement, and obligations and liabilities to the United States. Before approval of the budget by the district board of directors, a public hearing shall be held. Notice of the hearing shall be published once each week for two successive weeks in the water development district's official newspapers. The notice shall state the time and place of the hearing, its purpose, and that at the hearing all persons interested may appear, either in person or by representative, and be heard and given an opportunity for a full and complete discussion of all items in the budget. With the first notice, the budget shall be published in a form approved by the auditor general. At the conclusion of the hearing, the water development district board may eliminate or amend any portion of the budget before adoption.
Source: SL 1984 (SS), ch 1, § 54; SL 1986, ch 372, § 2; SL 1997, ch 255, § 7; SL 2011, ch 165, § 330; SL 2012, ch 217, § 4.
46A-3E-11. Apportionment of tax levy--Form of levy.
Upon completion and adoption of a budget, a water development district board of directors shall make a tax levy or special assessment or both in dollars sufficient to fund the budget. Any tax levy made against the property in any given county in a water development district shall be in an amount equal to the total water development district tax levy in dollars multiplied by the county's proportional share. The county's proportional share shall be determined by dividing the equalized assessed valuation of the area within the water development district for that county by the total water development district equalized assessed valuation. The provisions of § 10-12-34.1 may not prohibit apportionment of the tax among the counties as provided in this section. No water development district tax levy may be in excess of the limitation specified in chapters 46A-3A to 46A-3E, inclusive, except as provided in § 46A-3E-1. Any tax levy shall be in the form of a resolution adopted by a majority vote of the members of the board of directors of the water development district.
Source: SL 1984 (SS), ch 1, § 55; SL 1986, ch 372, § 3; SL 1989, ch 386, § 6; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2012, ch 217, § 5.
46A-3E-12. Certification of levy to tax officials.
Immediately after completion of a budget and adoption of special assessments and a tax levy by a water development district board of directors, but not later than the first of October, the secretary of the water development district shall send one certified copy of the levy as adopted and one certified copy of such budget to appropriate tax collecting officials of the affected counties and to the state secretary of revenue.
Source: SL 1984 (SS), ch 1, § 56; SL 1992, ch 318.
46A-3E-13. Extension of levy.
Appropriate officials shall extend the levy or special assessments upon the tax list of the county, municipality, or other appropriate tax paying entity for the tax year against each description of taxable property or, in the case of special assessments, against each description of taxable property to be specially assessed within the water development district in the same manner and with the same effect as other taxes and assessments are extended, including the authority, requirements, and procedures contained in chapter 9-43.
Source: SL 1984 (SS), ch 1, § 57; SL 1987, ch 333, § 3.
46A-3E-14. Collection of taxes and assessments--Payment--Deposit.
The appropriate tax collecting officials shall collect all water development district taxes and assessments, together with interest and penalty thereon, if any, in the same manner as the general taxes and assessments are collected and shall pay over monthly to the water development district treasurer all taxes so collected during the preceding month, with interest and penalties. The water development district treasurer shall immediately enter these receipts to the credit of the depository accounts designated by the water development district board of directors pursuant to § 46A-3E-9.
Source: SL 1984 (SS), ch 1, § 58; SL 2012, ch 217, § 6; SL 2023, ch 150, § 2.
46A-3E-15. Deposit and disbursement of collections.
All moneys collected pursuant to the tax levies, special assessments and other funds authorized by this chapter accruing to the district shall be deposited either in the accounts of the state treasurer to the credit of the "(name) district fund" to be disbursed only as herein provided, or by the district treasurer in any depository designated and approved by the board of directors of the district at a regular meeting and from which all valid claims against the district shall be paid by order duly drawn by the district treasurer pursuant to procedures adopted by the board of directors.
Source: SL 1985, ch 356, § 1; SL 1993, ch 256, § 70.
CHAPTER 46A-4
ORGANIZATION, BOUNDARIES AND DISSOLUTION OF IRRIGATION DISTRICTS
46A-4-1 Creation of irrigation district--Filing petition--Number of electors required.
46A-4-2 Elector defined.
46A-4-3 Petition to organize irrigation district--Number of signers--Boundaries to be described--Request for organization.
46A-4-3.1 Petition--Signing by electors--Form--Affidavit of circulator.
46A-4-4 Petition for formation of irrigation district--Map of proposed district to accompany, contents.
46A-4-4.1 Notice of hearing to consider petition--Publication--Contents--Approval of petition--Fixing date for election.
46A-4-5 46A-4-5 to 46A-4-7. Repealed by SL 1984, ch 294, §§ 7 to 9
46A-4-8 Inclusion in irrigation district of lands capable of being irrigated from works in proposed district.
46A-4-9 Ditches or canals constructed before July 1, 1917, and lands watered by them--Exemption--Rights of ditches already constructed.
46A-4-10 Holding or taxing nonirrigable land for irrigation purposes.
46A-4-11 46A-4-11. Repealed by SL 1984, ch 294, § 11
46A-4-12 Change in proposed boundaries by board--Exclusion of certain lands from district.
46A-4-13 46A-4-13. Repealed by SL 1984, ch 294, § 13
46A-4-14 District divided into divisions by board--Size and number--Election of directors--Terms--Assessment of property within district.
46A-4-14.1 Division representing tribal or trust lands--Excepted from chapter.
46A-4-15 Notice of election on proposed district--Date of election--Contents of notice--Publication--Ballot form.
46A-4-15.1 46A-4-15.1, 46A-4-16. Repealed by SL 1998, ch 36, §§ 52, 53
46A-4-17 Persons qualified to vote at elections.
46A-4-18 Corporate ownership of lands within proposed or existing irrigation districts--Designation of agent to vote in behalf of elections for organization of district.
46A-4-19 Election procedure--Applicability of general laws--Resolution declaring district organized--District as political subdivision.
46A-4-20 Resolution declaring district organized--Filing for record.
46A-4-21 Election of director for each division.
46A-4-22 Unentered public lands a major portion of district--Appointment of majority of directors by secretary of interior--Term of office.
46A-4-23 Directors elected at large as a result of appointment of majority of directors by secretary of interior--Term of office.
46A-4-24 Directors elected at election to establish district--Terms of office--Tie election, procedure.
46A-4-25 Annual election of directors--Nomination--Election by receiving highest number of votes.
46A-4-26 Hours of voting.
46A-4-27 Directors to be electors of division--Residence.
46A-4-27.1 Transmittal of election results.
46A-4-28 Nominating petition for directors--Filing--Form--Signers.
46A-4-29 46A-4-29. Repealed by SL 1984, ch 294, § 26
46A-4-30 Election not required where no question or contest--Retention of office by incumbent.
46A-4-31 Notices of election after organization of district--Publication and posting.
46A-4-32 Elections after district organized and first set of directors elected--Voting by mail.
46A-4-33 Precinct election officers--Appointment by board of directors or electors.
46A-4-34 Chair of election board--Oaths.
46A-4-35 Precinct election boards--Oaths of members, administration, and certification.
46A-4-36 Canvass of votes by board--Time and place.
46A-4-37 Declaration of election results--Certificate of election.
46A-4-38 Statement of election results--Filing--Contents.
46A-4-39 Vacancy in office of board of directors--Filling--District treasurer appointed by board.
46A-4-40 Elected directors--Qualifying--Term of office--Time for assumption of duties.
46A-4-41 Directors' and officers' oath of office--Official bonds.
46A-4-42 District appointed fiscal agent of United States to collect money for federal reclamation project--Additional bond required--Right to sue on bond.
46A-4-43 Bond of officers and directors--Form--Obligee--Cost of surety bonds, payment by the district.
46A-4-44 Organization meeting of board of directors--Election of president and vice-president--Appointment of secretary.
46A-4-45 Meetings of directors--Special meetings--Open to public--Quorum--Vote required for action.
46A-4-46 Records of board of directors open for inspection--Publication of statement of proceedings--Filing of list of expenditures.
46A-4-47 Compensation of district directors--Payment from district fund.
46A-4-48 Powers and duties of board of directors of district--Distribution and printing of bylaws and procedures--Water rights appurtenant to land.
46A-4-49 Interest in contract of district or acceptance of bribe by director or officer as felony.
46A-4-50 Change of irrigation district boundaries--Exclusion of land within boundaries.
46A-4-51 Common school and endowment irrigable lands within district--Sale--Inclusion in district.
46A-4-52 Assent of secretary of interior necessary for change in boundaries of district contracting with United States.
46A-4-53 Petition for inclusion of tract of land within boundaries of irrigation district--Contents.
46A-4-54 Participation by conservators and personal representatives of estates.
46A-4-55 Change of boundaries of irrigation district--Notice of filing of petition, contents--Time and place of hearing by board of directors--Cost of proceedings, advancement by petitioners.
46A-4-56 Hearing on petition to change boundaries--Adjournment--Assent to change.
46A-4-57 Rejection of petition to change boundaries--Resolution of board--Contents.
46A-4-58 Land not included in irrigation district unless owner or lessee obligated to pay assessments or charges.
46A-4-59 Payment by petitioners of share of original district assessments as condition for granting petition.
46A-4-60 Board order for election on filing of protests--Publication of notice--Ballots--Boundary descriptions.
46A-4-61 Order of board in conformity with election results on boundary change.
46A-4-62 Filing and recording of order changing boundaries--Effect of change.
46A-4-63 Petition for change of boundaries of irrigation district--Recording in minutes of board of directors, admissibility as evidence.
46A-4-64 Redivision of district following inclusion of land--Election precincts.
46A-4-65 Exclusion of contiguous tracts of land from district--Petition--Contents.
46A-4-66 Notice of petition to exclude land--Publication--Contents--Time for hearing.
46A-4-67 Hearing on petition to exclude land--Assent of interested persons.
46A-4-68 Resolution for exclusion of land when bonds or federal contract outstanding--Bondholders' or federal assent required--Assent waived by terms of bond issue.
46A-4-69 Grant or denial of petition to exclude land from district--Best interests of district--Conditions for exclusion.
46A-4-70 Election ordered on exclusion after objections filed--Publication of notice--Contents--Conduct of election.
46A-4-71 Majority vote against exclusion, denial and dismissal of petition--Majority vote in favor of exclusion, order of board of directors excluding land from irrigation district, contents.
46A-4-72 Order excluding land from irrigation district--Entry in minutes of board of directors--Filing and recording--Effect of order.
46A-4-73 Exclusion of land from irrigation district--Refunding of assessments.
46A-4-74 Exclusion of land from irrigation district--Effect of change on office of director.
46A-4-75 Exclusion of land from irrigation district--Redivision of district by board of directors--Election precincts, establishment, change from time to time.
46A-4-76 Resolution to exclude unproductive lands from district--Reasons--Service on owners and residents--Publication of notice.
46A-4-77 Hearing on exclusion of unproductive lands--Time and place--Objections--Failure to object deemed consent--Rescission of resolution or adoption of second exclusion resolution.
46A-4-78 Motion to reconsider exclusion of unproductive lands--Time--Appeal to circuit court--Contents--Trial--Filing of final resolution.
46A-4-79 Rearrangement or reapportionment of district divisions upon exclusion of lands--Effects of exclusion--Procedural defects--Resolutions and bylaws.
46A-4-80 Subirrigated land--Relief from district assessments--Recording of suspension order.
46A-4-81 Dissolution of district--Petition by majority of assessment payers--Calling of election by board--Notice of election.
46A-4-82 Dissolution of district contracting with United States--Assent of secretary of interior--Recording.
46A-4-83 Election ballots on dissolution of district--Form and contents--Conduct of election.
46A-4-84 Certification of election returns and ballots--Canvass of returns--Declaration of result--Recording.
46A-4-85 Vote against dissolution precludes another election during year.
46A-4-86 Majority vote for dissolution of irrigation district--Notice by board of directors to creditors of district--Settlement of claims.
46A-4-87 Raising of money to pay debts--Valuation of property by appraisers--Appointment--Report.
46A-4-88 Sale of property by board of directors--Advertisement--Notice of sale--Consideration of bids of purchasers by board of directors.
46A-4-89 Rejection of bids for purchase of property--Private negotiations for sale--Deferred payments--Lien--Foreclosure.
46A-4-90 Additional security for deferred payments--Collection.
46A-4-91 Bonds and obligations of district--Redemption after sale of property on dissolution of district.
46A-4-92 Payment of outstanding obligations with proceeds of property sales--Prices paid.
46A-4-93 Proceeds of sale of property on dissolution of irrigation district insufficient to pay debts--Assessments against lands in the district.
46A-4-94 Disposal of property--Payment of obligations--Report of board--Filing and recording--Contents--Time for action on unpaid claim.
46A-4-95 Validation of previously created irrigation districts.
46A-4-1. Creation of irrigation district--Filing petition--Number of electors required.
Twenty-five percent of the electors as defined in § 46A-4-2 owning or holding lands in any proposed district for irrigation may propose organization of an irrigation district by filing a petition with the Board of Water and Natural Resources in compliance with the requirements of this chapter. The minimum number of electors required to propose an irrigation district shall be three. However, if the number of electors in a proposed irrigation district is less than seven, all electors within the proposed district must join in the petition.
Source: SDC 1939, § 61.0801; SL 1947, ch 417, § 1; SL 1963, ch 455, § 1; SDCL, § 46-12-1; SL 1976, ch 275, § 1; SL 1984, ch 294, § 1; SL 1986, ch 376, § 1.
46A-4-2. Elector defined.
The term, elector, as used in this chapter and chapters 46A-5 to 46A-7, inclusive, means any person, the United States of America, the State of South Dakota or any political subdivision of the state, or any corporation authorized to do business in the state and owning not less than thirty-five acres of land within any district. If the elector is the owner or entryman of land in more than one division of the irrigation district and resides without the district, the elector is considered an elector in the division of the district in which the major portion of the elector's land is situated. If the qualifying thirty-five acres or more of land is sold under a contract for deed which is of record in the office of the register of deeds of the county, both the landowner and the individual purchaser of the land, as named in the contract for deed, shall be treated as an elector.
Source: SDC 1939, § 61.0801; SL 1947, ch 417, § 1; SL 1963, ch 455, § 1; SDCL § 46-12-2; SL 1979, ch 299, § 1; SL 1984, ch 294, § 2; SL 2011, ch 165, § 331.
46A-4-3. Petition to organize irrigation district--Number of signers--Boundaries to be described--Request for organization.
A petition to organize an irrigation district shall be presented to the Board of Water and Natural Resources and signed by twenty-five percent of the electors of the proposed irrigation district. The petition shall include the legal description of all the lands proposed for inclusion in the district and shall request that the proposed district be organized under the provisions of this chapter.
Source: SDC 1939, § 61.0802; SL 1947, ch 417, § 2; SL 1963, ch 455, § 2; SDCL, § 46-12-3; SL 1984, ch 294, § 3.
46A-4-3.1. Petition--Signing by electors--Form--Affidavit of circulator.
Each elector signing a petition shall add to the elector's signature, in the elector's own handwriting, the elector's post office address, the legal description of sufficient land to qualify as an elector, and the date of signing. The petition may contain any number of pages, and each page shall have an identical heading. Any number of identical petition forms may be circulated as a part of the petition. Every page of a petition containing signatures shall have below the signatures an affidavit by the circulator in substantially the following form:
State of South Dakota )
) SS
County of ______________ )
I, the undersigned, being first duly sworn, depose and say that I am the circulator of the foregoing petition containing __________ signatures; that each person whose name appears on the petition sheet personally signed the petition in the presence of the affiant; that the affiant believes that each of the signers is an owner or entryman of the land described opposite the signer's signature, to be included within the proposed district, and residing at the address written opposite the signer's name; and that affiant stated to every petitioner before the petitioner affixed his or her signature the legal effect and nature of the petition.
___________________________________
Circulator
Subscribed and sworn to before me this ________ day of ________, 20____.
___________________________________
Notary Public
Source: SL 1984, ch 294, § 4; SL 2011, ch 165, § 332.
46A-4-4. Petition for formation of irrigation district--Map of proposed district to accompany, contents.
When a petition is filed with the Board of Water and Natural Resources, it shall be accompanied by a map of the proposed district. The map shall show at an appropriate scale the location of the proposed canal or the works intended to irrigate the lands of the proposed district and the canals situated within the boundaries of the proposed district, except those canals that merely pass through the lands and do not irrigate any of those lands. If the water supply is from a natural stream, the flow of the stream shall be stated in cubic feet per second. If the water supply for the district is to be gathered by a storage reservoir, the map shall show the location of the proposed reservoir and shall give its capacity in acre-feet. Cross sections of proposed canals and all proposed dams and embankments shall be submitted in sufficient detail to show the contemplated method of construction. The capacity shall be stated in cubic feet per second of such proposed and such existing canals. The map and cross sections shall be certified as accurate by a competent irrigation engineer.
Source: SDC 1939, § 61.0802; SL 1947, ch 417, § 2; SL 1963, ch 455, § 2; SDCL, § 46-12-4; SL 1984, ch 294, § 5.
46A-4-4.1. Notice of hearing to consider petition--Publication--Contents--Approval of petition--Fixing date for election.
After a petition is filed with the Board of Water and Natural Resources, the board shall publish a notice of a hearing to consider the petition. The publication shall be once a week for two consecutive weeks in at least one official newspaper in each county where any portion of the proposed district will lie. The second publication may not be more than thirty nor less than twenty days before the hearing. The notice shall inform landowners of their right to inclusion or exclusion of their lands in the proposed district pursuant to §§ 46A-4-8 and 46A-4-12. After determining that the petition is in compliance with the provisions of this chapter, the board shall examine the petition, maps, related documents, and statements of interested persons. If necessary, the board shall further examine the proposed district, the works proposed to be utilized and the proposed location of the works. If the board determines that the proposed district is feasible and practicable, it shall by resolution approve the formation of an irrigation district as set forth in the petition, including any modifications of boards, and fix a date for an election on the question of formation.
Source: SL 1984, ch 294, § 6; SL 1986, ch 27, § 49.
46A-4-8. Inclusion in irrigation district of lands capable of being irrigated from works in proposed district.
Upon application of the owner or entryman prior to the board's hearing on the question of district formation, the Board of Water and Natural Resources shall include lands capable of being irrigated from the proposed works in the proposed district, if the board determines that the inclusion of the lands is feasible and will not unreasonably compromise the ability of feasibly irrigable lands originally proposed for inclusion by petitioners to obtain the water to which they would be entitled and capable of receiving from the proposed district.
Source: SDC 1939, § 61.0802; SL 1947, ch 417, § 2; SDCL, § 46-12-8; SL 1984, ch 294, § 10.
46A-4-9. Ditches or canals constructed before July 1, 1917, and lands watered by them--Exemption--Rights of ditches already constructed.
Any ditch or canal constructed before July 1, 1917, of sufficient capacity to water the lands for which the water was appropriated, together with the land subject to be watered by the ditch, canal, or franchise, is exempt from the operation of this chapter, unless an irrigation district is formed under the provisions of this chapter for the purpose of purchasing the ditches, canals, and franchises. This chapter and chapters 46A-5 to 46A-7, inclusive, do not affect the rights of ditches already constructed.
Source: SDC 1939, § 61.0801; SL 1947, ch 417, § 1; SL 1963, ch 455, § 1; SDCL § 46-12-9; SL 2011, ch 165, § 333.
46A-4-10. Holding or taxing nonirrigable land for irrigation purposes.
In no case may any land be held by any district or taxed for irrigation purposes if the land cannot from any natural cause be irrigated by the district.
Source: SDC 1939, § 61.0832; SDCL § 46-12-10; SL 2011, ch 165, § 334.
46A-4-12. Change in proposed boundaries by board--Exclusion of certain lands from district.
The Board of Water and Natural Resources may make changes in the proposed boundaries as it deems proper and shall exclude from the district proposed by the petitioners land that is not susceptible of irrigation by the proposed system of works. The board may not allow land which will not be benefited by irrigation by the system of works or a portion thereof to be included in the proposed district. Upon written request by an owner or entryman before the board's hearing on the question of formation, the board shall exclude the owner's or entryman's land from the proposed district.
Source: SDC 1939, § 61.0802; SL 1947, ch 417, § 2; SDCL § 46-12-12; SL 1984, ch 294, § 12; SL 2011, ch 165, § 335.
46A-4-14. District divided into divisions by board--Size and number--Election of directors--Terms--Assessment of property within district.
The Board of Water and Natural Resources shall make an order by resolution dividing the proposed district into three, five, or seven divisions as nearly equal in size as practicable. However, if the proposed irrigation district includes less than fifty electors, the board may establish the number of directors at not less than three and may permit the directors to be elected at large within the boundaries of the district. The board shall establish staggered terms of one to three years for the directors to be elected at the first election and all directors shall be elected for three-year terms thereafter. The county director of equalization shall assess the property within a district pursuant to this chapter.
Source: SDC 1939, § 61.0802; SL 1947, ch 417, § 2; SDCL, § 46-12-14; SL 1976, ch 275, § 2; SL 1984, ch 294, § 14; SL 1989, ch 82, § 35; SL 1991, ch 17 (Ex. Ord. 91-4), § 17.
46A-4-14.1. Division representing tribal or trust lands--Excepted from chapter.
In any existing or proposed irrigation district containing Indian tribal or trust lands, the Board of Water and Natural Resources shall establish one division to represent all such tribal and trust lands upon application of any holder of Indian trust land, including an Indian tribe. The appropriate tribe shall appoint the director for that division and shall fill any vacancy in that office. If a holder of trust lands who has applied for inclusion within the district does not wish to be represented by the tribal representative, the Board of Water and Natural Resources shall include the land in one of the other divisions of the district. The other provisions of this chapter pertaining to the nomination of director candidates, the election of directors, and the filling of vacant director positions do not apply to the division representing tribal and trust lands or to any director or candidate for director for the division representing tribal or trust lands.
Source: SL 1986, ch 376, § 2.
46A-4-15. Notice of election on proposed district--Date of election--Contents of notice--Publication--Ballot form.
The Board of Water and Natural Resources shall then give notice of an election for the purpose of determining if the proposed district shall be organized under the provisions of this chapter. The election shall be conducted as provided in §§ 6-16-4 to 6-16-6, inclusive.
Source: SDC 1939, § 61.0802; SL 1947, ch 417, § 2; SDCL, § 46-12-15; SL 1972, ch 239, § 2; SL 1978, ch 326, § 1; SL 1984, ch 294, § 15; SL 1998, ch 36, § 51.
46A-4-17. Persons qualified to vote at elections.
No person may vote at any election held under the provisions of this chapter unless the person is a qualified elector as provided in § 46A-4-2.
Source: SDC 1939, § 61.0802; SL 1947, ch 417, § 2; SDCL § 46-12-17; SL 2011, ch 165, § 336.
46A-4-18. Corporate ownership of lands within proposed or existing irrigation districts--Designation of agent to vote in behalf of elections for organization of district.
Where lands which are within a proposed or existing irrigation district are owned by a corporation, by the United States, or by this state, such corporation, and any department or agency of the United States or of this state, in order to participate in any district election, by an instrument in writing, executed and acknowledged by the proper officer or officers of such corporation, department, or agency, shall designate an agent to vote in its behalf. Such instrument shall be presented to and filed with the county auditor by such agent.
Source: SDC 1939, § 61.0802 as added by SL 1947, ch 417, § 2; SDCL, § 46-12-18.
46A-4-19. Election procedure--Applicability of general laws--Resolution declaring district organized--District as political subdivision.
If a majority of all the votes cast are "Irrigation District-Yes," the board shall, by resolution, declare the territory duly organized as an irrigation district, under the name and style designated. Upon filing of a true copy of the resolution with the secretary of state, the irrigation district shall become a political subdivision of the state with the authority, powers, and duties prescribed in chapters 46A-4 to 46A-7, inclusive.
Source: SDC 1939, § 61.0803; SDCL, § 46-12-19; SL 1984, ch 294, § 18; SL 1993, ch 256, § 71; SL 1998, ch 36, § 54.
46A-4-20. Resolution declaring district organized--Filing for record.
The Board of Water and Natural Resources shall file a copy of the resolution immediately for record in the office of the register of deeds of each county in which any of the land is situated. The board shall also immediately forward a copy of the resolution to the county auditor of each of the counties in which any portion of the district may lie.
Source: SDC 1939, § 61.0803; SDCL, § 46-12-20; SL 1984, ch 294, § 19.
46A-4-21. Election of director for each division.
There shall be elected at the same election one director for each division.
Source: SDC 1939, § 61.0803; SDCL, § 46-12-21; SL 1978, ch 325, § 1; SL 1978, ch 326, § 3; SL 1984, ch 294, § 20.
46A-4-22. Unentered public lands a major portion of district--Appointment of majority of directors by secretary of interior--Term of office.
If the majority of the lands within the district are unentered public lands, a majority of the board of directors shall be appointed by the secretary of the interior. The directors shall be residents of the state and are subject to removal from office, and any vacancy shall be filled by the secretary of the interior. The directors shall hold office until the unentered public lands within the district constitute a minority of the total area, after which a general election shall be called by the board of directors, when their successors shall be elected.
Source: SDC 1939, § 61.0803; SDCL § 46-12-22; SL 2011, ch 165, § 337.
46A-4-23. Directors elected at large as a result of appointment of majority of directors by secretary of interior--Term of office.
If a majority of said board of directors are appointed by the secretary of the interior, as provided for in this chapter, then the remaining directors shall be elected at large within the entire irrigation district for terms of three years each, which terms, however, shall be limited to and expire at the same time as the terms of members appointed by the secretary of the interior, after which the directors shall be elected in the same manner and for the same terms as provided herein in the case of the first general election of directors.
Source: SDC 1939, § 61.0804; SDCL, § 46-12-23.
46A-4-24. Directors elected at election to establish district--Terms of office--Tie election, procedure.
At the election to establish the district, if the district is divided into three divisions, the member of the board of directors from division one shall be elected for a term of three years; the member from division two shall be elected for a term of two years; and the member from division three shall be elected for a term of one year. If the district is divided into five or seven divisions, the members of the board from divisions one and two shall be elected for terms of three years; the members from divisions three and four shall be elected for terms of two years and the remaining members of the board shall be elected for a term of one year. In case of a tie, the election shall be determined as provided in chapter 12-21.
Source: SDC 1939, § 61.0804; SDCL, § 46-12-24; SL 1984, ch 294, § 21.
46A-4-25. Annual election of directors--Nomination--Election by receiving highest number of votes.
Each year after establishing the district, there shall be elected for a term of three years one or more members of the board of directors, as the case may be. The member of the board of directors from each division shall be nominated as provided in this chapter and shall be elected by receiving the highest number of votes cast by the electors of the division in the irrigation district for which the member is to serve as a director. The regular election of such districts shall be held on the last Tuesday in October.
Source: SDC 1939, § 61.0804; SDCL § 46-12-25; SL 1976, ch 276, § 1; SL 1984, ch 294, § 22; SL 2011, ch 165, § 338.
46A-4-26. Hours of voting.
Notwithstanding any other provision of this chapter and chapters 46A-5 to 46A-7, inclusive, the provisions of the general election law concerning the hours during which polls shall be open for voting shall apply to each irrigation district annual election.
Source: SDC 1939, § 61.0806; SDCL, §§ 46-12-25.1, 46-12-34; SL 1978, ch 327, § 1; SL 1998, ch 36, § 55.
46A-4-27. Directors to be electors of division--Residence.
Each director shall be an elector of the division which the director represents; or the director shall be an elector of the district, if elected at large. Each director shall reside within the district or within fifteen miles of the district boundary as provided by the bylaws.
Source: SDC 1939, § 61.0803; SDCL, §§ 46-12-21, 46-12-25.2; SL 1978, ch 325, § 2; SL 1984, ch 294, § 23; SL 2003, ch 232, § 1.
46A-4-27.1. Transmittal of election results.
The results of the election for the organization of the district shall be transmitted to the Board of Water and Natural Resources.
Source: SL 1984, ch 294, § 24; SL 1986, ch 376, § 3; SL 1998, ch 36, § 56.
46A-4-28. Nominating petition for directors--Filing--Form--Signers.
Subsequent to the election for organizing the district and for the first set of directors, the directors shall be nominated by filing with the auditor of the county or counties where the district is located, not less than forty-five days before any annual election, nominating petitions for the vacancies to be filled. The petitions shall be in the form prescribed by the State Board of Elections. To nominate directors by division, the petitions shall be signed by at least ten qualified electors of the district division or ten percent of the qualified electors of the division, whichever is less. To nominate directors at large, the petitions shall be signed by at least twenty-five qualified electors of the district or ten percent of the qualified electors of the district, whichever is less. No petition may contain the name of more than one candidate for any vacancy to be filled, but each elector may sign as many petitions as there are directors to be elected and no elector may sign more than one petition for any particular vacancy.
Source: SDC 1939, § 61.0805; SL 1947, ch 417, § 3; SDCL, § 46-12-26; SL 1975, ch 276, § 1; SL 1984, ch 294, § 25; SL 1985, ch 359; SL 1986, ch 376, § 4.
46A-4-30. Election not required where no question or contest--Retention of office by incumbent.
If there is no question to be submitted to the electors and if only one nominating petition for any vacancy to be filled has been filed, then no election may be held to fill the vacancy; and the secretary shall issue a certificate of election to the nominee in the same manner as to a successful candidate after election. If no nominating petition has been filed, the incumbent is entitled to remain in office for an additional term.
Source: SDC 1939, § 61.0805; SL 1947, ch 417, § 3; SDCL § 46-12-28; SL 1984, ch 294, § 27; SL 1987, ch 332, § 2; SL 2011, ch 165, § 339.
46A-4-31. Notices of election after organization of district--Publication and posting.
Before any election held subsequent to the organization of the district, the secretary of the board of directors shall publish notice of the time and place of the election once each week for at least two consecutive weeks prior to the election. The second publication shall be at least thirty days prior to the election. The notice shall be published in an official newspaper in each county where a portion of the district lies as designated by the board of directors. The secretary shall also post the notice in the office of the district.
Source: SDC 1939, § 61.0805; SL 1947, ch 417, § 3; SDCL, § 46-12-29; SL 1977, ch 367; SL 1984, ch 294, § 28.
46A-4-32. Elections after district organized and first set of directors elected--Voting by mail.
After the election to organize the district and for the first directors, all other elections may be conducted under a system of voting by mail as may be provided in the bylaws of the district. The board of directors of any irrigation district may provide in the bylaws of the district for a system of voting by mail for resident and nonresident electors alike, in any election subsequent to the one to organize the district and for the election of the first set of directors. Such system shall afford a secret ballot and provide the general safeguards included in the absentee voting law relating to general state elections. It shall, however, be optional with the electors to return their ballots by ordinary mail or by registered or certified mail and either with or without special delivery postage.
Source: SDC 1939, §§ 61.0804, 61.0856; SDCL, § 46-12-30; SL 1984, ch 294, § 29.
46A-4-33. Precinct election officers--Appointment by board of directors or electors.
Before the time for posting the notices, the board of directors shall appoint from each precinct participating in the election from the electors of the precinct, one clerk and two judges, who shall constitute a board of election for the precinct, in any election not conducted under a district system of voting by mail. If the board fails to appoint a board of election or the members appointed do not attend at the opening of the polls on the morning of election, the electors of the precinct present at the hour may appoint the board or supply the place of an absent member of the board of election. The board of directors shall, in its order appointing the board of election, designate the hour and place in the precinct where the election will be held.
Source: SDC 1939, § 61.0805; SL 1947, ch 417, § 3; SDCL § 46-12-31; SL 2011, ch 165, § 340.
46A-4-34. Chair of election board--Oaths.
One of the judges shall be chair of the election board and may administer all oaths required in the progress of an election. The chair may appoint judges and clerks, if during the progress of the election any judge or clerk ceases to act. Any member of the board of election, or any clerk of the board of election, may administer and certify oaths required to be administered during the progress of an election.
Source: SDC 1939, § 61.0806; SDCL § 46-12-32; SL 2011, ch 165, § 341.
46A-4-35. Precinct election boards--Oaths of members, administration, and certification.
Before opening the polls each member of the election board must take and subscribe an oath faithfully to perform the duties imposed by law. Any elector of the precinct may administer and certify such oath.
Source: SDC 1939, § 61.0806; SDCL, § 46-12-33.
46A-4-36. Canvass of votes by board--Time and place.
The board of directors shall meet at its usual place of meeting on the first Monday after each election and canvass the return. If at the time of meeting the returns from each precinct in the district in which the polls were opened have been received, the board of directors shall proceed to canvass the returns. However, if some of the returns have not been received, the canvass shall be postponed from day to day until all the returns have been received, or until postponements have been had. The canvass shall be made in public and by opening the returns and ascertaining the vote of the district for each person voted for and declaring the results of the canvass. No list, tally paper, or certificate returned from any election may be set aside or rejected for want of form if it can be satisfactorily understood.
Source: SDC 1939, § 61.0807; SDCL § 46-12-35; SL 2011, ch 165, § 342.
46A-4-37. Declaration of election results--Certificate of election.
The board of directors shall declare the person having the highest number of votes cast for each vacancy elected. The secretary shall immediately make out and deliver to that person a certificate of election, signed by the secretary and authenticated with the seal of the district.
Source: SDC 1939, § 61.0808; SDCL § 46-12-36; SL 1984, ch 294, § 30; SL 2011, ch 165, § 343.
46A-4-38. Statement of election results--Filing--Contents.
The secretary of the board of directors shall, as soon as the result is declared, enter upon the records of the board and file in the office of the auditor of each county in which the district is located a statement of the results. The statement shall show:
(1) The whole number of votes cast in the district and in each division of the district;
(2) The names of the persons voted for;
(3) The office to fill which each person was voted for;
(4) The number of votes given in each precinct for each of such persons; and
(5) The number of votes given in the district for each of such persons.
Source: SDC 1939, § 61.0808; SDCL § 46-12-37; SL 1975, ch 276, § 2; SL 2011, ch 165, § 344.
46A-4-39. Vacancy in office of board of directors--Filling--District treasurer appointed by board.
In case of a vacancy in the office of a member of the board of directors, the vacancy shall be filled by appointment by a majority of the remaining members of the board. Any director so appointed shall hold office until the next general election of the division and until the director's successor is elected and qualified. The district treasurer shall be appointed by the board of directors and shall serve at the pleasure of the board.
Source: SDC 1939, § 61.0808; SDCL § 46-12-38; SL 1984, ch 294, § 31; SL 1989, ch 82, § 36; SL 2011, ch 165, § 345.
46A-4-40. Elected directors--Qualifying--Term of office--Time for assumption of duties.
The directors elected in compliance with § 46A-4-21 may enter immediately into the duties of their respective offices upon qualifying as provided in §§ 46A-4-41 to 46A-4-43, inclusive, and shall hold their respective offices until the next general election for the irrigation district, when their successors are elected. The directors elected after the first election shall assume the duties of their office on the last Tuesday in November after their election and all incumbents shall hold their respective offices until their successors are elected and qualified.
Source: SDC 1939, §§ 61.0803, 61.0804; SDCL, § 46-12-39; SL 1976, ch 276, § 3; SL 1984, ch 294, § 32.
46A-4-41. Directors' and officers' oath of office--Official bonds.
Before assuming the duties of their offices, all directors and officers shall take and subscribe the official oath. The district treasurer shall execute an official bond, approved by the board of directors, in the sum of not less than one thousand dollars plus such additional amounts as shall be determined by the board of directors.
Source: SDC 1939, § 61.0804; SDCL, § 46-12-40; SL 1974, ch 55, § 47; SL 1977, ch 366, § 1; SL 1984, ch 294, § 33; SL 1989, ch 82, § 37.
46A-4-42. District appointed fiscal agent of United States to collect money for federal reclamation project--Additional bond required--Right to sue on bond.
If any district organized under this chapter is appointed fiscal agent of the United States or is authorized by the United States to make collections of money for and on behalf of the United States in connection with any federal reclamation project, the treasurer and each director shall execute an additional official bond in such sum as the secretary of the interior may require. The bond shall be conditioned for the faithful discharge of the duties of the office and the faithful discharge by the district of its duties as fiscal or other agent of the United States under any such appointment or authorization. The additional bonds shall be approved, recorded, and filed as provided in § 46A-4-41 for other official bonds, and any such additional bonds may be sued upon by the United States or any person injured by the failure of the officer or the district fully, promptly, and completely to perform their respective duties.
Source: SDC 1939, § 61.0804; SDCL § 46-12-41; SL 2011, ch 165, § 346.
46A-4-43. Bond of officers and directors--Form--Obligee--Cost of surety bonds, payment by the district.
All official bonds for which no specific provision is made shall be in the form prescribed by law for official bonds of county officers, except the obligee named in such bond shall be the district, and where approved surety company bonds are furnished, the cost of such bonds may be paid by the district.
Source: SDC 1939, § 61.0804; SDCL, § 46-12-42.
46A-4-44. Organization meeting of board of directors--Election of president and vice-president--Appointment of secretary.
On the regular November meeting in each year the directors shall meet and organize as a board for the ensuing year, elect a president and vice-president from their number and appoint a secretary who need not be a member of the board.
Source: SDC 1939, § 61.0809; SDCL, § 46-12-43; SL 1976, ch 276, § 4.
46A-4-45. Meetings of directors--Special meetings--Open to public--Quorum--Vote required for action.
The board of directors shall hold regular meetings in its office each month on a day specified in the bylaws of the district at such time as the president shall designate and shall hold such special meetings as may be required for proper transaction of business. All special meetings shall be ordered by the president of the board, the order to be entered of record, and five days' notice thereof shall be given to each member unless notice is either waived in writing or by the presence of the director at the special meeting. The president shall also order a special meeting upon the request of any two directors. The order shall specify the business to be transacted and no other business than that specified shall be transacted at a special meeting. All meetings of the board shall be public. A majority of the members shall constitute a quorum for the transaction of business. Upon all questions requiring a vote there shall be a concurrence of at least a majority of the board.
Source: SDC 1939, § 61.0810; SL 1953, ch 482; SDCL, § 46-12-44; SL 1976, ch 276, § 5; SL 1978, ch 328; SL 1984, ch 294, § 34.
46A-4-46. Records of board of directors open for inspection--Publication of statement of proceedings--Filing of list of expenditures.
All records of the board of directors shall be open to the inspection of any elector during business hours, and the board shall cause to be published at the close of each regular or special meeting a brief statement of the proceedings of the board in one newspaper of general circulation in the district, at the legal rate for advertising legal notices. The board shall file an itemized list of all expenditures approved at any such meeting at the office of the auditor of the county or counties where the district is located within ten days of any such meeting.
Source: SDC 1939, § 61.0810; SL 1953, ch 482; SDCL § 46-12-45; SL 1975, ch 276, § 3; SL 2011, ch 165, § 347.
46A-4-47. Compensation of district directors--Payment from district fund.
For the time actually and necessarily employed in the duties of their office and in attending and returning from the sessions of the board of directors, the district directors may receive travel and subsistence expense at the rates set pursuant to chapter 3-9. In addition, per diem, not to exceed the Board of Water and Natural Resources' per diem, may be paid each member for each day of actual service for attending meetings, hearings, or investigations of the irrigation district board.
Source: SDC 1939, § 61.0815; SL 1967, ch 341; SDCL, § 46-12-46; SL 1979, ch 299, § 2; SL 1984, ch 294, § 35; SL 1992, ch 319; SL 2024, ch 20, § 19.
46A-4-48. Powers and duties of board of directors of district--Distribution and printing of bylaws and procedures--Water rights appurtenant to land.
The board of directors shall manage and conduct the business affairs of the district, make and execute all necessary contracts, employ such agents, officers, and employees as may be required and prescribe their duties, adopt a seal for such district, establish equitable bylaws and procedures for the distribution and use of water, and generally perform all such acts necessary to carry out fully the purposes of this chapter and chapters 46A-5 to 46A-7, inclusive. The bylaws and procedures shall be printed in convenient form for distribution, and all water rights shall be appurtenant to the land.
Source: SDC 1939, § 61.0809; SDCL, § 46-12-47; SL 1993, ch 256, § 72.
46A-4-49. Interest in contract of district or acceptance of bribe by director or officer as felony.
No director or officer named in this chapter, or chapters 46A-5 to 46A-7, inclusive, may be interested in any manner, directly or indirectly, in any contract awarded, or to be awarded, by the irrigation district board, or in the profits to be derived from the contract. No such director or officer may receive any bonds, gratuity, or bribe. Any such director or officer who is interested in any manner, directly or indirectly, in any contract awarded, or to be awarded, by the board of directors provided for in chapters 46A-5 to 46A-7, inclusive, or in the profits derived from the contract, or who receives any bonds, gratuity, or bribe, is guilty of a Class 5 felony.
Source: SDC 1939, §§ 61.0816, 61.9917; SDCL § 46-12-48; SL 1983, ch 15, § 24; SL 2011, ch 165, § 348.
46A-4-50. Change of irrigation district boundaries--Exclusion of land within boundaries.
The boundaries of any irrigation district organized under the provisions of this chapter may be changed, and tracts of land included within the boundaries of the district at or after its organization under the provisions of this chapter may be excluded from the district in the manner prescribed in this chapter. However, neither a change of boundaries of the district nor an exclusion of lands from the district may impair or affect its organization, or its rights in or to property, or any of its rights or privileges, of whatever kind or nature. No such boundary change or exclusion of lands may affect, impair, or discharge any contract, obligation, lien, or charge for or upon which the district is or might become liable or chargeable, had such change of its boundaries not been made or had not any land been excluded from the district.
Source: SDC 1939, § 61.0818; SDCL § 46-12-49; SL 2011, ch 165, § 349.
46A-4-51. Common school and endowment irrigable lands within district--Sale--Inclusion in district.
All common school and endowment lands located within any irrigation district and susceptible of irrigation shall be offered for sale, according to law, within five years after the time water is available for irrigation, and after sale shall be included within the district as in this chapter provided for including additional lands.
Source: SDC 1939, § 61.0819; SDCL, § 46-12-50.
46A-4-52. Assent of secretary of interior necessary for change in boundaries of district contracting with United States.
If any contract has been made between the district and the United States as provided in chapters 46A-5 and 46A-6, no change may be made in the boundaries of the district. The board of directors may make no order changing the boundaries of the district until the secretary of the interior assents to the change in writing and the assent is filed with the board of directors.
Source: SDC 1939, § 61.0824; SDCL § 46-12-51; SL 2011, ch 165, § 350.
46A-4-53. Petition for inclusion of tract of land within boundaries of irrigation district--Contents.
The holder or holders of title or evidence of title, or the secretary of the interior for unentered public land, representing one-half or more of any body of lands which, taken together, constitute one tract of land, may file with the board of directors of such district a petition in writing, praying that the boundaries of such district may be so changed as to include such lands. The petition shall describe the boundaries of the parcel or tract of land and shall also describe the boundaries of the several parcels owned by the petitioners, if the petitioners be the owners, respectively, of distinct parcels, but such description need not be more particular than may be required when such lands are entered by the county director of equalization in the assessment book. Such petition must contain the assent of the petitioners to the inclusion in such district of the parcels or tracts of land described in the petition, and of which the petition alleges that they are respectively the owners; and it must be acknowledged in the same manner that conveyances of land are required to be acknowledged.
Source: SDC 1939, § 61.0819; SDCL, § 46-12-52; SL 1977, ch 366, § 9.
46A-4-54. Participation by conservators and personal representatives of estates.
A conservator or personal representative of an estate, who is appointed as such under the laws of this state and who, as conservator or personal representative, is entitled to the possession of the lands belonging to the estate which the conservator or personal representative represents, may on behalf of his or her ward or the estate which he or she represents, upon being authorized by the proper court, sign and acknowledge the petition provided in this chapter, and may show cause, as provided in this chapter, why the boundaries of a district should not be changed.
Source: SDC 1939, § 61.0828; SDCL § 46-12-53; SL 1993, ch 213, § 243; SL 1995, ch 167, § 188; SL 2011, ch 165, § 351.
46A-4-55. Change of boundaries of irrigation district--Notice of filing of petition, contents--Time and place of hearing by board of directors--Cost of proceedings, advancement by petitioners.
The secretary of the board of directors shall cause notice of the filing of a petition under § 46A-4-53 to be given and published in the same manner and for the same time that notices of special elections for the issuance of bonds are required to be published. The notice shall state the filing of such petition and the names of the petitioners, a description of the lands mentioned in the petition and the prayer of the petition; and it shall notify all persons interested, or that may be affected by such change of the boundaries of the district, to appear at the office of the board at a time named in the notice and show cause, in writing, if any they have, why the change in the boundaries of the district as proposed in the petition should not be made. The time to be specified in the notice at which they shall be required to show cause shall be the regular meeting of the board next after the expiration of the time for the publication of the notice. The petitioners shall advance to the secretary sufficient money to pay the estimated cost of all such proceedings for inclusion.
Source: SDC 1939, § 61.0820; SDCL, § 46-12-54.
46A-4-56. Hearing on petition to change boundaries--Adjournment--Assent to change.
The board of directors at the time and place mentioned in the notice, or at such other time to which the hearing of the petition may be adjourned, shall hear the petition and all objections to the petition presented in writing by any person. The failure of any person interested in the district or in the matter of the proposed change of its boundaries to show cause in writing is deemed an assent by the person to the change of the boundaries of the district as prayed for in the petition, or to such a change in the boundaries as will include a part of the lands. The filing of the petition with the board is deemed an assent by each petitioner to a change of the boundaries that may include the whole or any portion of the lands described in the petition.
Source: SDC 1939, § 61.0821; SDCL § 46-12-55; SL 2011, ch 165, § 352.
46A-4-57. Rejection of petition to change boundaries--Resolution of board--Contents.
If the board of directors deems it not in the best interests of the district that a change of its boundaries be made to include in the district the lands mentioned in the petition, the board shall reject the petition. However, if the board deems it in the best interest of the district that the boundaries of the district be changed and if no person interested in the proposed change of its boundaries shows cause in writing why the proposed change should not be made, or if having shown cause, withdraws the objection, or if having shown cause does not withdraw the objection and the board of directors deems it in the best interests of the district that the district boundaries be so changed, the board shall by resolution order that the boundaries of the district be changed to include in the district the lands mentioned in the petition, or some part of such lands. The resolution shall describe the exterior boundaries of the lands to be included within the boundaries of the district. The order shall describe the entire boundaries of the district as they will be after the boundary change, and for that purpose the board may cause a survey to be made of such portions of the boundaries as the board deems necessary.
Source: SDC 1939, § 61.0823; SDCL § 46-12-56; SL 2011, ch 165, § 353.
46A-4-58. Land not included in irrigation district unless owner or lessee obligated to pay assessments or charges.
No provision of this chapter authorizes or empowers the board of directors to include any land within the district unless the owner or lessee of the land pays or obligates the land to pay the same assessments or charges as all other lands have originally paid or have been obligated for, including the cost of studies, construction, operation, and maintenance charges and the cost of water deliveries.
Source: SDC 1939, § 61.0809; SDCL § 46-12-57; SL 1984, ch 294, § 38; SL 2011, ch 165, § 354.
46A-4-59. Payment by petitioners of share of original district assessments as condition for granting petition.
The board of directors to whom a petition to include land within the district is presented may require, as a condition precedent to the granting of the petition, that the petitioners shall severally pay to the district such prospective sums to be determined by the board, as nearly as the same can be estimated, as the petitioners or their grantors would have been required to pay to the district, as assessments, had the lands been included in the district at the time the district was originally formed.
Source: SDC 1939, § 61.0822; SDCL § 46-12-58; SL 2011, ch 165, § 355.
46A-4-60. Board order for election on filing of protests--Publication of notice--Ballots--Boundary descriptions.
Upon the adoption of the resolution specified in § 46A-4-57, if twenty-five percent of the electors of the district have made written protests against the proposed inclusion of lands within the district and have not withdrawn the protests, the board of directors shall order that an election be held within the district to determine whether the boundaries of the district shall be changed as mentioned in the resolution, and shall fix the time at which the election shall be held. The board shall cause notice of the election to be given, posted, and published, and the election shall be held and conducted. The returns of the election shall be made and canvassed, the result of the election ascertained and declared, and all things pertaining to the election conducted in the manner prescribed by chapter 46A-6 in case of a special election to determine whether bonds of an irrigation district shall be issued. The ballots cast at the election shall contain the words, "for change of boundary" or "against change of boundary," or equivalent terms. The notice of election shall describe the boundaries in such manner and terms that the boundary can be readily traced.
Source: SDC 1939, § 61.0824; SDCL § 46-12-59; SL 1976, ch 277, § 1; SL 2011, ch 165, § 356.
46A-4-61. Order of board in conformity with election results on boundary change.
If at the election a majority of all the votes cast are against the change of boundaries, the board of directors shall order that the petition be denied and may proceed no further in the matter. However, if a majority of the votes are in favor of the change, or if no election is held due to a lack of sufficient written protests as provided in § 46A-4-60, the board shall order the boundaries of the district to be changed in accordance with the resolutions adopted by the board. The order shall describe the entire boundaries of the district, and for that purpose the board may cause a survey of such portions of the district to be made as the board may deem necessary.
Source: SDC 1939, § 61.0825; SDCL § 46-12-60; SL 1976, ch 277, § 2; SL 2011, ch 165, § 357.
46A-4-62. Filing and recording of order changing boundaries--Effect of change.
If the boundaries of a district are changed, a copy of the order of the board of directors ordering the change, certified by the president and secretary of the board, shall be filed for record in the office of the Board of Water and Natural Resources and also the register of deeds office of each county within which are situated any of the lands of the district. The district shall remain an irrigation district as fully, to every intent and purpose, as if the lands which are included in the district by the boundary change had been included in the district at the original organization of the district.
Source: SDC 1939, § 61.0826; SDCL § 46-12-61; SL 2011, ch 165, § 358.
46A-4-63. Petition for change of boundaries of irrigation district--Recording in minutes of board of directors, admissibility as evidence.
Upon the filing of the copies of the order, as provided in § 46A-4-62, the secretary shall record in the minutes of the board of directors the petition; and the minutes, or a certified copy thereof, shall be admissible in evidence with the same effect as the petition.
Source: SDC 1939, § 61.0827; SDCL, § 46-12-62.
46A-4-64. Redivision of district following inclusion of land--Election precints.
In case of the inclusion of any land within any district by proceedings under this chapter, the board of directors shall, at least thirty days before the next succeeding general election, make an order redividing the district into three, five, or seven divisions, as nearly equal in size as may be practicable. The divisions shall be numbered, and one director shall thereafter be elected by each division. For the purposes of elections the board of directors shall establish a convenient number of election precincts in the district and define the precinct boundaries. The precincts may be changed from time to time as the board deems necessary.
Source: SDC 1939, § 61.0829; SDCL § 46-12-63; SL 2011, ch 165, § 359.
46A-4-65. Exclusion of contiguous tracts of land from district--Petition--Contents.
The owner in fee of any tract of land, entrymen of unpatented lands, and the secretary of the interior for unentered public lands, which constitute a portion of an irrigation district, may file with the board of directors of the district a petition praying that such tracts and any other contiguous tracts be excluded and taken from the district. The petition shall describe the boundaries of the land which the petitioners desire to have excluded from the district and also the lands of each of the petitioners that are included within the boundaries. The description of the lands need not be more particular nor certain than is required when the lands are entered in the assessment book by the county director of equalization; and the petition shall be acknowledged in the same manner and form as required in case of a conveyance of land.
Source: SDC 1939, § 61.0830; SDCL § 46-12-64; SL 2011, ch 165, § 360.
46A-4-66. Notice of petition to exclude land--Publication--Contents--Time for hearing.
The secretary of the board of directors shall publish a notice of the filing of the petition once each week for at least two successive weeks in some newspaper published in the county where the office of the board of directors is situated. If any portion of the territory to be excluded lies within another county, then the notice shall be published in a newspaper published within each of the counties. If no newspaper is published in such counties, notice shall be provided by posting the notice for the same time in at least three public places in the district. In the case of the posting of notices, one such notice shall be posted on the lands proposed to be excluded. The notice shall state the filing of the petition, the names of the petitioners, a description of the lands mentioned in the petition, and the prayer of the petition. The notice shall notify all persons interested in or that may be affected by the change of the boundaries of the district to appear at the office of the board, at a time named in the notice, and show cause in writing why the change in the boundaries of the district, as proposed in the petition, should not be made. The time to be specified in the notice at which they shall be required to show cause shall be at the next regular meeting of the board after the expiration of the time for the publication of the notice.
Source: SDC 1939, § 61.0831; SDCL § 46-12-65; SL 1972, ch 239, § 3; SL 2011, ch 165, § 361.
46A-4-67. Hearing on petition to exclude land--Assent of interested persons.
The board of directors, at the time and place mentioned in the notice or at the time to which the hearing of the petition may be adjourned, shall hear the petition and all objections to the petition, presented in writing by any person, showing cause why the petition should not be granted. The failure of any person interested in the district to show cause, in writing, why the tract or tracts of land mentioned in the petition should not be excluded from the district is deemed an assent by the person to the exclusion of the tract of land, or any part of the tract. The filing of the petition with the board is deemed an assent by each petitioner to the exclusion of the lands mentioned in the petition, or any part of the lands.
Source: SDC 1939, § 61.0832; SDCL § 46-12-66; SL 2011, ch 165, § 362.
46A-4-68. Resolution for exclusion of land when bonds or federal contract outstanding--Bondholders' or federal assent required--Assent waived by terms of bond issue.
If there are outstanding bonds of the district or if the district has entered into a contract with the United States as provided in chapters 46A-5 and 46A-6, the board of directors may adopt a resolution to the effect that the board deems it to be for the best interests of the district that the lands mentioned in the petition, or some portion of the lands, should be excluded from the district. The resolution shall describe the lands so that the boundaries of the lands can be readily traced. The holders of any such outstanding bonds may give their consent in writing to the effect that they severally consent that the board may make an order by which the lands mentioned in the resolution may be excluded from the district. If any contract has been made with the United States, the secretary of the interior may assent to the change. The assent may be acknowledged by the holders of the bonds in the same manner and form as required in case of a conveyance of land, except the assent of the secretary of the interior need not be acknowledged. The assent shall be filed with the board and shall be recorded in the minutes of the board. The minutes, or a certified copy of the minutes, are admissible in evidence with the same effect as the assent; but if the assent of the bondholders, and in case of any contract with the United States the assent of the secretary of the interior, is not filed, the board shall deny and dismiss the petition. However, if the resolution authorizing the issuance of the outstanding bonds explicitly provides that no bondholder assent is required for the exclusion of lands from the district or if the resolution provides that the bondholder assent is required only under certain specified conditions, then the terms of the resolution shall prevail and no bondholder assent need be obtained as provided in this section.
Source: SDC 1939, § 61.0834; SDCL § 46-12-67; SL 1976, ch 277, § 3; SL 2011, ch 165, § 363.
46A-4-69. Grant or denial of petition to exclude land from district--Best interests of district--Conditions for exclusion.
If the board of directors deems it not in the best interests of the district that the lands mentioned in the petition, or some portion of the lands, should be excluded from the district, the board shall order that the petition be denied. If the board deems it in the best interests of the district, the board may order that the lands mentioned in the petition, or some portion of the lands, be excluded from the district under the following conditions:
(1) Less than twenty-five percent of the electors of the district show cause in writing why the lands or some portion of the lands should not be excluded from the district or, having shown cause, withdraw their objection;
(2) There are no outstanding bonds of the district, or, if there are outstanding bonds of the district, no bondholder assent to exclusion is required as provided by § 46A-4-68 and by the resolution authorizing the issuance of the outstanding bonds; and
(3) There is no contract between the district and the United States.
Source: SDC 1939, § 61.0833; SDCL § 46-12-68; SL 1976, ch 277, § 4; SL 2011, ch 165, § 364.
46A-4-70. Election ordered on exclusion after objections filed--Publication of notice--Contents--Conduct of election.
If the assent of the holders of the bonds, when required, and in case of any contract with the United States the assent of the secretary of the interior be filed and entered of record and if there be written objections presented by twenty-five percent of the electors of the district which have not been withdrawn, then the board of directors may order an election to be held in the district to determine whether an order shall be made excluding such lands from the district as mentioned in the resolution. The notice of such election shall describe the boundaries of all the lands which it is proposed to exclude, and such notice shall be published once each week for at least two successive weeks prior to such election in a newspaper published within the county where the office of the board of directors is situated. If any portion of such territory to be excluded lies within another county or counties, then such notice shall be so published in a newspaper published in each of such counties. Such notice shall require the electors to cast ballots which shall contain the words "for exclusion" and "against exclusion," or words equivalent thereto. Such election shall be conducted in accordance with the general election laws of the state; provided no particular form of ballot shall be required.
Source: SDC 1939, § 61.0835; SDCL, § 46-12-69; SL 1972, ch 239, § 4; SL 1976, ch 277, § 5.
46A-4-71. Majority vote against exclusion, denial and dismissal of petition--Majority vote in favor of exclusion, order of board of directors excluding land from irrigation district, contents.
If at such election a majority of all the votes cast shall be against the exclusion of the lands from the district, the board of directors shall deny and dismiss such petition and proceed no further in the matter; but if a majority of such votes be in favor of the exclusion of the lands from the district, the board shall thereupon order that the lands mentioned in the resolution be excluded from the district. The order shall describe the boundaries of the district, should the exclusion of the lands from the district change the boundaries of the district, and for that purpose the board may cause a survey to be made of such portions of the boundaries as the board may deem necessary.
Source: SDC 1939, § 61.0836; SDCL, § 46-12-70.
46A-4-72. Order excluding land from irrigation district--Entry in minutes of board of directors--Filing and recording--Effect of order.
Upon the entry in the minutes of the board of directors of any of the orders hereinafter in this chapter mentioned, a copy thereof, certified by the president and secretary of the board, shall be filed for record in the office of the Board of Water and Natural Resources and also in the office of the register of deeds of each county within which are situated any of the lands of the district; and thereupon the district shall be and remain an irrigation district as fully, to every intent and purpose, as it would be had no change been made in the boundaries of the district or had the lands excluded therefrom never constituted a portion of the district.
Source: SDC 1939, § 61.0837; SDCL, § 46-12-71.
46A-4-73. Exclusion of land from irrigation district--Refunding of assessments.
In case of the exclusion of any lands under the provisions of this chapter, there shall be refunded, to any and all persons who have paid any assessment or assessments to such district for any lands so excluded, any sum or sums so paid. Such payments shall be made in the same manner as other claims against such district, and from such fund or funds as the board of directors may designate; but where such parties have realized benefits from the organization and operation of the district, the value of such benefits shall be deducted from the assessments paid in by such person and the balance, if any, refunded.
Source: SDC 1939, § 61.0840; SDCL, § 46-12-72.
46A-4-74. Exclusion of land from irrigation district--Effect of change on office of director.
If the lands excluded from any district shall embrace the greater portion of any division or divisions of such district, then the office of director for such division shall become and be vacant at the expiration of ten days from the final order of the board of directors excluding the lands, and such vacancy shall be filled by appointment as provided by this chapter.
Source: SDC 1939, § 61.0838; SDCL, § 46-12-73.
46A-4-75. Exclusion of land from irrigation district--Redivision of district by board of directors--Election precincts, establishment, change from time to time.
At least thirty days before the next general election of such district, the board of directors thereof shall make an order dividing such district into three, five, or seven divisions as nearly equal in size as practicable, which shall be numbered, and one director shall be elected by each division. For the purpose of election in such district, the board of directors must establish a convenient number of election precincts, and define the boundaries thereof, which precincts may be changed from time to time, as the board of directors may deem necessary.
Source: SDC 1939, § 61.0839; SDCL, § 46-12-74.
46A-4-76. Resolution to exclude unproductive lands from district--Reasons--Service on owners and residents--Publication of notice.
If the board of directors of an irrigation district finds that lands within the district are alkaline, slick, unsusceptible of economic leveling, water-logged, caliche, hard pan, or otherwise unproductive or incapable of carrying their proportionate district liabilities and obligations without recurring delinquencies, for which irrigation water is available, and that the major portion of such lands has been unfarmed and delinquent in payment of district taxes for the last two years or more, it may exclude such lands from the district. The board shall adopt a resolution stating its findings and declaring its intention to exclude such lands for one or more reasons set forth above, and shall require the record owner or any persons actually resident upon such land to show cause why the lands should not be excluded from the district. A copy of the resolution shall be served upon the record owners and actual residents, if any, upon the lands, personally if residents of the county in which the office of the board is located, or if not, by registered or certified mail addressed to such persons at their last known post office address, and by publication of the resolution at least once a week for three successive weeks in a newspaper of general circulation within the county in which the district office is located.
Source: SL 1976, ch 277, § 22; SDCL Supp, § 46-12-74.1; SL 1987, ch 29, § 34.
46A-4-77. Hearing on exclusion of unproductive lands--Time and place--Objections--Failure to object deemed consent--Rescission of resolution or adoption of second exclusion resolution.
The resolution of exclusion authorized by § 46A-4-76 shall fix a time for hearing the resolution at the office of the board of directors. The board of directors at the time and place designated in the resolution or at such time or times to which the hearing is adjourned, shall consider the resolution and hear any pertinent objections to exclusion of the lands. Such objections shall be filed in writing at least two days prior to the hearing. Failure of any person interested to show cause why the land should not be excluded by filing objections thereto shall be deemed consent to exclusion of the land from the district. Upon conclusion of the hearing, the board may sustain the objections to exclusion of lands and rescind its previous resolution, or may adopt a second resolution excluding the lands or a portion thereof from the district.
Source: SL 1976, ch 277, § 23; SDCL Supp, § 46-12-74.2.
46A-4-78. Motion to reconsider exclusion of unproductive lands--Time--Appeal to circuit court--Contents--Trial--Filing of final resolution.
Any person aggrieved by the final action of the board of directors acting pursuant to the provisions of § 46A-4-77 on a resolution of exclusion may file a written motion for reconsideration within ten days after adoption of the final resolution. Such person may appeal to the circuit court for the county in which the lands are located within twenty days after consideration by the district board of the motion for reconsideration. The appeal shall consist of notice and a recital of the proceedings taken, the facts and matters involved, and the reasons why the appellant is aggrieved by the action of the board. The appeal shall be tried before the circuit court for the county. The circuit court shall have jurisdiction to hear, decide, adjudicate, and make any and all necessary orders and judgments in the premises as in civil actions. If a motion for reconsideration or an appeal is not taken within the time allowed, the final resolution shall be filed for record in the clerk of courts and in the office of the board of county commissioners and the county treasurer of each county in which the excluded lands are located.
Source: SL 1976, ch 277, § 24; SDCL Supp, § 46-12-74.3.
46A-4-79. Rearrangement or reapportionment of district divisions upon exclusion of lands--Effects of exclusion--Procedural defects--Resolutions and bylaws.
Upon exclusion of any lands, the board of directors may make such rearrangement or reapportionment of divisions within the district as the board deems advisable. No exclusion of lands may impair or affect the district organization or its property or rights therein, or any other rights or privileges, nor may it affect, impair, or discharge any contract obligation, lien, or charge for or upon which it was or might become liable or chargeable had the exclusion of land not been made. Lands excluded by an order of the board are liable for district contracts, debts, or obligations thereafter created. No omission or informality in the proceedings for exclusion of lands may invalidate such proceedings if the substantial rights of the parties affected were recognized and the proceedings were fairly conducted. The board of directors may make any resolutions and bylaws necessary in the proceedings.
Source: SL 1976, ch 277, § 25; SDCL Supp, § 46-12-74.4; SL 1993, ch 256, § 73.
46A-4-80. Subirrigated land--Relief from district assessments--Recording of suspension order.
If any tract of land, or any part of a tract of land, to which the water right attached at any time becomes subirrigated, to the extent that water is no longer of any benefit on the land for irrigation purposes, the owner or entryman of the land may apply to the irrigation district board to relieve the subirrigated land from the district assessment as provided in chapter 46A-7. In the application, the landowner or entryman releases all claim to the water right as may belong to or has been applied to or upon the land, until the land may be drained and water for irrigation is again beneficial. The landowner or entryman may apply for a permit to transfer the water right to any other lands to which the water may be beneficially applied and to have the new or additional tract included within the boundaries of the district as provided by law and the exclusion of such lands and the inclusion of the new tract as provided in this section. The board may thereupon make the appropriate order of suspension of assessments, of the exclusion and inclusion of the lands and the transfer of the water right. A certified copy of the order shall be recorded in the office of the register of deeds in the county in which the land is situated. After the order has been recorded, all the obligations against the land from which the water right has been taken, arising by reason of the water right, shall be canceled and the obligation shall follow and attach with the water right to the land so included, if any.
Source: SDC 1939, § 61.0809; SDCL § 46-12-75; SL 2011, ch 165, § 365.
46A-4-81. Dissolution of district--Petition by majority of assessment payers--Calling of election by board--Notice of election.
If a majority of the assessment payers, representing a majority of the number of acres of irrigable land within any irrigation district, petition the board of directors to call a special election for the purpose of submitting to the qualified electors of the irrigation district a proposition to vote on the discontinuance of the irrigation district and a settlement of its bonded and other indebtedness, the board of directors shall call an election, setting forth the object of the election. The board shall publish a notice of the election in some newspaper in each of the counties in which the district is located, and in which a newspaper is published, for a period of thirty days before the election, setting forth the time and place for holding the election in each of the voting precincts in the district. The board shall also post a written or printed notice of the election in some conspicuous place in each of the voting precincts.
Source: SDC 1939, § 61.0848; SDCL § 46-12-76; SL 2011, ch 165, § 366.
46A-4-82. Dissolution of district contracting with United States--Assent of secretary of interior--Recording.
If a contract has been made with the United States, no action may be taken by the board of directors for the dissolution of any irrigation district, as provided in this chapter, unless the assent of the secretary of the interior to the dissolution in writing has been filed with the secretary of the board of directors and a certified copy of the assent filed with the register of deeds of each county where the district lands are situated.
Source: SDC 1939, § 61.0848; SDCL § 46-12-77; SL 2011, ch 165, § 367.
46A-4-83. Election ballots on dissolution of district--Form and contents--Conduct of election.
The directors shall provide ballots to be used at an election called pursuant to § 46A-4-81, on which shall be written or printed the words: "For dissolution, Yes," and "For dissolution, No." The ballots shall be placed in the hands of the proper election officers in the several voting precincts of the district before the opening of the polls on the day of the election. The election shall be conducted in all respects in the same manner as provided for the election of officers of the district.
Source: SDC 1939, § 61.0848; SDCL § 46-12-78; SL 2011, ch 165, § 368.
46A-4-84. Certification of election returns and ballots--Canvass of returns--Declaration of result--Recording.
The return of the election, together with the ballots cast at the election, shall be certified by the election boards of the district to the board of directors within three days after the election. The board shall, on or before the third day after the election, canvass the returns and declare the result of the election. The result shall be at once recorded in the records of the district board.
Source: SDC 1939, § 61.0848; SDCL § 46-12-79; SL 2011, ch 165, § 369.
46A-4-85. Vote against dissolution precludes another election during year.
If a majority of the votes are "For dissolution, No," there may not be another election upon the question of a dissolution of the district during the year in which the election was held.
Source: SDC 1939, § 61.0848; SDCL § 46-12-80; SL 2011, ch 165, § 370.
46A-4-86. Majority vote for dissolution of irrigation district--Notice by board of directors to creditors of district--Settlement of claims.
If a majority of the votes shall be "For dissolution, Yes," then the board of directors shall immediately notify all persons having claims against the district of the result of such election, and may proceed to adjust, settle, and compromise any and all such claims, in whatever form the indebtedness of such district may be.
Source: SDC 1939, § 61.0848; SDCL, § 46-12-81.
46A-4-87. Raising of money to pay debts--Valuation of property by appraisers--Appointment--Report.
For the purpose of raising money to pay any indebtedness of the district, the board of directors may sell and dispose of the canal, franchises, and other property belonging to the district at not less than a valuation to be fixed by a board of three appraisers. One member of the board of appraisers shall be appointed by the board of directors of the district and one shall be appointed by the board of county commissioners of the county in which the district was originally organized. The two appraisers shall elect a third. The board of appraisers shall be sworn by any officer authorized by law to administer oaths and who has an official seal, to appraise the canal, franchises, and other property of the district at its cash value. As soon as practicable, the appraisers shall make an appraisement and shall report in writing their appraisement of all the property owned by the district to the board of directors.
Source: SDC 1939, § 61.0848; SDCL § 46-12-82; SL 2011, ch 165, § 371.
46A-4-88. Sale of property by board of directors--Advertisement--Notice of sale--Consideration of bids of purchasers by board of directors.
The board of directors shall advertise the property for sale at least four weeks in such manner as in the judgment of the board will be to the best interests of the district; and shall state in such advertisement a description of the property, and the time and place when bids in writing for the same shall be opened and considered. At the time designated in such notice, or as soon thereafter as such board can meet, it shall open and consider all bids received for the purchase of the property.
Source: SDC 1939, § 61.0848; SDCL, § 46-12-83.
46A-4-89. Rejection of bids for purchase of property--Private negotiations for sale--Deferred payments--Lien--Foreclosure.
The board of directors may reject any bids that are not, in the judgment of the board, a fair and just consideration for the property. After bids are thus rejected by the board, the board may by private negotiations with any person sell and convey by deed, executed by the board, all of the property for part cash and part in deferred payments, bearing the same interest as the bonded indebtedness of the district. If the district has no bonded indebtedness, the interest upon the deferred payments shall be as agreed upon by the board and the purchaser, not exceeding the rate allowed by law. The deferred payments are a lien upon all the property thus sold by the board and have the same force and effect as a mortgage against the property and may, when due, be foreclosed in the manner provided by law for the foreclosure of mortgages.
Source: SDC 1939, § 61.0848; SDCL § 46-12-84; SL 2011, ch 165, § 372.
46A-4-90. Additional security for deferred payments--Collection.
In addition to the lien, the board of directors may require the purchaser of the property to furnish the district with additional security upon all deferred payments. All notes, bonds, mortgages, and other securities shall be made out to and in the name of the irrigation district, and shall be, together with the money received from the sale, deposited with the county treasurer of the county in which the district was originally organized. The notes, bonds, mortgages, and other securities may be paid out only upon warrants duly authorized by the board of directors of the district, signed by the president and secretary of the board. All actions at law or in equity brought for the purpose of collecting such indebtedness, shall be brought in the name of the district by counsel employed by the district board. If the board is disorganized, such employment shall be by the board of county commissioners.
Source: SDC 1939, § 61.0848; SDCL § 46-12-85; SL 2011, ch 165, § 373.
46A-4-91. Bonds and obligations of district--Redemption after sale of property on dissolution of district.
If bonds and other obligations of irrigation districts are issued, the bonds and obligations are subject to redemption by the board of directors of any irrigation district, as soon as the property and franchise of the district are sold after the district has elected to dissolve as a district, as provided in this chapter.
Source: SDC 1939, § 61.0848; SDCL § 46-12-86; SL 2011, ch 165, § 374.
46A-4-92. Payment of outstanding obligations with proceeds of property sales--Prices paid.
After a sale of the property and franchises of the district, the board of directors shall, with the amount realized from the sale, together with other funds of the district, make settlement, payment, and redemption, if possible, of all outstanding bonded and other indebtedness of the district. However, in no case may the district pay more than the par value of the outstanding bonds with interest up to the time of payment plus any redemption premium agreed upon by the district at the time the outstanding bonds are issued.
Source: SDC 1939, § 61.0848; SDCL § 46-12-87; SL 1976, ch 277, § 6; SL 2011, ch 165, § 375.
46A-4-93. Proceeds of sale of property on dissolution of irrigation district insufficient to pay debts--Assessments against lands in the district.
In case the amount realized from the sale of such district property, together with other money of the district, shall be insufficient for the payment of all the indebtedness of such district, assessments shall continue to be made against the lands included in the district, in the manner provided by law for assessments to pay bonds and other indebtedness of irrigation districts, until a sufficient amount is raised to pay in full all obligations of such district.
Source: SDC 1939, § 61.0848; SDCL, § 46-12-88.
46A-4-94. Disposal of property--Payment of obligations--Report of board--Filing and recording--Contents--Time for action on unpaid claim.
After all the property of the district is disposed of and all of the obligations of such district are paid, the directors of the district shall file in the office of the county auditor of each county in which the district is located, and in the office of the Board of Water and Natural Resources, a report attested by the secretary and under the seal of the board of directors, stating that the district has disposed of its property and franchises and is disorganized and dissolved. The report shall be recorded in the miscellaneous record of the counties. If any person who has any claim against the district that is not settled or disposed of at the time of the filing of the report fails or neglects to bring suit upon the claim within five years from the time of the filing of the report, the claim is forever barred against the district as well as against all persons and property in the district.
Source: SDC 1939, § 61.0848; SDCL § 46-12-89; SL 2011, ch 165, § 376.
46A-4-95. Validation of previously created irrigation districts.
All irrigation districts, created under the provisions of this chapter, and any addition to or deletion from any such district, heretofore established or purporting to be established or adjusted pursuant to the provisions of this chapter and chapters 46A-5 to 46A-7, inclusive, and having a de facto existence of at least one year, are hereby declared to be valid and legally created political subdivisions of the state. The regularity and validity of the creation of the irrigation districts or any boundary adjustments of the districts are not open to question in any court in this state. All acts and proceedings of any such irrigation district or of its board of directors, or both, leading up to the authorization and execution of an existing contract between any such irrigation district and the United States of America, and all acts and proceedings of any such irrigation district or of its board of directors, or both, leading up to the issuance and deliverance of bonds of any such irrigation district are hereby legalized, ratified, confirmed, and declared valid to all intents and purposes. All such existing contracts and outstanding bonds are hereby legalized and declared to be valid and legal obligations of and against the irrigation district executing or causing the execution of the contracts or bonds.
Source: SL 1977, ch 366, § 8; SDCL Supp, § 46-12-90; SL 2011, ch 165, § 377.
46A-5-1
Use of water and property for irrigation of lands--Public use--Regulation and control
by state.
46A-5-2
Resolution of board of directors--General plan of proposed operation, contents.
46A-5-3
Determination of construction costs by board of directors--Examinations and
surveys--Surveys, maps, plans, and estimates, certification by irrigation engineer.
46A-5-4
Determination of funds required--Authorization, issuance, and sale of bonds--Election--Amount of bonds.
46A-5-4.1
Eligibility to vote in bond election.
46A-5-5
Contract with United States for construction, operation, and maintenance of works--Bonds not deposited in connection therewith, issuance unnecessary--Issuance of
bonds for funds in addition to amount of federal contract.
46A-5-6
Location of line of canal and branches--Purchase or condemnation of property.
46A-5-7
Construction of works for collection and distribution of water--Furnishing of water
for irrigation.
46A-5-8
Right-of-way for laterals--Duties of board of directors--Eminent domain.
46A-5-9
Right-of-way for works for collection of water over state lands and waters.
46A-5-10
Construction of works across streams, watercourses, highways, and railways.
46A-5-11
Property acquired for project--Title vested in district--Management by board of
directors.
46A-5-12
Acquisition of property--Actions and proceedings by and against district.
46A-5-13
Adoption of plan of works--Notice of plan and call for bids--Publication--Contents.
46A-5-14
Contractor's bond--Sureties--Approval by board of directors--Terms.
46A-5-15
Work done under engineer--Approval by board of directors.
46A-5-16
Contracts for material--Lowest responsible bidder--Security for bid, amount,
forfeiture.
46A-5-17
Bids unnecessary for contract with United States.
46A-5-18
Contracts with United States concerning federal reclamation acts and water supply.
46A-5-19
Deposit of district bonds as security for federal contract.
46A-5-20
District bonds not deposited as security for federal contract.
46A-5-21
District appointment as fiscal agent of United States--Collection of money for federal
reclamation projects.
46A-5-22
Obsolete.
46A-5-23
Flow of water through ditches and canals at full capacity.
46A-5-24
Measuring devices, placement--System for interchange of water--Duties of board of
directors.
46A-5-25
Apportionment of water by board.
46A-5-26
Liability for negligence in delivering or failure to deliver water--Notice to district
chair--Time for service of notice and action.
46A-5-27
Diversion of water from channel unauthorized without payment of just
compensation.
46A-5-28
Appropriation from district general fund for advertising.
46A-5-29
General fund of district--Appropriation by board of directors for support of county
fair, maximum amount.
46A-5-30
Repealed.
46A-5-31
Contract to supply water to users for nonirrigation purposes--Authority of district to
enter.
46A-5-1. Use of water and property for irrigation of lands--Public use--Regulation and control by state.
The use of all water required for irrigation of lands of any district formed under the provisions of chapter 46A-4, together with canals and ditches already constructed, the rights-of-ways for canals and ditches, sites for reservoirs and pumping plants, and all other property required in fully carrying out the pertinent provisions of this title, is hereby declared to be a public use, subject to the regulation and control of the state in the manner prescribed by law.
Source: SDC 1939, § 61.0810; SL 1953, ch 482; SDCL, § 46-13-1.
46A-5-2. Resolution of board of directors--General plan of proposed operation, contents.
As soon as practicable after the organization of any such irrigation district, the board of directors shall by a resolution entered on its record, formulate a general plan of its proposed operation, in which it shall state what constructed works or other property it proposes to purchase and the cost of purchasing the same; and further what construction work it proposes to do and how it proposes to raise the funds for carrying out such plan.
Source: SDC 1939, § 61.0901; SDCL, § 46-13-2.
46A-5-3. Determination of construction costs by board of directors--Examinations and surveys--Surveys, maps, plans, and estimates, certification by irrigation engineer.
To ascertain the cost of any construction work, the board of directors shall cause surveys, examinations, and plans to be made that demonstrate the practicability of the plan, and furnish the proper basis for an estimate of the cost of carrying out the construction work. All surveys, examinations, maps, plans, and estimates shall be made under the direction of and certified by a competent irrigation engineer.
Source: SDC 1939, § 61.0901; SDCL, § 46-13-3; SL 1995, ch 253, § 1.
46A-5-4. Determination of funds required--Authorization, issuance, and sale of bonds--Election--Amount of bonds.
The board of directors shall determine the amount of money necessary to be raised and, if a bond issue is contemplated, the bonds shall be authorized, issued, and sold as provided in chapter 6-8B, if a majority of all electors voting at the bond election authorize the bond issue. Except that no bonds may be issued for more than the actual estimated cost of formulating the general plan of proposed operation, including surveys, examinations, and plans that demonstrate the practicality of the plan, and the actual estimated cost of the purchases and construction work described in the general plan of proposed operation, as finalized. Estimated expenses relating to the issuance and sale of the bonds including bond printing expenses, bond registration fees, legal fees, fiscal agency fees, publication costs and election expenses, and capitalized interest during the estimated construction period and for one year thereafter may also be paid out of the proceeds of the bond issue.
Source: SDC 1939, § 61.0901; SDCL, § 46-13-4; SL 1976, ch 277, § 7; SL 1977, ch 366, § 2; SL 1984, ch 43, § 120; SL 1995, ch 253, § 2.
46A-5-4.1. Eligibility to vote in bond election.
Any other provision of law notwithstanding, only those electors whose land may be assessed to finance bonds are eligible to vote in an election held pursuant to the provisions of § 46A-5-4.
Source: SL 1984, ch 295, § 2.
46A-5-5. Contract with United States for construction, operation, and maintenance of works--Bonds not deposited in connection therewith, issuance unnecessary--Issuance of bonds for funds in addition to amount of federal contract.
If any contract is made with the United States as provided in § 46A-5-18 and bonds are not to be deposited with the United States in connection with such contract, bonds need not be issued or, if required to raise funds in addition to the amount of such contract, shall be issued only in the amount needed in addition thereto.
Source: SDC 1939, § 61.0810; SL 1953, ch 482; SDCL, § 46-13-5.
46A-5-6. Location of line of canal and branches--Purchase or condemnation of property.
The board of directors, its agents, and employees may enter upon any land within the district to make surveys and may locate the line of any canal and the necessary branches for the location. The board of directors may acquire, either by purchase or condemnation, all lands and waters and other property necessary for the construction, use, maintenance, repair, and improvement of any canal, canals, power plants, pumping stations, and lands for reservoirs for storage of water and all necessary appurtenances. The board of directors may acquire by purchase or condemnation, for the use of the district, any irrigation works, power plant, pumping station, ditches, canals, or reservoirs already constructed. In case of purchase, the bonds of the district may be used at their par value in payment, as provided in this title.
Source: SDC 1939, § 61.0810; SL 1953, ch 482; SDCL § 46-13-6; SL 1976, ch 277, § 8; SL 2011, ch 165, § 378.
46A-5-7. Construction of works for collection and distribution of water--Furnishing of water for irrigation.
The board of directors may also construct the necessary dams, reservoirs, pumping station, and works for the collection and distribution of water for the district and do any and every lawful act necessary to be done that sufficient water may be furnished to each tract of land in the district for irrigation purposes.
Source: SDC 1939, § 61.0810; SL 1953, ch 482; SDCL, § 46-13-7; SL 1976, ch 277, § 9.
46A-5-8. Right-of-way for laterals--Duties of board of directors--Eminent domain.
The board of directors shall make all necessary arrangements for right-of-way for laterals from the main canal to each tract of land subject to assessment, and if necessary the board shall exercise its right of eminent domain to procure right-of-way for laterals. This section does not deprive any person entitled thereto from exercising the right of eminent domain.
Source: SDC 1939, § 61.0809; SDCL, § 46-13-8; SL 1993, ch 256, § 74.
46A-5-9. Right-of-way for works for collection of water over state lands and waters.
The right-of-way is hereby given, dedicated, and set apart to locate, construct, and maintain such works over and through any of the lands which are or may be the property of the state; and there also is given, dedicated, and set apart for the use and purposes aforesaid all water and water rights owned by the state within the district.
Source: SDC 1939, § 61.0922; SDCL, § 46-13-9.
46A-5-10. Construction of works across streams, watercourses, highways, and railways.
The board of directors may construct works across any stream of water, watercourse, street, avenue, highway, railway, canal, ditch, or flume that the route of the canal may intersect or cross, in such manner as to afford security to life and property. However, the board shall restore the stream of water, watercourse, street, avenue, highway, railway, canal, ditch, or flume to its former state as near as may be, or in a manner that will not unnecessarily impair its usefulness. Any company whose railroad is intersected or crossed by such works may unite with the board in forming the intersections and crossings, and grant the privileges specified in this section. If the railroad company and the board, or the owners and controllers of the property, thing, or franchise to be crossed, cannot agree upon the amount to be paid for the crossing, or the points or the manner of the crossing, the issues shall be ascertained and determined in all respects as provided in condemnation proceedings.
Source: SDC 1939, § 61.0922; SDCL § 46-13-10; SL 2011, ch 165, § 379.
46A-5-11. Property acquired for project--Title vested in district--Management by board of directors.
The legal title to all property acquired under the provisions of chapters 46A-4 to 46A-7, inclusive, shall immediately and by operation of law vest in such irrigation district in its corporate name, and shall be held by such district in trust for, and is hereby dedicated and set apart to, the uses and purposes set forth in said chapters. The board of directors is hereby authorized to hold, use, acquire, manage, occupy, and possess such property as herein provided.
Source: SDC 1939, § 61.0811; SDCL, § 46-13-11.
46A-5-12. Acquisition of property--Actions and proceedings by and against district.
The board of directors may take conveyances or other assurances for all property acquired by it under the provisions of chapters 46A-4 to 46A-7, inclusive, in the name of the irrigation district, for the uses and purposes provided in this chapter. The board may institute and maintain any actions and proceedings at law or in equity necessary or proper in order to carry out fully the provisions of chapters 46A-4 to 46A-7, inclusive, and to enforce, maintain, protect, or preserve any rights, privileges, and immunities created by those chapters or acquired in pursuance of such rights, privileges, and immunities. In all actions or proceedings the board may sue, appear, and defend, in person or by attorney, and in the name of the irrigation district.
Source: SDC 1939, § 61.0813; SDCL § 46-13-12; SL 2011, ch 165, § 380.
46A-5-13. Adoption of plan of works--Notice of plan and call for bids--Publication--Contents.
After adopting a plan of canals, storage reservoirs, and works, the board of directors shall publish notice of the plan, not less than twenty days after it is adopted, in one newspaper published in each of the counties in which the district is situated, if a newspaper is published in the counties, and in such other newspapers as the board deems advisable, calling for bids for the construction of the work or any portion of the work. If less than the whole work is advertised, the portion so advertised shall be particularly described in the notice. The notice shall set forth that plans and specifications can be seen at the office of the board, and that the board will receive sealed proposals for the work, and that the contract will be let to the lowest responsible bidder. The notice shall state the time and place for opening the proposals, which at the time and place shall be opened in public. As soon as convenient after the bids are opened, the board shall let such work, either in part or as a whole, to the lowest responsible bidder. Alternatively, the board may reject any bid and readvertise for proposals, or may proceed to construct the work under its own superintendence.
Source: SDC 1939, § 61.0919; SDCL § 46-13-13; SL 2011, ch 165, § 381.
46A-5-14. Contractor's bond--Sureties--Approval by board of directors--Terms.
The person or persons to whom a contract may be awarded shall enter into a bond with good and sufficient sureties, to be approved by the board of directors, payable to such district for its use, in an amount equal to the contract price for the faithful performance of the contract.
Source: SDC 1939, § 61.0919; SDCL, § 46-13-14; SL 1976, ch 277, § 10.
46A-5-15. Work done under engineer--Approval by board of directors.
The work shall be done under the direction and to the satisfaction of an engineer and be approved by the board of directors.
Source: SDC 1939, § 61.0919; SDCL, § 46-13-15; SL 1995, ch 253, § 3.
46A-5-16. Contracts for material--Lowest responsible bidder--Security for bid, amount, forfeiture.
Contracts for the purchase of material shall be awarded to the lowest responsible bidder. Bidders may be required to put up a certified check in the sum of five percent of the bid, to be forfeited to the district in the event that the bidder does not execute the contract if awarded to him.
Source: SDC 1939, § 61.0919; SDCL, § 46-13-16.
46A-5-17. Bids unnecessary for contract with United States.
The provisions of §§ 46A-5-13 to 46A-5-16, inclusive, do not apply in case of any contract between the district and the United States.
Source: SDC 1939, § 61.0919; SDCL § 46-13-17; SL 2011, ch 165, § 382.
46A-5-18. Contracts with United States concerning federal reclamation acts and water supply.
The board of directors may enter into any obligation or contract with the United States for the construction, operation, and maintenance of the necessary works for the delivery and distribution of water under the provisions of the federal reclamation acts and all acts amendatory thereof, or supplementary thereto, and the rules and regulations established under such acts, as amended to January 1, 2011. The board may contract with the United States for a water supply under any act of Congress providing for or permitting such contract.
Source: SDC 1939, § 61.0810; SL 1953, ch 482; SDCL § 46-13-18; SL 2011, ch 165, § 383.
46A-5-19. Deposit of district bonds as security for federal contract.
If any contract is made with the United States as provided in this chapter, bonds of the district may be deposited with the United States at ninety percent of their par value, to secure the amount to be paid by the district to the United States under any such contract. The bonds may be held by the United States, and if deemed desirable, or if the appraised value of the land is double the bonded indebtedness, the bonds may be sold by the United States. The net proceeds received from the sale of the bonds shall be applied to the liquidation of the contract indebtedness of the district to the United States. The interest and principal on the bonds shall be provided for by assessment and levy as in the case of other bonds of the district and regularly paid to the United States, to be applied as provided in the contract.
Source: SDC 1939, § 61.0810; SL 1953, ch 482; SDCL § 46-13-19; SL 2011, ch 165, § 384.
46A-5-20. District bonds not deposited as security for federal contract.
If bonds of the district are not deposited with the United States pursuant to § 46A-5-19, the board of directors shall include as part of any levy or assessment provided for in this title an amount sufficient to meet each year all payments accruing under the terms of any contract made pursuant to § 46A-5-18.
Source: SDC 1939, § 61.0810; SL 1953, ch 482; SDCL § 46-13-20; SL 2011, ch 165, § 385.
46A-5-21. District appointment as fiscal agent of United States--Collection of money for federal reclamation projects.
The board of directors may accept on behalf of the district appointment of the district as fiscal agent of the United States or authorization of the district by the United States to make collections of the money for and on behalf of the United States in connection with any federal reclamation project, organized under this title as an irrigation district, whereupon the district may act and assume the duties and liabilities incident to such action. The board may do anything required by the federal statutes in connection with such duties and liabilities, and all things required by the rules and regulations established by any department of the federal government in regard to such duties and liabilities.
Source: SDC 1939, § 61.0810; SDCL § 46-13-20; SL 1953, ch 482; SL 2011, ch 165, § 386.
46A-5-23. Flow of water through ditches and canals at full capacity.
The board of directors shall keep the water flowing through the ditches and canals under its control to the full capacity of the ditches and canals in times of high water and when the water can be beneficially applied to the lands thereunder and does not interfere with the rights of other appropriators.
Source: SDC 1939, § 61.0927; SDCL § 46-13-23; SL 2011, ch 165, § 387.
46A-5-24. Measuring devices, placement--System for interchange of water--Duties of board of directors.
Upon motion of the board of directors or upon the filing of a petition in the office of the board, signed by a majority of the electors in the district, requesting that regulations be adopted by the board permitting and providing for any of the following specific orders or changes in the method of operating its canal, the board shall immediately provide for the adoption and enforcement of the regulations. The regulations shall require:
(1) That a measuring device be placed in or near the headgate or any main diverting gate of the main canal, in order that a continuous record shall be kept by such district of the amount of water received in the canal for the use of the lands in such district;
(2) That measuring devices be placed in or near the headgate of all main laterals and distributing laterals within the district from and by which water is diverted to tracts or units of twenty acres or more, for the purpose of determining at all times the amount of water going to or being received upon any such tract of land, and requiring the superintendent of the canal to keep a separate and correct record of the amount of water delivered through each of such headgates at all times, and file the record in the office of the board of directors for public inspection; and
(3) That a system be provided for the interchange of water from one tract of land to another at the option of the owners or lessees of any lands within such district at any time, and that regulations made by the board of directors for delivering water in alternate sections of a canal or ditch do not interfere with this right.
Source: SDC 1939, § 61.0927; SDCL, § 46-13-24; SL 1993, ch 256, § 75.
46A-5-25. Apportionment of water by board.
If the water supply is not sufficient to supply continuously the lands susceptible of irrigation from the water supply, the board of directors shall apportion, in a just and equitable proportion, a certain amount of the water upon certain or alternate days to different localities, as the board deems best for the interests of all concerned and with due regard to the legal and equitable rights of all.
Source: SDC 1939, § 61.0926; SDCL § 46-13-25; SL 2011, ch 165, § 388.
46A-5-26. Liability for negligence in delivering or failure to deliver water--Notice to district chair--Time for service of notice and action.
Every irrigation district within this state is liable in damages for negligence in delivering or failure to deliver water to the users from its canal to the same extent as private persons and corporations if the person suffering damage, within thirty days after such negligence or failure, serves a notice in writing on the chair of the board of directors of the district, setting forth the acts or omissions on the part of the district which it is claimed constitute such negligence or failure, and that the person expects to hold the district liable for whatever damages may result. Such action may be brought not later than one year from the time the cause of action accrues.
Source: SDC 1939, § 61.0853; SDCL § 46-13-26; SL 2011, ch 165, § 389.
46A-5-27. Diversion of water from channel unauthorized without payment of just compensation.
Nothing contained in chapters 46A-4 to 46A-7, inclusive, authorizes any person to divert the waters of any river, creek, stream, canal, or ditch from its channel, so that the vested right of any person having any interest in the river, creek, stream, canal, or ditch, or the waters of the river, creek, stream, canal, or ditch, is invaded or interfered with, unless previous compensation has been determined and paid under the laws of this state authorizing the taking of private property for public use.
Source: SDC 1939, § 61.0928; SDCL § 46-13-27; SL 2011, ch 165, § 390.
46A-5-28. Appropriation from district general fund for advertising.
The board of directors of any irrigation district may appropriate money from its general fund for the purpose of advertising the district's possibilities and advantages to the world as a home and as a location for agriculture, factories, and other legitimate enterprises. The appropriation may not exceed the sum of two and one-half cents for each irrigable acre within the irrigation district.
Source: SDC 1939, § 61.0854; SDCL § 46-13-28; SL 2011, ch 165, § 391.
46A-5-29. General fund of district--Appropriation by board of directors for support of county fair, maximum amount.
The board of directors of any irrigation district may, in its discretion, appropriate from its general fund not to exceed one hundred dollars in any one year for the support of one county fair located within the county of said district or within the county where the major portion of such district is located.
Source: SDC 1939, § 61.0855; SDCL, § 46-13-29.
46A-5-31. Contract to supply water to users for nonirrigation purposes--Authority of district to enter.
An irrigation district may enter into a contract to supply water to users for purposes other than irrigation if the contract does not compromise the ability of the electors to obtain the waters to which they are entitled. A contract executed pursuant to this section constitutes the entire obligation of any such user to the irrigation district.
Source: SL 1984, ch 294, § 36; SL 1995, ch 253, § 5.
CHAPTER 46A-6
IRRIGATION DISTRICT CONTRACTS AND FINANCING
46A-6-1 Unauthorized debts and liabilities prohibited.
46A-6-2 Contracts for supply of water to irrigate lands--Source of supply.
46A-6-3 Payment within one year of purchase price of water supply--Tax levy.
46A-6-4 Contract to supply water to irrigate lands--Payments extending more than one year--Submission to voters for approval or disapproval, general or special election, notice, conduct of election--Approval of contract by voters--Annual tax levy to pay...
46A-6-4.1 Eligibility to vote on water supply contract.
46A-6-5 Drainage of land by district--Special assessments and funds--Surveys--Eminent domain--Contract with United States.
46A-6-6 Contract with United States for drainage of lands in district--Contract by board of directors for drainage of contiguous outside lands, assumption of cost and repayment to United States.
46A-6-7 Submission of federal contract to voters at general or special election--Notice--Approval by voters.
46A-6-8 Supplemental or amendatory contracts with United States--Amount of principal indebtedness not increased.
46A-6-9 Election and judicial confirmation not required for supplementary or amendatory contracts--Resolution of board.
46A-6-10 Prior supplemental contracts with United States validated.
46A-6-11 46A-6-11 to 46A-6-14. Repealed by SL 1984, ch 43, § 131
46A-6-15 Covenants and agreements to protect security and payment of bonds.
46A-6-16 Bonds of district to be delivered to United States under reclamation contract--Form--Terms--Denominations.
46A-6-17 Issuance of bond not necessary--Cost and expenses of property and works covered by contract between district and United States.
46A-6-18 46A-6-18. Repealed by SL 1984, ch 43, § 131
46A-6-19 Payment of bonds and interest--Annual assessment upon real property of district.
46A-6-20 46A-6-20, 46A-6-21. Repealed by SL 1984, ch 43, § 131
46A-6-22 Debt service fund--Investment in federal or state bonds or certificates of deposit, deposits in banks within state.
46A-6-23 Interest on due and unpaid interest coupons of bonds--Election to authorize--Form of ballots.
46A-6-24 Interest on unpaid coupons--Majority vote of electors--Adoption declared by board--Levy for capital projects fund--Stamping of coupons by county treasurer.
46A-6-25 46A-6-25 to 46A-6-28. Repealed by SL 1984, ch 43, § 131
46A-6-29 Contract with United States guaranteeing bonds of district or extending financial credit.
46A-6-30 Compliance with federal and state laws--Rights of district to contract.
46A-6-31 Special court proceeding to confirm contracts or assessments-- Procedure--Partial approval--Curing of defects.
46A-6-32 Confirmation of issue and sale of bonds by board of directors--Judicial examination in special proceeding--Approval or disapproval by circuit court.
46A-6-33 Petition of board of directors for confirmation of issue and sale of bonds--Filed in circuit court--Contents.
46A-6-34 Hearing of petition of board of directors for confirmation of issue and sale of bonds--Notice of filing, publication--Time and place.
46A-6-35 Pleading to petition of board of directors for confirmation of issue and sale of bonds--Law governing.
46A-6-36 Contract with United States amendatory of individual water right contracts--Exception.
46A-6-37 Court hearing on organization of district or issuance of bonds--Determination of legality--Disregard of certain irregularities--Partial approval--Costs.
46A-6-38 Statement by board--Preparation, contents, and certification--Statement and bonds presented to department--Recording of statement--Registration of bonds.
46A-6-39 Borrowing to make payments on federal contracts.
46A-6-40 Borrowing for unforeseen or unusual conditions in operation and maintenance.
46A-6-41 Maximum amount of loans--Payment.
46A-6-41.1 Borrowing funds from conservancy district--Pledge of district credit.
46A-6-42 Funds of district--Deposit in bank, designation by board of directors, release of district treasurer from personal liability.
46A-6-43 Withdrawal from construction fund and deposit in county treasury--Disbursement by county treasurer--Monthly report.
46A-6-44 Costs of acquisition of property and construction of works and improvements--Payment out of construction fund or in district bonds.
46A-6-45 Additional bonds of district--Priority.
46A-6-46 Claims against district--Verification required--Oaths administered by district secretary.
46A-6-47 Claims against district--Allowance--Warrants for payment.
46A-6-48 Insufficient funds for payment of warrants--Endorsement of district treasurer--Interest.
46A-6-49 Register of warrants by district treasurer--Payment of warrants in order of presentation.
46A-6-50 District treasurer--Monthly report.
46A-6-51 Transfer of assets and liabilities of nonprofit entity to district--Approval by governing board and electors.
46A-6-52 Repealed
46A-6-1. Unauthorized debts and liabilities prohibited.
Neither the board of directors, nor any other officers of an irrigation district, may incur any debt or liability, either by issuing bonds or otherwise, in excess of the express provisions of chapters 46A-4 to 46A-7, inclusive, and any debt or liability incurred in excess of such express provisions is void.
Source: SDC 1939, § 61.0817; SDCL § 46-14-1; SL 2011, ch 165, § 392.
46A-6-2. Contracts for supply of water to irrigate lands--Source of supply.
The board of directors of any irrigation district may enter into contracts for a supply of water for the irrigation of the lands within the irrigation district with any person or with the United States. The source of supply of the water may be either within or without the boundaries of this state, and the water supply may be either the entire supply of water for the district or to supplement an appropriation already made by the district.
Source: SDC 1939, § 61.0929; SDCL § 46-14-2; SL 2011, ch 165, § 393.
46A-6-3. Payment within one year of purchase price of water supply--Tax levy.
If the contract provided in § 46A-6-2 provides for payment of the entire purchase price of the water supply within one year after the making of the contract, the board of directors of the district shall, at the time of entering into the contract, pass a resolution that a levy shall be made sufficient to raise a sum necessary to pay the purchase price. The board of directors shall thereafter, and at the same time the levy for other taxes of the district is made, levy a tax against the taxable property of the district sufficient to raise and pay the sum.
Source: SDC 1939, § 61.0930; SDCL § 46-14-3; SL 2011, ch 165, § 394.
46A-6-4. Contract to supply water to irrigate lands--Payments extending more than one year--Submission to voters for approval or disapproval, general or special election, notice, conduct of election--Approval of contract by voters--Annual tax levy to pay amount due.
If such contract provides for payments to be made extending over a period of more than one year from the date of making such contract, the board of directors shall submit such contract to the legal voters of such district at any general election, or at a special election called therefor, for the approval or disapproval of such contract. If a special election is called for such purpose the notice of election, conduct of such election, and canvass of the votes shall so far as practicable be the same as elections held for the purpose of voting upon the issuance of bonds. The ballots at such elections shall have printed thereon "For approval of contract for water supply" and "Against approval of contract for water supply." Notice of such election need not give the entire contract, but shall be sufficient if it shall state in a general way the substance thereof. If a majority of the voters voting on such proposition, vote for approval of such contract, the board of directors shall enter into such contract and shall thereafter, at the time the other taxes of the district are levied, levy a tax on the taxable property of the district sufficient to pay the amount due and to become due on such contract before the next annual levy in such district.
Source: SDC 1939, § 61.0931; SDCL, § 46-14-4.
46A-6-4.1. Eligibility to vote on water supply contract.
Only those electors whose land may be assessed to finance the water supply contract are eligible to vote in an election held pursuant to the provisions of § 46A-6-4.
Source: SL 1984, ch 295, § 2.
46A-6-5. Drainage of land by district--Special assessments and funds--Surveys--Eminent domain--Contract with United States.
Any organized irrigation district may whenever it appears necessary, proper, or beneficial to drain any of the land within the district, either for the benefit of the land actually requiring drainage or for the protection of other lands within the district, whether the irrigation works have been actually acquired or constructed or not, cause drainage canals and works to be constructed. For these purposes, the district may levy special assessments or otherwise provide funds necessary to properly drain the lands, enter upon lands for the purpose of making surveys, exercise the right of eminent domain, and contract for the construction of necessary ditches. The district may extend the drainage ditches outside of the limits of the district for the purpose of conducting the drainage water to other lands upon which the water may be lawfully used or to return the water to some natural watercourse. The powers granted in this section include the power to enter into a contract with the United States of America to carry out and effectuate all proper drainage of the district or any part of the district; and any such contract shall be treated, to all intents and purposes, as if made under the provisions of this chapter.
Source: SDC 1939, § 61.0817; SDCL § 46-14-5; SL 2011, ch 165, § 395.
46A-6-6. Contract with United States for drainage of lands in district--Contract by board of directors for drainage of contiguous outside lands, assumption of cost and repayment to United States.
Whenever any irrigation district shall have contracted with the United States to effectuate the drainage of the lands within the district, or any part thereof, the board of directors, if it deems it for the best interests of the irrigation district, may enter into a contract to provide for the drainage of contiguous outside lands, the cost of such drainage work to be assumed and repaid to the United States by the irrigation district as a part of the irrigation district's obligation for the drainage of district lands.
Source: SDC 1939, § 61.0924; SDCL, § 46-14-6.
46A-6-7. Submission of federal contract to voters at general or special election--Notice--Approval by voters.
The board of directors shall submit the contract referred to in § 46A-6-6 to the electors of the irrigation district at a general election, or at a special election called for that purpose. If a special election is called for that purpose, notice of election shall be given, the election shall be conducted, and the votes shall be canvassed, so far as practicable, in the manner provided for elections held for the purpose of voting upon the issuance of bonds. The ballots at the election shall have printed on the ballots "For the approval of contract for drainage of contiguous lands outside the boundaries of the irrigation district," and "Against approval of contract for drainage of contiguous lands outside the boundaries of the irrigation district." The notice of election need not give the entire contract. It is sufficient if the notice states in a general way the substance of the contract. If a majority of the voters voting on the proposition vote for approval of the contract, the board of directors may enter into the contract.
Source: SDC 1939, § 61.0925; SDCL § 46-14-7; SL 2011, ch 165, § 396.
46A-6-8. Supplemental or amendatory contracts with United States--Amount of principal indebtedness not increased.
The board of directors of any irrigation district established and organized under the laws of South Dakota, if deemed advisable and in the best interests of the district, may enter into any contract with the United States supplementing or amending any original contract with the United States, if the original contract was entered into pursuant to the provisions of chapters 46A-4 to 46A-7, inclusive, and if the supplementary or amendatory contract does not increase the amount of principal indebtedness of the district to the United States as it exists at the date of the supplementary or amendatory contract.
Source: SL 1939, ch 293, § 1; SDC Supp 1960, § 61.0847-1; SDCL § 46-14-8; SL 2011, ch 165, § 397.
46A-6-9. Election and judicial confirmation not required for supplementary or amendatory contracts--Resolution of board.
If any supplementary or amendatory contract is made with the United States under § 46A-6-8, no election is necessary, nor is the board of directors of the irrigation district required to proceed for a judicial confirmation of the making of the contract and the terms of the contract. It is sufficient in the case of a contract made with the United States under § 46A-6-8 for the board of directors of any irrigation district to authorize the execution of the contract by its president and secretary by appropriate resolution adopted at any regular or special meeting of the board of directors.
Source: SL 1939, ch 293, § 2; SDC Supp 1960, § 61.0847-1; SDCL § 46-14-9; SL 2011, ch 165, § 398.
46A-6-10. Prior supplemental contracts with United States validated.
Any contract between the United States and any irrigation district made before February 9, 1939, as a contract supplementing or amending any original contract between the United States and any irrigation district, and which original contract was entered into pursuant to the laws of the State of South Dakota governing the making of a contract between the United States and an irrigation district, and which supplementary or amendatory contract was not authorized at an election of the district electors and thereafter judicially confirmed by a court of competent jurisdiction, is hereby ratified, approved, and confirmed as a valid and subsisting contract of such irrigation district.
Source: SL 1939, ch 293, § 3; SDC Supp 1960, § 61.0847-1; SDCL, § 46-14-10.
46A-6-15. Covenants and agreements to protect security and payment of bonds.
Any resolution authorizing the issuance of bonds of the irrigation district may contain covenants and agreements on the part of the district to protect and safeguard the security and payment of the bonds. The covenants and agreements shall be a part of the contract with the holders of the bonds, including agreements for setting aside reserves or debt service funds and the regulation, investment, and disposition of the reserves or debt service funds; agreements on the use of trustees to further protect the interest of bondholders; and any other agreements, of a like or different nature, that in any way affect the security or protection of bonds of the district.
Source: SL 1976, ch 277, § 26; SDCL Supp, § 46-14-14.1; SL 2011, ch 165, § 399.
46A-6-16. Bonds of district to be delivered to United States under reclamation contract--Form--Terms--Denominations.
Bonds authorized and issued as provided in § 46A-5-4 for the purpose of being delivered to the United States and held or sold by it, shall be in the form, terms, and denominations as may be fixed by the secretary of the interior in carrying out the provisions of the act of Congress of June 17, 1902, (32 Stat. 388), as amended to January 1, 2011, and any acts that are supplementary to the act.
Source: SDC 1939, § 61.0901; SDCL § 46-14-15; SL 1984, ch 43, § 121; SL 2011, ch 165, § 400.
46A-6-17. Issuance of bond not necessary--Cost and expenses of property and works covered by contract between district and United States.
Bonds need not be issued where the cost and expense of purchasing and acquiring property and constructing the works and improvements herein provided for are covered by a contract between the district and the United States.
Source: SDC 1939, § 61.0921; SDCL, § 46-14-16.
46A-6-19. Payment of bonds and interest--Annual assessment upon real property of district.
The bonds, and the interest on the bonds, shall be paid by revenue derived from an annual assessment upon the real property of the district. All real property of the district is liable to be assessed for such payments as provided in chapter 46A-7, and for all payments due or to become due to the United States under any contract between the district and the United States for which bonds of the district have not been deposited with the United States.
Source: SDC 1939, § 61.0903; SDCL § 46-14-18; SL 2011, ch 165, § 401.
46A-6-22. Debt service fund--Investment in federal or state bonds or certificates of deposit, deposits in banks within state.
Every district maintaining a debt service fund for the payment of outstanding bonds shall keep the accumulations in the debt service fund deposited with the lawful depositories or invested in registered warrants or bonds of any municipal or public corporation of the state, or bonds, notes, or other obligations issued by any federal land bank, federal intermediate credit bank, bank for cooperatives, or any or all of the federal farm credit banks, or obligations of the United States, or bonds or securities of any kind issued by the state, and the interest accruing on the investment shall be credited to the debt service fund. Moneys in any debt service fund shall be invested only in the above-named securities as will become due and payable on or before the date when the bonds for the payment of which the debt service fund was created become due and payable, except bonds of the United States or of the state.
In carrying out the provisions of this section, all transactions shall be by resolution of the board of directors.
Source: SDC 1939, § 61.0918; SDCL, § 46-14-21; SL 1984, ch 43, § 122.
46A-6-23. Interest on due and unpaid interest coupons of bonds--Election to authorize--Form of ballots.
A district by a majority vote may provide and authorize the payment of interest on any or all due and unpaid interest coupons attached to valid and outstanding bonds of the district heretofore or hereafter issued and sold, from the date of registration of the interest coupons for payment or, if previously registered, from the date of election to pay interest, until paid. The question may be submitted at any general or special election of the district by ballot, which shall generally describe the bonds to which the coupons are attached by number, series, and date of issue. The ballots shall be in substantially the following form:
For the payment of interest on coupons attached to bonds numbered ____, series ____, dated ____ at ____ percent per annum--Yes (or No).
The election shall be governed by the law relating to bond elections in these districts.
Source: SDC 1939, § 61.0901; SDCL, § 46-14-22; SL 1983, ch 28, § 55.
46A-6-24. Interest on unpaid coupons--Majority vote of electors--Adoption declared by board--Levy for capital projects fund--Stamping of coupons by county treasurer.
If a majority of the ballots cast on such proposition shall be in favor thereof, the board of directors shall declare the same adopted and the funds to pay such interest shall be estimated and included in the levy for the capital projects fund of such irrigation district as provided by law. Thereafter, upon the presentation of any bond with coupons attached, or any detached coupons of such bonds upon which interest is payable under the provisions of this chapter, the treasurer shall stamp or write on such coupons: Bears interest at ____ percent per annum from the date of registration for payment (or) from date of election to pay interest (if previously registered for payment).
____________________________________________________________________
County Treasurer.
Payment of such coupon shall include the payment of the interest accruing under this chapter.
Source: SDC 1939, § 61.0901; SDCL, § 46-14-23.
46A-6-29. Contract with United States guaranteeing bonds of district or extending financial credit.
Any irrigation district organized under the laws of this state for irrigation or drainage purposes may enter into contracts with the United States whereby the bonds of the district are guaranteed by the United States, or financial credit is extended by the United States to the district, for the sale, purchase or use of any canal, ditch, reservoir, right-of-way, irrigation or drainage system, or other property owned or to be acquired for the use of the district.
Source: SDC 1939, § 61.0846; SDCL § 46-14-28; SL 2011, ch 165, § 402.
46A-6-30. Compliance with federal and state laws--Rights of district to contract.
Any irrigation district may accept any of the provisions of any act of Congress of the United States applicable to the district and may obligate itself to comply with laws, rules, and regulations promulgated by any department of the United States pursuant to the act. Irrigation districts contracting with the United States under the provisions of this chapter shall be governed in all matters by the laws of the state relating to irrigation or drainage districts, as the case may be, except in such things as may be otherwise provided for such districts. This section does not limit the rights of any irrigation district under existing laws to purchase a water supply, or otherwise contract, and is cumulative to such existing laws.
Source: SDC 1939, § 61.0847; SDCL § 46-14-29; SL 2011, ch 165, § 403.
46A-6-31. Special court proceeding to confirm contracts or assessments-- Procedure--Partial approval--Curing of defects.
The board of directors may, in connection with making any contract with the United States or others, levying any assessment, or taking any particular steps or action, commence a special proceeding in the circuit court, in and by which the proceedings of the district leading up to or including the making of any such contract, and the validity of any of the terms of the contract, the levying of any such assessment, or the taking of any particular steps or action, shall be judicially examined, approved, and confirmed or disapproved and disaffirmed. The practice and procedure for the confirmation of any step or action provided for shall conform as nearly as possible with the practice and procedure now provided for the confirmation before the issuance and sale of bonds of irrigation districts. The court may approve and confirm the proceedings in part and may disapprove and declare illegal or invalid other and subsequent parts of the proceedings. Insofar as possible, the court shall remedy and cure all defects in the proceedings.
Source: SDC 1939, § 61.0812; SDCL § 46-14-30; SL 2011, ch 165, § 404.
46A-6-32. Confirmation of issue and sale of bonds by board of directors--Judicial examination in special proceeding--Approval or disapproval by circuit court.
The board of directors of any irrigation district organized under the provisions of chapter 46A-4 shall, before selling any bonds of such irrigation district, and in its discretion before making any contract, levying any assessment, or taking any special action, commence a special proceeding, in and by which the proceedings of such board and of such district providing for and authorizing the issue and sale of the bonds of such district, the making of any contract, levying of any assessment, or taking any special action, shall be judicially examined, approved, and confirmed, or disapproved and disaffirmed.
Source: SDC 1939, § 61.0841; SDCL, § 46-14-31.
46A-6-33. Petition of board of directors for confirmation of issue and sale of bonds--Filed in circuit court--Contents.
The board of directors of the irrigation district shall file in the circuit court for the county in which the lands of the district, or some portion thereof, are situated, a petition praying, in effect, that its proceedings may be examined, approved, and confirmed by the court. The petition shall state the facts showing the proceedings had for the issue and sale of the bonds, the making of any contract, the levying of any assessment or taking any special action, and shall state generally that the irrigation district was duly organized and that the first board of directors was duly elected; but the petition need not state the facts showing such organization of the district, or the election of the first board of directors.
Source: SDC 1939, § 61.0842; SDCL, § 46-14-32.
46A-6-34. Hearing of petition of board of directors for confirmation of issue and sale of bonds--Notice of filing, publication--Time and place.
The court shall fix the time for the hearing of the petition and shall order the clerk of courts to give and publish a notice of the filing of the petition. The notice shall be given and published in the same manner and for the same length of time that the notice of a special election to determine whether the bonds of the district shall be issued is required to be given and published. The notice shall state the time and place fixed for the hearing of the petition and prayer of the petition, and that any person interested in the organization of the district, or in the proceedings for the issue or sale of the bonds, may, on or before the day fixed for the hearing of the petition, answer or otherwise plead to the petition. The petition may be referred to and described in the notice as the petition of the district, giving its name, praying that the proceedings set forth therein may be examined, approved, and confirmed by the court.
Source: SDC 1939, § 61.0843; SDCL, § 46-14-33.
46A-6-35. Pleading to petition of board of directors for confirmation of issue and sale of bonds--Law governing.
Any person interested in the district, or in the issue or sale of the bonds, may answer or otherwise plead to the petition. The provisions of law respecting such pleading to a complaint shall be applicable to a pleading to the petition. The person so pleading to the petition shall be the defendant to the special proceeding and the district shall be the plaintiff. Every material statement of the petition not especially controverted by the answer must for the purpose of such special proceeding be taken as true; and each person failing to answer the petition shall be deemed to admit as true all the material statements of the petition; the rules of pleading and practice provided by law, which are not inconsistent with the provisions of this chapter, are applicable to the special proceeding provided for herein.
Source: SDC 1939, § 61.0844; SDCL, § 46-14-34.
46A-6-36. Contract with United States amendatory of individual water right contracts--Exception.
If an irrigation district organized under the laws of this state enters into a contract with the United States for the payment of charges due the United States in connection with a federal reclamation project, and the district contract is inconsistent in any respect with the individual water right contracts between the United States and the landowners of the district, the district contract will be taken as amendatory of individual water right contracts affecting district land, the owners, mortgagees, or lienors of which fail to answer the petition. However, the contract entered into with the United States, providing for a different deficiency assessment, shall be approved by a majority vote of the owners of land at an election properly called for such purpose.
Source: SDC 1939, § 61.0844; SDCL § 46-14-35; SL 2011, ch 165, § 405.
46A-6-37. Court hearing on organization of district or issuance of bonds--Determination of legality--Disregard of certain irregularities--Partial approval--Costs.
Upon the hearing of the special proceeding the court may examine and determine the legality and validity of, and approve and confirm or disapprove and disaffirm, each of the proceedings for the organization of the district, including the petition for the organization of the district and all other steps and matters that may affect the legality or validity of the proceedings and objects set forth in the petition, including any proceedings connected with the voting and issuing of bonds by the district. The court in inquiring into the regularity, legality, or correctness of the proceedings shall disregard any error, irregularity, or omission that does not affect the substantial rights of the parties. The court may approve and confirm the proceedings in part and disapprove and declare illegal or invalid other and subsequent parts of the proceedings, and insofar as possible the court shall remedy and cure all defects in the proceedings. The court shall find and determine whether the notice of the filing of the petition has been duly given and published for the time and in the manner prescribed by this chapter. The costs of the special proceeding may be allowed and apportioned between the parties in the discretion of the court.
Source: SDC 1939, § 61.0845; SDCL § 46-14-36; SL 2011, ch 165, § 406.
46A-6-38. Statement by board--Preparation, contents, and certification--Statement and bonds presented to department--Recording of statement--Registration of bonds.
If the court determines the proceedings for the organization of the district to be legal and valid and the proceedings for the voting and issuing of the bonds legal and valid, the board of directors shall then prepare a written statement, beginning with the filing of the petition for the organization of the district and including all subsequent proceedings for the organization of the district, the voting and issuing of such bonds or other objects of such petition, and ending with the decree of the court finding the proceedings for the organization of the district and subsequent proceedings legal and valid. If the proceedings are for the confirmation of a bond issue, the board shall present the written statement and the bonds to the Department of Agriculture and Natural Resources and the written statement shall be certified under oath by the board of directors of the district. The Department of Agriculture and Natural Resources shall record the statement and register the bonds in its office, and no such bonds may be issued or be valid unless they are registered and have endorsed on the bonds a certificate of the Department of Agriculture and Natural Resources showing that the bonds are issued pursuant to law, the date filed in the office of the department being the basis of the certificate.
Source: SDC 1939, § 61.0845; SDCL § 46-14-37; SL 1977, ch 366, § 7; SL 2011, ch 165, § 407; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-6-39. Borrowing to make payments on federal contracts.
The board of directors of any irrigation district in this state sustaining contractual relations with the United States may borrow funds for the purpose of making any necessary payments on the contracts, and may pledge the credit of the district for the payment of the contracts.
Source: SDC 1939, § 61.0814; SDCL § 46-14-38; SL 2011, ch 165, § 408.
46A-6-40. Borrowing for unforeseen or unusual conditions in operation and maintenance.
The board of directors may borrow funds to meet the necessities of any unforeseen or unusual conditions arising in the operation and maintenance of the irrigation system of the district and may pledge the credit of the district for the payment of the debt.
Source: SDC 1939, § 61.0814; SDCL § 46-14-39; SL 2011, ch 165, § 409.
46A-6-41. Maximum amount of loans--Payment.
The total sum borrowed by any district under the provisions of §§ 46A-6-39 and 46A-6-40 may at no time exceed two-thirds of the amount of the general fund levy of the district for the preceding year. If the levy for the then current year is insufficient to provide for the payment of the sum borrowed, then the payment shall be provided for in the levy for the next ensuing year.
Source: SDC 1939, § 61.0814; SDCL § 46-14-40; SL 2011, ch 165, § 410.
46A-6-41.1. Borrowing funds from conservancy district--Pledge of district credit.
The provisions of § 46A-6-41 notwithstanding, the board of directors of any irrigation district may borrow funds from the conservancy district as set forth in § 46A-1-64 if the funds are used for study, planning, design, or engineering purposes. The board may pledge the credit of the district to repay the funds.
Source: SL 1984, ch 294, § 37.
46A-6-42. Funds of district--Deposit in bank, designation by board of directors, release of district treasurer from personal liability.
All funds of every kind and character, including moneys, credits, and other assets, belonging to any irrigation district, shall be by the treasurer deposited in a bank or banks within the State of South Dakota, which bank or banks shall be designated by the board of directors of such district. If no depository is designated, then the treasurer shall designate a bank or banks as a depository for such public funds. The deposit of such public funds as herein designated, shall relieve the treasurer of such irrigation district from personal liability for loss of such funds deposited through the insolvency or failure of such depository while deposited therein.
Source: SDC 1939, § 61.0857; SDCL, § 46-14-41.
46A-6-43. Withdrawal from construction fund and deposit in county treasury--Disbursement by county treasurer--Monthly report.
The board of directors may draw from time to time from the construction fund and deposit, in the county treasury of the county where the office of the board is situated, any sum in excess of twenty-five thousand dollars. The county treasurer shall receive and receipt for the deposit and place the deposit to the credit of the district. The county treasurer is responsible on the treasurer's official bond for the safekeeping and disbursement of the deposit as provided in this chapter. The county treasurer shall pay out the deposit, or any part of the deposit, only to the treasurer of the district and upon the order of the board, signed by the president and attested by the secretary. The county treasurer shall report in writing on the second Monday in each month the amount of money in the county treasury credited to the district, the amount of receipts for the month preceding, and the amount of money paid out. The report shall be verified and filed with the secretary of the board.
Source: SDC 1939, § 61.0920; SDCL § 46-14-42; SL 2011, ch 165, § 411.
46A-6-44. Costs of acquisition of property and construction of works and improvements--Payment out of construction fund or in district bonds.
The cost and expense of purchasing and acquiring property, and constructing the works and improvements provided for in chapter 46A-5 and this chapter, shall be wholly paid out of the construction fund or in the bonds of such district at their par value.
Source: SDC 1939, § 61.0921; SDCL, § 46-14-43; SL 1976, ch 277, § 14.
46A-6-45. Additional bonds of district--Priority.
If the bonds or the money raised by the sale thereof is insufficient for the purposes for which the bonds were issued, additional bonds may be issued. The lien for taxes for the payment of the interest and principal of the additional bonds may be on a parity with, or subsequent to, the lien of any prior bond issue.
Source: SDC 1939, § 61.0921; SDCL, § 46-14-44; SL 1976, ch 277, § 15; SL 1984, ch 43, § 123.
46A-6-46. Claims against district--Verification required--Oaths administered by district secretary.
All claims against the district shall be verified the same as required in the case of claims filed against counties in this state, and the secretary of the district is authorized to administer oaths to the parties verifying such claims.
Source: SDC 1939, § 61.0920; SDCL, § 46-14-45.
46A-6-47. Claims against district--Allowance--Warrants for payment.
No claim may be paid by the district treasurer until the claim has been allowed by the board of directors, and only upon warrants signed by the president and countersigned by the secretary. All warrants shall be drawn and payable to the claimant or bearer, the same as county warrants.
Source: SDC 1939, § 61.0920; SDCL § 46-14-46; SL 2011, ch 165, § 412.
46A-6-48. Insufficient funds for payment of warrants--Endorsement of district treasurer--Interest.
If the district treasurer does not have sufficient money on hand to pay any warrant when it is presented for payment, the district treasurer shall endorse on the warrant "Not paid for want of funds," the date, and the treasurer's signature. From the time of presentation until paid, the warrant shall draw interest at a rate to be negotiated by the parties.
Source: SDC 1939, § 61.0920; SDCL § 46-14-47; SL 1983, ch 28, § 56; SL 2011, ch 165, § 413.
46A-6-49. Register of warrants by district treasurer--Payment of warrants in order of presentation.
The district treasurer shall keep a register that lists each warrant presented for payment, the date and amount of the warrant, to whom payable, the date of the presentation of payment, the date of payment, and the amount paid in redemption of the warrant. All warrants shall be paid in the order of their presentation for payment to the district treasurer.
Source: SDC 1939, § 61.0920; SDCL § 46-14-48; SL 2011, ch 165, § 414.
46A-6-50. District treasurer--Monthly report.
The district treasurer shall also report to the board of directors in writing, on the first Monday of each month, the amount of money in the district treasury, the amount of receipts for the month preceding, and the amount of items and expenditures, and such report shall be verified and filed with the secretary of the board.
Source: SDC 1939, § 61.0920; SDCL, § 46-14-49.
46A-6-51. Transfer of assets and liabilities of nonprofit entity to district--Approval by governing board and electors.
Any nonprofit corporation, cooperative, or association located within an irrigation district may transfer assets, liabilities, contracts, or other obligations to the irrigation district. To be valid, such transfer shall be approved by formal resolution of the governing body of the transferring entity and also shall be approved in an election thereon by an affirmative majority vote of the district electors voting on the question.
Source: SL 1984, ch 295, § 1.
46A-7-1
Tolls, charges, and assessments--Expenses covered--Levy of assessments.
46A-7-2
Expenses for completion of irrigation system--Issuance of additional bonds or levy
of assessment.
46A-7-3
Special assessment--Submission of question of levy--Notice of election--Authorization by majority of votes--Levy of assessment--Entry upon assessment roll
and tax list--Collection.
46A-7-3.1
Eligibility to vote on special assessment.
46A-7-4
Apportionment of benefits accruing to land by irrigation--Basis for annual
assessments.
46A-7-5
Apportionment of benefits to land by irrigation works--Assessment made in lieu of
bonds or other authorized obligations--Assessment not invalid because in name of
wrong person.
46A-7-6
List of apportionment or distribution--Contents--Map of each subdivision with rate
of apportionment--Copy filed with department.
46A-7-7
Assessments to meet obligations of contracts with United States--Apportionment of
benefits unnecessary under contract.
46A-7-8
Delivery of assessment roll to secretary--Notice of equalization meeting--Time for
meeting--Roll available for inspection.
46A-7-9
Board of equalization, board of directors constituting--Meetings, purpose--Apportionment of benefits and assessments--Duties of secretary.
46A-7-10
Acreage assessment to cover bond and contract payments--Special fund.
46A-7-11
Assessment for operation, salaries and expenses.
46A-7-12
Assessments--Rate of levy, computation.
46A-7-13
Contract with United States providing different deficiency assessment.
46A-7-14
Neglect or refusal of board to make assessment--Adoption of assessment for
preceding year.
46A-7-15
Modification of contract with United States to eliminate charges or change time of
payment--Cancellation of levy or assessment.
46A-7-16
Assessments--Computation and entry by secretary--Certification--Tax list.
46A-7-17
Assessments levied for bond and United States contract fund--Collection by county
treasurer.
46A-7-18
Capital projects fund tax--Interest coupons received in payment.
46A-7-19
Assessments levied for general fund--Due date--Warrants received in payment.
46A-7-20
Taxes received for capital projects and general funds--Remittance by county
treasurer.
46A-7-21
Responsibilities of county treasurer for taxes.
46A-7-22
Alternative method of collection of assessments against acreage within United States
reclamation project.
46A-7-23
Notice of decision to collect assessments against acreage in United States reclamation
project.
46A-7-24
Decision of board of directors to collect assessments against acreage within United
States reclamation project--Certificate, time for filing--Payment of assessments, time.
46A-7-25
Collection of assessments against acreage within United States reclamation project--Single assessment for operation and maintenance funds and contract funds, time for
payment.
46A-7-26
Determination of benefits--Fixing annual assessments--Completion and delivery of
assessment roll.
46A-7-27
Filing of certificate of decision to collect assessments against acreage within United
States reclamation project--Treasurer of irrigation district to act in lieu of county
auditor and treasurer.
46A-7-28
Collection of assessments against acreage within United States reclamation project--Duties of treasurer of district, certification of delinquencies.
46A-7-29
Reversion to prior method of collection--Filing of certificate of change--Collection
through office of county treasurer.
46A-7-30
Assessments--Payment under protest, disposition of money.
46A-7-31
Refund of taxes or assessments--Filing of tax receipt showing payment under protest--Affidavit stating grounds for refund.
46A-7-32
Relevy of invalid, void or defective special tax or assessment--Assessment not
invalidated by erroneous extension--Correction.
46A-7-33
Assessment as lien against property assessed--Interest--Collection--Sale of land.
46A-7-34
Bond series lien preferences--Federal contract payments lien preferences.
46A-7-35
Application of funds from assessment and levy--Priority in distribution.
46A-7-36
Delinquent assessments--Compromise, abatement, or reallocation.
46A-7-37
Delinquent assessments--Sales of land, bidding in by board of directors, striking off
land to district, certificate of tax sale.
46A-7-38
Special revenue fund for purchase of tax certificates and titles--Purpose--Resolution--Payment of taxes, assessments, interest, and penalties.
46A-7-39
Taxes paid by district--Distribution by county treasurer--Redemption or sale of
property--Deposit of proceeds.
46A-7-40
Expenditure from special revenue fund--Transfer of balance in inactive fund to debt
service fund.
46A-7-41
Tax sale certificate issued to county--Purchase by district--Purchase price, payment
by board of directors.
46A-7-42
Land sold at tax sale to district--Tax deed, issuance to holder of certificate of tax sale
in the absence of redemption.
46A-7-43
Tax deed issued to district--Sale of land--Price.
46A-7-44
Land not subject to sale for delinquent taxes before delivery of water.
46A-7-45
Warrants of districts--Limitation on amount issued--Additional levy.
46A-7-46
Claims against fund fully paid--Transfer of unused balance.
46A-7-1. Tolls, charges, and assessments--Expenses covered--Levy of assessments.
For the purpose of defraying the expenses of the organization of an irrigation district, and for the purpose of defraying all expenses incurred in formulating a general plan for the proposed operation of an irrigation district including surveys, maps, estimates, examinations, and plans made in order to demonstrate the practicability of such general plan, all as authorized by §§ 46A-5-2 and 46A-5-3, and for the purpose of defraying all expenses related to the care, operation, management, repair, and improvement of such portions of its canal and works as are completed and in use, including salaries of officers and employees, the board of directors of the district may either fix rates of tolls and charges and collect the tolls and charges from all persons using such works for irrigation or other purposes, or may provide for the payment of such expenditures by assessments, or by both tolls and assessments. If by assessment, the levy shall be made upon the completion and equalization of the assessment roll in accordance with the benefit received; and the board has the same powers and functions for the purposes of the levy as are now possessed by boards of county commissioners in this state. The assessment shall be collected as provided in this chapter.
Source: SDC 1939, § 61.0921; SDCL § 46-15-1; SL 1976, ch 277, § 16; SL 2011, ch 165, § 415.
46A-7-2. Expenses for completion of irrigation system--Issuance of additional bonds or levy of assessment.
In lieu of the issuance of additional bonds as authorized by § 46A-6-45, the board of directors may provide for the completion of the irrigation system of the district by the levy of an assessment therefor, in the same manner in which the levy of an assessment is made for the other purposes provided for in this chapter.
Source: SDC 1939, § 61.0921; SDCL, § 46-15-2.
46A-7-3. Special assessment--Submission of question of levy--Notice of election--Authorization by majority of votes--Levy of assessment--Entry upon assessment roll and tax list--Collection.
The board of directors may at any time call a special election and submit to the qualified electors of the district the question whether or not a special assessment shall be levied for the purpose of raising money to be applied for any of the purposes provided for in chapters 46A-4 to 46A-7, inclusive. The election shall be called upon the notice prescribed, and the election shall be held and the result of the election determined and declared in all respects in conformity with the provisions of chapters 46A-4 to 46A-7, inclusive. The notice shall specify the amount of money proposed to be raised, and the purpose for which it is intended to be raised. The ballots shall contain the words "Assessment--Yes," "Assessment--No." If a majority of the votes are "Assessment--Yes," the board shall, at the time of the annual levy, levy an assessment sufficient to raise the amount voted. The assessment shall be entered upon the assessment roll and upon the tax list by the county auditor and collected at the same time and in the same manner as other assessments. All revenue laws of this state for the collection of real estate taxes and sale of land for taxes apply to the assessment provided for in this section. When collected, the assessment shall be paid by the county treasurer to the district treasurer for the purpose specified in the notice of the special election.
Source: SDC 1939, § 61.0923; SDCL § 46-15-3; SL 2011, ch 165, § 416.
46A-7-3.1. Eligibility to vote on special assessment.
Only those electors whose land may be specially assessed to raise funds are eligible to vote in an election held pursuant to the provisions of § 46A-7-3.
Source: SL 1984, ch 295, § 2.
46A-7-4. Apportionment of benefits accruing to land by irrigation--Basis for annual assessments.
The director of equalization shall, between the first Monday in May and the first Monday in July in each year, examine each tract or legal subdivision of land in an irrigation district including entered and unentered public lands of the United States, subject to the irrigation district under the act of Congress approved August 11, 1916, entitled "An Act to promote the irrigation of arid lands," as amended to January 1, 2011. The director of equalization shall determine the benefits that will accrue to each tract or subdivision on account of the construction or acquisition of the irrigation works. The amount so apportioned or distributed to each tract or subdivision as finally equalized or confirmed by the court, as the case may be, is the basis for fixing the annual assessments levied against the tracts or subdivisions in carrying out the purposes of chapters 46A-4 to 46A-7, inclusive.
Source: SDC 1939, § 61.0904; SL 1949, ch 435, § 1; SDCL § 46-15-4; SL 2011, ch 165, § 417.
46A-7-5. Apportionment of benefits to land by irrigation works--Assessment made in lieu of bonds or other authorized obligations--Assessment not invalid because in name of wrong person.
Whenever any assessment is made either in lieu of bonds, or in any annual levy for raising the interest on bonds, or any portion of the principal or the expenses of maintaining the property of the district or any special assessment voted by the electors, it shall be spread upon the lands in proportion to the benefits received, and the whole of the assessment of benefits shall equal the amount of bonds or other obligations authorized at the election last above mentioned. The assessment of any property in the name of the wrong person shall in no way invalidate the assessment thereof.
Source: SDC 1939, § 61.0904; SL 1949, ch 435, § 1; SDCL, § 46-15-5.
46A-7-6. List of apportionment or distribution--Contents--Map of each subdivision with rate of apportionment--Copy filed with department.
The director of equalization shall make a list of the apportionment or distribution. The list shall contain a complete description of each subdivision or tract of land of the district, with the amount and rate per acre of the apportionment or distribution of cost and the name of the owners of the subdivision or tract. Alternatively, the director of equalization may prepare a map on a convenient scale showing each of such subdivisions or tracts with the rate per acre of the apportionment entered on the map. If all lands on any map or section of a map are assessed at the same rate, a general statement to that effect is sufficient. The list or map shall be made in duplicate, one of which shall be filed in the office of the Department of Agriculture and Natural Resources and the other shall remain in the office of the board of directors for public inspection.
Source: SDC 1939, § 61.0904; SL 1949, ch 435, § 1; SDCL § 46-15-6; SL 2011, ch 165, § 418; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-7-7. Assessments to meet obligations of contracts with United States--Apportionment of benefits unnecessary under contract.
If any irrigation district, organized under the laws of this state, has contracted with the United States for a supply of water for the irrigation of lands within the district, the construction of irrigation or drainage works, or the operation of such works, or both, or other purposes authorized by law, the board of directors may make the assessments intended to meet the obligations of the district under the contract in accordance with the method and terms as provided by the contract. No apportionment of benefits by the director of equalization is necessary if so provided in the contract.
Source: SDC 1939, § 61.0904; SL 1949, ch 435, § 1; SDCL § 46-15-7; SL 2011, ch 165, § 419.
46A-7-8. Delivery of assessment roll to secretary--Notice of equalization meeting--Time for meeting--Roll available for inspection.
On or before the fifteenth day of July in each year, the director of equalization shall complete the assessment roll and deliver it to the secretary of the board of directors. The board shall immediately give notice of the assessment and of the time the board of directors, acting as a board of equalization, will meet to equalize assessments, by publication once each week for at least two consecutive weeks in a newspaper published in each of the counties comprising the district. The time fixed for the meeting may not be less than ten nor more than twenty days from the first publication of the notice; and in the meantime the assessment rolls shall remain in the office of the secretary for the inspection of all persons interested.
Source: SDC 1939, § 61.0905; SL 1949, ch 435, § 2; SDCL § 46-15-8; SL 1972, ch 236, § 5; SL 2011, ch 165, § 420.
46A-7-9. Board of equalization, board of directors constituting--Meetings, purpose--Apportionment of benefits and assessments--Duties of secretary.
Upon the day specified in the notice required by § 46A-7-8, for the meeting of the board of directors, which is hereby constituted a board of equalization for that purpose, it shall meet and continue in session from day to day, as long as may be necessary, not to exceed ten days exclusive of Sundays, to hear and determine such objections to the apportionment of benefits and assessments as may come before it; and the board may change the apportionment of benefits and assessments as may be just. The secretary of the board shall be present during its session and note the changes made in the apportionment of benefits and assessments of property, and in the names of the persons whose property is assessed; and within twenty days after the close of the session he shall have the total values and assessments, as finally equalized by the board, extended into columns and added.
Source: SDC 1939, § 61.0906; SDCL, § 46-15-9.
46A-7-10. Acreage assessment to cover bond and contract payments--Special fund.
The board of directors shall then levy an assessment against the acreage of the district sufficient to raise the annual interest on the outstanding bonds, to pay the principal coming due on the outstanding bonds prior to the next levy, and to make all payments due or to become due the ensuing year to the United States under any contract between the district and the United States, which, when collected shall be called the "bond and United States contract fund of irrigation district."
Source: SDC 1939, § 61.0907; SL 1949, ch 435, § 3; SDCL, § 46-15-10; SL 1976, ch 277, § 17.
46A-7-11. Assessment for operation, salaries and expenses.
If the board of directors deems it necessary, it may levy an assessment for the care, operation, and maintenance of irrigation works already constructed and for the payment of salaries of officers and general expenses, which assessment shall be called the "general fund of irrigation district."
Source: SDC 1939, § 61.0907; SL 1949, ch 435, § 3; SDCL, § 46-15-11; SL 1976, ch 277, § 18.
46A-7-12. Assessments--Rate of levy, computation.
In all assessments for the purpose of chapters 46A-4 to 46A-7, inclusive, the rate of levy in any one year shall be computed by adding to the amount or amounts desired to be raised ten percent, to cover anticipated delinquencies, and then dividing the sum thereof by the aggregate of the benefits apportioned for such year as in this chapter provided.
Source: SDC 1939, § 61.0909; SDCL, § 46-15-12.
46A-7-13. Contract with United States providing different deficiency assessment.
If an irrigation district organized under the laws of this state is under contract with the United States providing for a different deficiency assessment than is prescribed in § 46A-7-12, the provisions of the contract shall govern the district in making its assessments, if the contract has been approved by the necessary majority vote of the owners of the land affected at an election properly called for such purpose.
Source: SDC 1939, § 61.0909; SDCL § 46-15-13; SL 2011, ch 165, § 421.
46A-7-14. Neglect or refusal of board to make assessment--Adoption of assessment for preceding year.
If the board of directors of any irrigation district neglects or refuses to cause an assessment and levy to be made as provided in this chapter, the assessment of property made for the preceding year shall be adopted and shall be the basis of assessment for the district. The county commissioners of the county in which the district was originally organized shall cause an assessment roll of the district to be prepared and shall make the levy for the payment of the principal and interest on bonds, to meet all payments due or to become due the ensuing year to the United States under any contract between the district and the United States, and to meet the expenses for organizing and operating the district, in the same manner and with like effect as if the levy had been made by the board of directors. The expense incident to making the levy shall be borne by the district.
Source: SDC 1939, § 61.0907; SL 1949, ch 435, § 3; SDCL § 46-15-14; SL 2011, ch 165, § 422.
46A-7-15. Modification of contract with United States to eliminate charges or change time of payment--Cancellation of levy or assessment.
If the board of directors has made a levy or assessment under any contract between the United States and the district, and the United States thereafter modifies or supplements the contract or agreement to eliminate certain charges under the contract or agreement or to make the charges due at a later date than originally provided in the contract or agreement, the board may direct the cancellation of the levy or assessment previously made to raise funds to pay the United States that are under the modification or supplemental contract or agreement made due and payable at a later date.
Source: SDC 1939, § 61.0917; SDCL § 46-15-15; SL 2011, ch 165, § 423.
46A-7-16. Assessments--Computation and entry by secretary--Certification--Tax list.
The secretary of the board of directors shall compute and enter in separate columns of the assessment books the respective sums of dollars and cents in each fund, together with the sum payable by each tract obligated to the United States by contract, if any, for the payment of water charges to be paid on the property. The secretary shall certify to the auditor of the county in which the land is located the amount of the taxes in each fund levied upon each tract of land by the board, including sums due the United States, and the auditor shall enter the amount of each in separate columns of the tax list of the county. All tax lists when delivered to the county treasurer shall contain all taxes in each fund levied on each tract of land by the board of the irrigation district.
Source: SDC 1939, § 61.0907; SL 1949, ch 435, § 3; SDCL § 46-15-16; SL 2011, ch 165, § 424.
46A-7-17. Assessments levied for bond and United States contract fund--Collection by county treasurer.
The assessments levied for the bond and United States contract fund mentioned in § 46A-7-10 shall be collected by the county treasurer at the same time and in the same manner as all other taxes are collected in this state.
Source: SDC 1939, § 61.0907; SL 1949, ch 435, § 3; SDCL, § 46-15-17.
46A-7-18. Capital projects fund tax--Interest coupons received in payment.
Such county treasurer shall receive in payment of the district capital projects fund tax, for the year in which such taxes were levied, interest coupons issued by such irrigation district, due during such year and payable from such fund, the same as so much lawful money of the United States, if such interest coupons do not exceed the amount of the district capital projects fund which the person tendering the same owes.
Source: SDC 1939, § 61.0907; SL 1949, ch 435, § 3; SDCL, § 46-15-18.
46A-7-19. Assessments levied for general fund--Due date--Warrants received in payment.
The assessments levied for the general fund mentioned in § 46A-7-11 are due to the county treasurer on the thirty-first day of December next following the levy of the assessments and on the first day of May of the year after which the assessments have been levied for the general fund. All unpaid assessments for the fund become delinquent and draw interest and penalty as follows: on the first day of May and on the first day of each succeeding month, until paid, the Category D rate of interest as established in § 54-3-16 of the amount remaining unpaid shall be added thereto and collected by the treasurer. The county treasurer shall receive in payment of the general fund tax, for the year in which the tax is levied, warrants drawn against the general fund for such year, if the warrants do not exceed the amount of the general fund tax which the person tendering it owes.
Source: SDC 1939, § 61.0907; SL 1949, ch 435, § 3; SDCL, § 46-15-19; SL 1983, ch 28, § 57; SL 1984, ch 319, § 28.
46A-7-20. Taxes received for capital projects and general funds--Remittance by county treasurer.
All such taxes collected or received for the district capital projects and general funds, either in money, interest coupons, or warrants on general fund, by the treasurer of any county other than the one in which the district was originally organized shall be remitted by him to the treasurer of the county in which the district was originally organized, such remittance to be made on the fifth day of each and every month. All such taxes collected or received for the general fund of such district by the treasurer of the county in which the district was originally organized shall be paid to the treasurer of such irrigation district, upon an order signed by the president and secretary of such district, and all warrants received in payment of general fund taxes as provided in § 46A-7-19 may be turned over, as so much money, to the district treasurer on such order.
Source: SDC 1939, § 61.0907; SL 1949, ch 435, § 3; SDCL, § 46-15-20.
46A-7-21. Responsibilities of county treasurer for taxes.
All such taxes collected and paid to the county treasurer shall be received by the treasurer in the treasurer's official capacity. The treasurer is responsible for the safekeeping, disbursement, and payment of the taxes, the same as for other money collected in the treasurer's official capacity.
Source: SDC 1939, § 61.0907; SL 1949, ch 435, § 3; SDCL § 46-15-21; SL 2011, ch 165, § 425.
46A-7-22. Alternative method of collection of assessments against acreage within United States reclamation project.
In addition to other provisions of the laws of this state for the collection of assessments levied against the acreage of an irrigation district, the board of directors of any irrigation district organized within a United States reclamation project may make collections of all assessments levied against the acreage of the irrigation district through the office of the board.
Source: SL 1945, ch 348; SDC Supp 1960, § 61.0932; SDCL § 46-15-22; SL 2011, ch 165, § 426.
46A-7-23. Notice of decision to collect assessments against acreage in United States reclamation project.
Whenever a board of directors decides by unanimous vote to make collections of assessments, as provided by § 46A-7-22, it shall file notice thereof in the office of the county auditor of each county in which the district is situated.
Source: SL 1945, ch 348; SDC Supp 1960, § 61.0932; SDCL, § 46-15-23; SL 1983, ch 13, § 7.
46A-7-24. Decision of board of directors to collect assessments against acreage within United States reclamation project--Certificate, time for filing--Payment of assessments, time.
The certificate required in § 46A-7-23 shall be filed as aforesaid before the first day of May of the year in which the change of place of payment of such assessments is desired to be effectuated. Thereafter all assessments levied against the acreage of such irrigation district shall be collected by, and payable to, the treasurer of said irrigation district, at the office designated by the board of directors of said irrigation district at the same time and in the same manner as all other taxes and assessments are collected in this state.
Source: SL 1945, ch 348; SDC Supp 1960, § 61.0932; SDCL, § 46-15-24.
46A-7-25. Collection of assessments against acreage within United States reclamation project--Single assessment for operation and maintenance funds and contract funds, time for payment.
In districts which are following the alternative method of collecting assessments, as provided for by § 46A-7-22, a single assessment, to include operation and maintenance funds and contract funds, may be made, and such assessment so levied shall become due and payable on January first next following the levy of such assessment, and become delinquent if not paid in full on or before May first following such assessment and shall draw interest and penalty as provided in § 46A-7-19.
Source: SDC 1939, § 61.0907 as added by SL 1949, ch 435, § 3; SDCL, § 46-15-25.
46A-7-26. Determination of benefits--Fixing annual assessments--Completion and delivery of assessment roll.
In districts that use the alternative method of collecting assessments, as provided for by § 46A-7-22, the director of equalization shall, between the first day in September and the first day of November, in each year, make the examination and determine the benefits and fix the annual assessments to be levied against the tracts in the district, as provided for and in §§ 46A-7-4 to 46A-7-7, inclusive. The director of equalization shall, on or before the fifteenth day of November in each year, complete the assessment roll and deliver it to the secretary of the board of directors, who shall give notice of the assessment as provided in § 46A-7-8.
Source: SDC 1939, §§ 61.0904, 61.0905 as added by SL 1949, ch 435, §§ 1, 2; SDCL § 46-15-26; SL 2011, ch 165, § 427.
46A-7-27. Filing of certificate of decision to collect assessments against acreage within United States reclamation project--Treasurer of irrigation district to act in lieu of county auditor and treasurer.
If the written certificate of the board of directors is filed as provided in § 46A-7-23, the irrigation district is not required to certify to the county auditor the amount of the assessments, including sums due the United States, that have been levied against the acreage of the district. The auditor is not required to enter the amount of each of the sums in separate columns of the tax lists of the county; and the tax lists, when delivered by the auditor to the county treasurer, need not contain the assessments levied on the tracts of land within the irrigation district. The secretary of the board of directors of the irrigation district shall certify to the treasurer of the irrigation district the amount of the assessments, including sums due the United States, who shall act in lieu of the county auditor in entering the amount of assessments in each fund levied upon each tract of land by the board of directors, including sums due the United States, in separate columns of a book to be known as "irrigation district assessment collection book." The book shall be kept by the treasurer of the district as a public record of the irrigation district, and the treasurer shall thereafter act in lieu of the county treasurer in sending notices, collecting, and receipting for such assessments.
Source: SL 1945, ch 348; SDC Supp 1960, § 61.0932; SDCL § 46-15-27; SL 2011, ch 165, § 428.
46A-7-28. Collection of assessments against acreage within United States reclamation project--Duties of treasurer of district, certification of delinquencies.
The treasurer of any irrigation district, following the method provided in §§ 46A-7-22 to 46A-7-27, inclusive, for the collection of assessments, shall certify any delinquent assessment to the auditor of the county in which the land on which the delinquent assessment is situated on or before the tenth day of November each year. The auditor shall enter the amount due in separate columns of a supplementary tax list, to be known as "irrigation district delinquent assessment list" of the county and deliver a copy of the same to the county treasurer for collection in the same manner as all other taxes and assessments are collected in this state.
Source: SL 1945, ch 348; SDC Supp 1960, § 61.0932; SDCL, § 46-15-28; SL 1983, ch 13, § 8.
46A-7-29. Reversion to prior method of collection--Filing of certificate of change--Collection through office of county treasurer.
Any irrigation district, organized within a United States reclamation project, that chooses to collect its assessments as provided in §§ 46A-7-22 to 46A-7-28, inclusive, may revert back to the prior method of making collection through the county treasurer's office by filing with the county auditor of the county or counties stated in § 46A-7-23, within which the irrigation district is located, a certificate signed by a majority of the board of directors of the irrigation district stating that a majority of the board of directors of the irrigation district desires to make such a change. After the certificate is filed, beginning with the first day of May of the year in which the change is desired to be made, all requirements of the laws of this state for the collection of taxes and assessments through the county treasurer's office shall be complied with as though §§ 46A-7-22 to 46A-7-28, inclusive, had not been enacted.
Source: SL 1945, ch 348; SDC Supp 1960, § 61.0932; SDCL § 46-15-29; SL 2011, ch 165, § 429.
46A-7-30. Assessments--Payment under protest, disposition of money.
When any person against whose property any assessment has been made shall pay such assessment under protest, as provided by law for general taxes, the board of directors of the irrigation district may pass upon and make orders disposing of the money so paid under protest to any county treasurer in the same form and manner as provided by law, and such proceedings shall be had as by such law provided insofar as the same is applicable.
Source: SDC 1939, § 61.0917; SDCL, § 46-15-30.
46A-7-31. Refund of taxes or assessments--Filing of tax receipt showing payment under protest--Affidavit stating grounds for refund.
No taxes or assessments may be ordered refunded unless the person complaining files in the office of the secretary of the district a copy of the person's tax receipt, showing the same paid under protest, together with a sworn affidavit in writing showing one of the following reasons why such tax or assessment should be refunded:
(1) That the land upon which the assessment was levied is not within the boundaries of the district;
(2) That the land is exempt by law, setting forth the reason for the exemption; or
(3) That by reason of injury through seepage or subirrigation the land could not now be benefited by irrigation, or that the land is not susceptible of irrigation from the canal of the district.
Source: SDC 1939, § 61.0917; SDCL § 46-15-31; SL 2011, ch 165, § 430.
46A-7-32. Relevy of invalid, void or defective special tax or assessment--Assessment not invalidated by erroneous extension--Correction.
If any special tax or assessment levied upon any property located within the irrigation district is found to be invalid and uncollectible, or is adjudged to be void by a court of competent jurisdiction, or paid under protest and recovered by suit, because of any defect, irregularity, or invalidity in any of the proceedings or on account of the failure to observe and comply with any of the conditions, prerequisites, and requirements of any statute or resolution, the board of directors may relevy the special tax or assessment on the property in the same manner as other special taxes and assessments are levied, without regard to whether the formalities, prerequisites, or conditions before equalization have been met. If there is an erroneous extension of the water charge assessment, either against the wrong tract of land or against the wrong person, the assessment may not, for that reason, be invalidated. The district board upon the discovery of the error may release, abate, refund, or otherwise correct the assessment by directing the county auditor to release, abate, refund, or otherwise correct the assessment and to spread the assessment against the proper person or against the correct tract, or to abate the assessment, or to refund the water charge assessment erroneously collected, as the case may require.
Source: SDC 1939, § 61.0917; SDCL § 46-15-32; SL 1976, ch 277, § 19; SL 2011, ch 165, § 431.
46A-7-33. Assessment as lien against property assessed--Interest--Collection--Sale of land.
All assessments on real property and to the extent provided by the act of Congress of August 11, 1916, as amended to January 1, 2011, on entered and unentered public lands, are a lien against the property assessed from and after the day the real estate taxes become a lien. The assessments shall draw interest at the same rate and from the same date as unpaid real estate taxes, and such lien is not removed until the assessments are paid or the property sold for the payment of the assessments. The county treasurer shall collect the assessments in the same manner as other taxes against real estate are collected, and the revenue laws of the state for the collection of taxes and sale of land for such taxes apply to the collection of assessments under this chapter.
Source: SDC 1939, § 61.0911; SDCL § 46-15-33; SL 2011, ch 165, § 432.
46A-7-34. Bond series lien preferences--Federal contract payments lien preferences.
The lien for the bonds of any series may be on a parity with or a preferred lien to that of any subsequent series, and the lien for the payments due to the United States under any contract between the district and the United States, accompanying which bonds have not been deposited with the United States, may be a preferred lien to that of any issue of bonds or any series of any issue subsequent to the date of such contract.
Source: SDC 1939, § 61.0911; SDCL, § 46-15-34; SL 1976, ch 277, § 20.
46A-7-35. Application of funds from assessment and levy--Priority in distribution.
The funds arising from assessment and levy in any year shall be devoted to the obligations of the district payable from such funds and, as to all obligations payable from the bond and United States contract fund, shall be so devoted in the order of priority of the obligation.
Source: SDC 1939, § 61.0911; SDCL, § 46-15-35; SL 1976, ch 277, § 21.
46A-7-36. Delinquent assessments--Compromise, abatement, or reallocation.
If the board of directors determines that assessments levied before February 25, 1933 against the lands of the district for either its general fund or bond and United States contract fund are delinquent to such an extent that the enforcement of the payments thereof through tax title proceedings is impracticable, and further determines that it is to the benefit of the irrigation district to compromise, abate, or reallocate any part or all of such assessments, the board may compromise, abate, or reallocate any of the delinquent assessments, subject to the following conditions:
(1) All claims or obligations against the district's general fund for all years in which the assessments were levied have been paid in full before the compromise, abatement, or reallocation, or if not paid in full, the owners of the obligations have consented in writing to the proposed compromise, abatement, or reallocation;
(2) If the district's bond and United States contract fund would be affected by the compromise, abatement, or reallocation, the written consent of the United States, if the assessments were levied to meet contract obligations to the United States, or of all bondholders, if the assessments were levied to meet bonded indebtedness or interest on the bonds, shall be obtained to each such proposed compromise, abatement, or reallocation, before it becomes effective. The compromises, abatements, or reallocations may be made, without the individual consent of the United States or bondholders, if made pursuant to the terms of a contract between the district and the United States or the bondholders. The board is hereby vested with authority to execute the contract with the United States or the district bondholders. This section does not limit the rights of any irrigation district under the existing laws to compromise, abate, or refund district assessments but is cumulative to those rights.
Source: SDC 1939, § 61.0908; SDCL § 46-15-36; SL 2011, ch 165, § 433.
46A-7-37. Delinquent assessments--Sales of land, bidding in by board of directors, striking off land to district, certificate of tax sale.
At all sales of all lands for delinquent taxes where all, or a portion, of such delinquent taxes are taxes and assessments levied and assessed by any irrigation district against the lands to be sold, the directors, if there be no other bidder for such land at such tax sale, may bid therefor the total amount of all delinquent taxes and assessments, penalty, and interest against such land, and thereupon the county treasurer shall strike off said lands to such irrigation district and issue certificate of tax sale to said irrigation district the same as such certificates of tax sales are issued to other purchasers.
Source: SDC 1939, § 61.0912; SDCL, § 46-15-37.
46A-7-38. Special revenue fund for purchase of tax certificates and titles--Purpose--Resolution--Payment of taxes, assessments, interest, and penalties.
For the purpose of paying the taxes, assessments, interest, and penalties, the directors may create by resolution a fund to be known as the "special revenue fund for the purchase of tax certificates and titles." The directors may provide funds for the special revenue fund by levy, bond issue, or otherwise, and the district may pay the taxes, assessments, interest, and penalties by issuing a warrant to the county treasurer against the fund, if there is sufficient money in the fund to pay the taxes, assessments, interest, and penalties in full upon demand.
Source: SDC 1939, § 61.0912; SDCL § 46-15-38; SL 2011, ch 165, § 434.
46A-7-39. Taxes paid by district--Distribution by county treasurer--Redemption or sale of property--Deposit of proceeds.
If taxes are paid by the district as provided in this chapter, the county treasurer shall distribute that portion of the tax belonging to the irrigation district to the several funds as designated in the tax levy and assessment. At the time of redemption, or of the sale by the district of the tax sale certificate, or of the property obtained through the certificate, such funds as are realized shall be deposited with the county treasurer, who shall credit the proceeds of sale to the special revenue fund specified in § 46A-7-38.
Source: SDC 1939, § 61.0912; SL 2011, ch 165, § 435.
46A-7-40. Expenditure from special revenue fund--Transfer of balance in inactive fund to debt service fund.
No expenditures may be made from the special revenue fund except for the purposes as specified in §§ 46A-7-38 and 46A-7-39. If, by resolution of the board of directors, the fund is deemed inactive, the balance remaining in the fund shall be transferred to a debt service fund to be applied upon any indebtedness that may have been incurred by the district by reason of the creation of the special revenue fund, if any exists; otherwise, the balance shall be transferred to the general fund of the district.
Source: SDC 1939, § 61.0912; SDCL § 46-15-40; SL 2011, ch 165, § 436.
46A-7-41. Tax sale certificate issued to county--Purchase by district--Purchase price, payment by board of directors.
Any irrigation district may purchase the certificate of tax sale issued to any county for land sold at tax sale against which any of its taxes and assessments are delinquent, or, if deed therefor has been issued to the county, may purchase such lands from the county by paying to the county treasurer all state, county, first or second class municipality, school district, and other delinquent taxes, together with penalty, interest, and costs of publication and sale. Such payment shall be made by the directors issuing and delivering to the county treasurer a warrant drawn against the special revenue fund, if there shall be sufficient money in said fund to pay the same in full upon demand, and thereupon such treasurer shall assign such certificate of tax sale to such irrigation district, or the commissioners of the county shall convey such lands to said district.
Source: SDC 1939, § 61.0913; SDCL, § 46-15-41; SL 1992, ch 60, § 2.
46A-7-42. Land sold at tax sale to district--Tax deed, issuance to holder of certificate of tax sale in the absence of redemption.
When there has been no redemption of the land so sold at tax sale to an irrigation district, or to any other person, or of the land struck off to the county for which a certificate of sale has been assigned to an irrigation district, or to any other person, in the manner and within the time prescribed for the redemption of lands from such tax sales, the county treasurer shall issue a tax deed therefor to such irrigation district, or other holder of a certificate of sale. The holder of such certificate of tax sale, whether said holder be an irrigation district or an individual, may at any time after the expiration of two years from the date of sale, if the same has not been redeemed within said period, apply to the county treasurer, as provided by law, for the issuance of a tax deed to said property, and upon such application the county treasurer shall issue such tax deed in manner and form provided by law to said holder.
Source: SDC 1939, § 61.0914; SDCL, § 46-15-42.
46A-7-43. Tax deed issued to district--Sale of land--Price.
After the issuance of any such tax deed to an irrigation district, the directors may sell and convey the land so purchased, or any part of the land, at either public or private sale, whether or not the price received for the land equals the amount of delinquent taxes, assessments, penalties, interest, and costs against the lands. However, if the lands are offered for sale at public sale, the directors may reject any bids on the lands, and no such lands may be sold by the directors at private sale until the lands have been offered for sale at public sale, nor at a price less than the highest price bid for the lands at the public sale at which the lands were offered. If no bid is received for the lands when the lands are offered for public sale, the directors may then sell the lands in such manner and for such price as they deem to be in the best interests of the district.
Source: SDC 1939, § 61.0915; SDCL § 46-15-43; SL 2011, ch 165, § 437.
46A-7-44. Land not subject to sale for delinquent taxes before delivery of water.
The provisions of §§ 46A-7-37 to 46A-7-43, inclusive, apply only if the irrigation district has commenced delivery of water to any lands within the irrigation district.
Source: SDC 1939, § 61.0916; SDCL § 46-15-44; SL 2011, ch 165, § 438.
46A-7-45. Warrants of districts--Limitation on amount issued--Additional levy.
No irrigation district may in any year issue warrants in excess of ninety percent of the levy for the year. However, in case of due and outstanding obligations against the district on account of operation, maintenance, and current expenses contracted before the year in which any levy is made, the district board may make an additional levy, not to exceed one dollar per acre upon all irrigable lands within the district, to create a special fund for the payment of past due obligations.
Source: SDC 1939, § 61.0910; SDCL § 46-15-45; SL 2011, ch 165, § 439.
46A-7-46. Claims against fund fully paid--Transfer of unused balance.
If the claims or obligations against any fund for any year are fully paid, the board of directors may transfer any unused balance to any other fund for the preceding or succeeding year.
Source: SDC 1939, § 61.0910; SDCL § 46-15-46; SL 2011, ch 165, § 440.
46A-7A-1 to 46A-7A-39. Repealed.
46A-7A-40
Repealed.
46A-7A-41 to 46A-7A-182. Repealed.
46A-8-1
Association organized under state law in conformity with federal law--Amendment
of articles of incorporation, purposes.
46A-8-2
Proposed amendment of articles of incorporation of association, time and manner of
making, submission to shareholders, publication.
46A-8-3
Bylaws of association--Repeal and amendment, submission of proposition to
shareholders, publication.
46A-8-4
Acceptance of association books for public record by county commissioners--Recording of stock subscriptions--Charges.
46A-8-5
Election of officers and directors of association.
46A-8-6
Assessments against shareholders--Purpose--Bylaws--Nonpayment.
46A-8-7
Lien of association for unpaid assessments--Priority--Duration--Foreclosure and sale
of land.
46A-8-8
Authority of association to transfer assets to municipality.
46A-8-1. Association organized under state law in conformity with federal law--Amendment of articles of incorporation, purposes.
Any water users' association organized under the laws of this state and in conformity with the requirements of the United States under the Reclamation Act of June 17, 1902, may in the manner provided in this chapter so amend its articles of incorporation as to modify or enlarge its business or the purposes for which it was created, change the number of its directors or trustees; change its name or location within the state, increase or diminish its capital stock, or make any provision which might have been originally provided in its certificate or articles of incorporation.
Source: SDC 1939, § 61.0204; SDCL, § 46-11-1.
46A-8-2. Proposed amendment of articles of incorporation of association, time and manner of making, submission to shareholders, publication.
Such amendment or amendments may be made at any annual meeting of the shareholders, or at any special meeting called for that purpose, by a majority of the votes cast upon such proposition at such election. No proposed amendment may be submitted to the shareholders until it has first received the approval of two-thirds of the board of directors at a regular or duly called session thereof. No proposed amendment may be submitted until it has been published in full at least once each week for four consecutive weeks in at least two newspapers of general circulation within the irrigable area of the association. The last publication may not be more than seven days before any such election. However, if all the shareholders are notified directly by mail at their last known addresses of the amendment, the amendment does not need to be published pursuant to this section.
Source: SDC 1939, § 61.0205; SDCL, § 46-11-2; SL 1996, ch 266, § 2.
46A-8-3. Bylaws of association--Repeal and amendment, submission of proposition to shareholders, publication.
Any bylaw of such water users' association may be repealed or amended, or new bylaws may be adopted, at the annual meeting or at any other meeting of the shareholders called for that purpose by the directors, by a majority of the votes cast upon such propositions respectively at such election. The bylaw or amendment may not be submitted until it has first received the approval of two-thirds of the board of directors at a regular or duly called session thereof. The bylaw or amendment may not be submitted until it has first been published in full for at least two weeks next preceding such submission in at least two newspapers of general circulation within the irrigable area of such association. However, if all the shareholders are notified directly by mail at their last known addresses of the bylaw or amendment, the bylaw or amendment does not need to be published pursuant to this section.
Source: SDC 1939, § 61.0206; SDCL, § 46-11-3; SL 1996, ch 266, § 3.
46A-8-4. Acceptance of association books for public record by county commissioners--Recording of stock subscriptions--Charges.
The board of county commissioners of any county in which there has been a water users' association organized in conformity with the requirements of the United States under the Reclamation Act of June 17, 1902, as amended to January 1, 2011, and which, under its articles of incorporation, is authorized to furnish water only to its stockholders, may accept the water users' association books for public record, containing printed copies of their articles of incorporation and forms of subscription to stock and to use the books for recording the stock subscriptions of the association. The charges for the recording of the stock subscriptions shall be made on the basis of the number of words actually written therein.
Source: SDC 1939, § 12.2903; SDCL § 46-11-4; SL 2011, ch 165, § 462.
46A-8-5. Election of officers and directors of association.
At all elections of any such association the person receiving the highest number of votes for any office shall be deemed elected. All elections of directors shall be by districts and must be by ballot, and a vote of the shareholders representing a majority of the shares of stock cast at such election and which shares are appurtenant to lands within the district in which such candidate resides is necessary to a choice.
Source: SDC 1939, § 61.0203; SDCL, § 46-11-5.
46A-8-6. Assessments against shareholders--Purpose--Bylaws--Nonpayment.
Any water users' association organized under the laws of this state and in conformity with the requirements of the United States under the Reclamation Act of June 17, 1902, as amended to January 1, 2011, and which, under its articles of incorporation, may furnish water only to its shareholders, may, for the purpose of raising revenue necessary for the accomplishment of the purposes of the association, levy assessments from time to time, as required, against its shareholders. The shareholders may make and enforce the necessary bylaws for the making, levying, collecting, and enforcing of the assessments. The nonpayment of any of the assessments is not a bar to the levying and collecting of other assessments against the same shareholders.
Source: SDC 1939, § 61.0201; SDCL § 46-11-6; SL 2011, ch 165, § 463.
46A-8-7. Lien of association for unpaid assessments--Priority--Duration--Foreclosure and sale of land.
Such associations have the first and prior lien for all unpaid assessments on the lands of the shareholder against which the assessments are levied, and for all deferred payments on the water right appurtenant to the lands. The lien is in all respects prior to any other liens created or attempted to be created by the owner and possessor of the lands. The lien shall remain in effect until the last deferred payment for the water right and any unpaid assessments levied by the association against the land are fully paid and satisfied, according to the terms of the contract under which the water right was acquired, the provisions of this chapter, and the bylaws of the association relating to assessments. The lien shall be enforced by the association by the foreclosure and sale of the lands, or so much thereof as may be necessary, in the manner provided by law for the foreclosure of mortgages on real property.
Source: SDC 1939, § 61.0202; SDCL § 46-11-7; SL 2011, ch 165, § 464.
46A-8-8. Authority of association to transfer assets to municipality.
Any water user's association organized pursuant to this chapter may, by a majority vote of its shareholders, sell, lease, or otherwise dispose of part or all of its assets to a municipality.
Source: SL 1982, ch 312, § 1; SDCL Supp, § 46-11-8.
CHAPTER 46A-9
WATER USER DISTRICTS
46A-9-1 Purpose of chapter.
46A-9-2 Definition of terms.
46A-9-3 Organization--Actions by and against--Creation and incorporation.
46A-9-4 Petition for organization of district--Filing with and approval by board--Contents.
46A-9-5 Lands included in district.
46A-9-6 Organization within territorial boundaries of another district.
46A-9-7 Directors--Election at large or from election divisions--Boundaries of divisions.
46A-9-8 Grouping of directors elected at large--Term of office.
46A-9-9 Petition for organization of district--Number of signatures required--Name, post office address, and location of land of petitioner.
46A-9-10 Instruments constituting petition for organization of district--Affidavit of circulator as to signatures on each sheet--Form.
46A-9-11 Maps, plans and estimates accompanying petition for organization of district--Location of lands within proposed district.
46A-9-12 Examination of petition by Department of Water and Natural Resources to determine compliance with law--Noncompliance with law, dismissal of petition.
46A-9-13 Publication of petition for organization of district.
46A-9-14 Protest against organization of district--Right to file with Board of Water and Natural Resources--Determination of validity by board.
46A-9-15 Investigation of proposed district and works by Board of Water and Natural Resources--Costs.
46A-9-16 Declaration of feasibility of proposed project and conformance to public convenience--Dismissal of petition or certificate of feasibility--Filing of certificate--District as public corporation.
46A-9-17 Validation of prior districts and boundaries--Validation of prior proceedings, bonds, and contracts.
46A-9-18 Board of directors--Qualification upon filing certificate of organization--Vacancy created by failure to qualify--First meeting.
46A-9-19 Additional territory, inclusion in district.
46A-9-20 Extension of district--Petition to include additional territory--Contents--Filing.
46A-9-21 Petition for expansion of district--Map showing location of lands to be included to accompany--Plans and estimates.
46A-9-22 Publication of notice for extension of district--Filing of protest.
46A-9-23 Action by Board of Water and Natural Resources on petition for extension of district--Certificate of approval--Filing--Effect.
46A-9-23.1 Exclusion of lands from district--Grounds--Procedure.
46A-9-23.2 Notices of hearing on exclusion--Protests.
46A-9-24 Members of board of directors succeeding original board--Nomination and election--Term of office.
46A-9-25 Hour and place of election.
46A-9-26 Election of directors--Voting rights.
46A-9-27 Notice of election time, place, and purpose--Mailing or publication.
46A-9-28 Registration of voters--Conduct of election--Costs.
46A-9-29 Candidate to fill vacancy or succeed an outgoing director--Vote necessary for election.
46A-9-30 Director to be landowner or entryman.
46A-9-31 Removal of members of board of directors from office--Grounds--Procedure.
46A-9-32 Vacancies on board of directors--Declaration of existence--Filling--Member elected to fill, term of office.
46A-9-33 Reimbursement of expenses and compensation of board members.
46A-9-34 Officers--Election by board of directors--Appointment of executive committee and other employees.
46A-9-35 Bond of treasurer.
46A-9-36 Corporate powers of district vested in board of directors.
46A-9-37 Bylaws and procedures--Adoption by board of directors--Minutes of meetings--Records of account, kept at principal place of business, open to public inspection.
46A-9-38 Indemnification of directors, officers, employees, or agents of districts.
46A-9-39 Powers of district.
46A-9-40 Powers of corporation for public purposes--Acquisition and disposition of property.
46A-9-41 Acquisition, management, use, and operation of works and property--Disposition of works.
46A-9-42 Transfer of obligations of nonprofit rural water supplier or wastewater system operator to water user district, sanitary district, or municipality--Majority vote of district.
46A-9-43 Contracts with governmental agencies authorized for certain purposes.
46A-9-44 Extraterritorial powers of district.
46A-9-45 Appropriation of waters of state by district--Interference with existing water rights forbidden.
46A-9-46 Eminent domain--Appraisement of private property or interest.
46A-9-46.1 Municipal approval of location of wastewater plant or system--Exception for existing plant or system.
46A-9-47 District has no power to tax or levy assessments--Others have no liability for district indebtedness or obligations.
46A-9-48 Costs of operation of district--Contract for payment of rent or charge for water storage or water supply.
46A-9-49 Grants or loans--Gifts.
46A-9-50 Cooperation with United States in acquisition and disposition of property.
46A-9-51 Eminent domain laws applicable to irrigation districts apply.
46A-9-52 Contracts governed by public agency procurement law.
46A-9-53 Filing of plans and specifications--Advertisement for bids.
46A-9-54 Contracts for proposed construction work--Employment of citizens of state--Bond of contractor.
46A-9-55 Certain proposed works exempt from competitive bidding requirements.
46A-9-56 Borrowing power of district--Sources from which obligations payable--Authorization, issuance, and sale of bonds.
46A-9-57 District obligations--Pledge of revenue for payment--Collateral security for loan.
46A-9-58 Refunding of district obligations.
46A-9-59 Revenues of district--Payment into special fund--Collection and disposition of special fund, terms, and conditions.
46A-9-60 Agreement between directors and holders of district obligations as to charges for water, sewage disposal, or other services.
46A-9-61 Prices, rates, and charges--Contracts.
46A-9-62 Default in payment of money specified in agreement--Termination of contract--Right to recovery not affected by discontinuation of services.
46A-9-63 Funds of district--Creation by board of directors--Identification--Separate accounts.
46A-9-64 Construction fund--Deposit of bond proceeds--Credit of interest received upon deposits--Disbursements--Balance transferred to debt service fund.
46A-9-65 Water or wastewater fund--Credit of revenue of works and operations--Payment of operation and maintenance costs.
46A-9-66 Debt service fund--Transfer of balance from water fund--Moneys pledged for payment of evidences of indebtedness.
46A-9-67 Deposit of funds--Payment of claims.
46A-9-68 Fiscal year--Audit of financial affairs by board of directors, filing of written report.
46A-9-69 Disposition of water supply works, drainage works, or wastewater systems.
46A-9-70 Sale of unneeded works--Submission of question to Board of Water and Natural Resources--Special election--Notice--Majority vote authorizes sale.
46A-9-71 Mortgage or hypothecation of property to secure payment of loans from governmental agencies.
46A-9-72 Mortgage or trust deed to secure payment of borrowed money--Foreclosure upon default and appointment of receiver.
46A-9-73 Dissolution of district--Special election--Notice--Conditions for dissolution.
46A-9-74 Dissolution complete upon resolution of board canvassing vote--Filing.
46A-9-75 Cancellation of applications for appropriation of water upon dissolution.
46A-9-76 Municipalities excepted from chapter--Contracts with district.
46A-9-77 Irrigation districts--Powers and functions unaffected by chapter.
46A-9-78 Retirement system--Participation.
46A-9-79 Appointment of water master.
46A-9-80 Duties of water master.
46A-9-81 Removal of water master.
46A-9-82 Grievance appeal.
46A-9-83 Water Management Board not affected.
46A-9-84 Group insurance for members of board of directors.
46A-9-85 Director or employee benefit from contract authorized.
46A-9-86 Director or employee benefit from contract authorized--Direct benefit described.
46A-9-1. Purpose of chapter.
Conservation of the state's water resources is hereby declared to be a state function, and the public interest, welfare, convenience, and necessity require the creation of water user districts and the construction of systems of works, as provided in this chapter, for the conservation, storage, distribution, and utilization of water and the collection, treatment, and disposal of wastewater. The construction of systems of works by such districts, as provided in this chapter, is hereby declared to be in all respects for the welfare and benefit of the people of South Dakota. It is the intention of the Legislature of South Dakota that this chapter shall be liberally construed to effectuate these purposes.
Source: SL 1939, ch 291, § 1; SDC Supp 1960, § 61.1301; SDCL, § 46-16-1; SL 1974, ch 286, § 1; SL 2006, ch 226, § 1.
46A-9-2. Definition of terms.
Terms used in this chapter mean:
(1) "Board," the board of directors of a district organized under this chapter;
(2) "City" or "town," a municipal corporation as classified in §§ 9-2-1 and 9-2-2. The term, city, also means a city organized under special territorial charter;
(3) "Landowner," any resident of South Dakota who is an owner of land in any county containing any proposed or existing water user district as evidenced by records in the office of the register of deeds or director of equalization. However, if land is sold under a contract for deed, which is of record in the office of the register of deeds or director of equalization, both the vendor and vendee shall be treated as landowners;
(4) "Project," any one of the works defined in this section, or any combination of such works which are physically connected or jointly managed and operated as a single unit;
(5) "Water Management Board," the state board created in § 1-41-15;
(6) "Water user district" or " district," any district organized under this chapter, either as originally organized or as the district is reorganized, altered, or extended;
(7) "Works" and "system," all lands, property, rights, rights-of-way, easements, and franchises relating thereto and deemed necessary or convenient for their operation, and all water rights acquired or exercised by the board in connection with the works or system. The terms, works and system, include all means of conserving, controlling, and distributing water, including reservoirs, dams, feeder canals, diversion canals, distributing canals, lateral ditches, structures, pumping units, mains, pipelines, and waterworks systems. The terms include all such works for the conservation, development, storage above or under the ground, spreading, distribution, utilization, and drainage of water, including works for the purpose of irrigation, drainage, flood control, stock watering, and supplying water for public, domestic, industrial, and other uses. The terms include any plant or system for the collection, treatment, or disposal of wastewater, including sanitary sewers and sewage and sewage treatment plants and systems.
Source: SL 1939, ch 291, § 2; SDC Supp 1960, § 61.1302; SDCL, § 46-16-2; SL 1974, ch 286, § 2; SL 1975, ch 277, § 1; SL 1976, ch 279; SL 1990, ch 363, § 6; SL 2006, ch 226, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
46A-9-3. Organization--Actions by and against--Creation and incorporation.
A water user district may be organized as provided in this chapter, and may sue and be sued in its corporate name. The procedure for creating and incorporating a district under the provisions of this chapter shall be as provided by §§ 46A-9-4 to 46A-9-18, inclusive.
Source: SL 1939, ch 291, §§ 3, 4; SL 1943, ch 310; SDC Supp 1960, §§ 61.1303, 61.1304 (1); SDCL, § 46-16-3.
46A-9-4. Petition for organization of district--Filing with and approval by board--Contents.
A water user district may be organized under the provisions of this chapter by filing in the Department of Agriculture and Natural Resources a petition in compliance with the requirements set forth in this section, and the approval of the petition by the Board of Water and Natural Resources as provided in this chapter. The petition shall be addressed to the Board of Water and Natural Resources and shall state in substance that it is the intent and purpose of the petitioners to create a district under the provisions of this chapter, subject to approval by the board. The petition shall contain:
(1) The name of the proposed district;
(2) The object and purpose of the system proposed to be constructed or acquired, together with a general description of the nature, location, and method of operation of the proposed works;
(3) A description of the lands constituting the proposed district and of the boundaries of the proposed district, and the names of any municipalities included partly or wholly within the boundaries of the proposed district;
(4) The location of the principal place of business of the proposed district;
(5) A statement that the proposed district does not have the power to levy taxes or assessments;
(6) The number of members of the board of directors of the proposed district, which may not be less than five nor more than thirteen, a statement as to whether the directors shall be elected at large or shall be apportioned to election divisions and elected by the voters of the election divisions, the names and addresses of the members who shall serve until their successors are elected and qualified as provided in this chapter, and if election divisions are provided for, the respective divisions which the directors are to represent. The persons named in the petition as directors shall be owners of land or entrymen within the district, and, if election divisions are provided for, they shall be owners of land or entrymen within the respective divisions they are to represent.
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL § 46-16-4; SL 1974, ch 286, § 3; SL 1992, ch 60, § 2; SL 2011, ch 165, § 465; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-9-5. Lands included in district.
The lands proposed to be included within a water user district need not consist of contiguous parcels. A district may consist of lands wholly within or wholly outside the limits of municipalities or of lands partly within and partly outside such limits; and a district may include all or part of the area within one or more such municipalities.
Source: SL 1939, ch 291, § 3; SDC Supp 1960, § 61.1303; SDCL, § 46-16-5; SL 1992, ch 60, § 2.
46A-9-6. Organization within territorial boundaries of another district.
Nothing in this chapter prevents the organization of a water user district under this chapter within, or partly within, the territorial boundaries of another district organized under this chapter, or of an irrigation district organized under the provisions of chapter 46A-4, if the works or systems, the operations of the works or systems, the exercise of powers and the assumptions of duties and responsibilities under this chapter, of one district, do not nullify, conflict with, or materially affect those of another such district.
Source: SL 1939, ch 291, § 3; SDC Supp 1960, § 61.1303; SDCL § 46-16-6; SL 2011, ch 165, § 466.
46A-9-7. Directors--Election at large or from election divisions--Boundaries of divisions.
Directors may be elected either at large, or from election divisions, without regard to whether municipality areas are included within the water user district. If the petition states that the directors shall be elected from election divisions, the petition shall describe the boundaries of the divisions. The boundaries may be drawn either with or without regard to the corporate limits of any municipality included partly or wholly within the district boundaries.
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL § 46-16-7; SL 1992, ch 60, § 2; SL 2011, ch 165, § 467.
46A-9-8. Grouping of directors elected at large--Term of office.
In the petition, if directors are to be elected at large, the directors named shall be divided as nearly as possible into three equal groups, to be designated Group 1, Group 2, and Group 3, respectively. In either case, the members of Group 1 shall hold office until their successors, elected at the first regular water user district election thereafter, shall have qualified; the members of Group 2 shall hold office until their successors, elected at the second regular district election thereafter, shall have qualified; and the members of Group 3 shall hold office until their successors, elected at the third regular district election thereafter, shall have qualified. Thereafter all directors elected shall serve for a term of three years and until their successors are elected and qualified. After the name of each director shall be stated to which of said three groups he belongs.
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL, § 46-16-8.
46A-9-9. Petition for organization of district--Number of signatures required--Name, post office address, and location of land of petitioner.
The petition shall be signed by twenty-five percent of the landowners or entrymen within the area constituting the proposed water user district, or by their duly authorized representatives. However, if the proposed district includes any portion of the area within a municipality, the petition shall be signed by twenty-five percent of the landowners or entrymen in the portion of the proposed district area within each such municipality, or by their duly authorized representatives, and shall also be signed by twenty-five percent of the landowners or entrymen in the area lying outside the limits of the municipalities or by their duly authorized representatives. On each petition, set opposite the signature of each petitioner, shall be stated the petitioner's name and post office address and the location of land of which the petitioner is the owner or entryman.
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL § 46-16-9; SL 1992, ch 60, § 2; SL 2011, ch 165, § 468.
46A-9-10. Instruments constituting petition for organization of district--Affidavit of circulator as to signatures on each sheet--Form.
The petition may contain any number of separate instruments, and to each sheet for petitioners' signatures shall be attached a full and correct copy of the petition. Every sheet of every such petition containing signatures shall have upon it and below the signatures an affidavit by the circulator in substantially the following form:
State of South Dakota,
County of ________ ss.
________, being first duly sworn, deposes and says, that he is the circulator of the foregoing petition containing ________ signatures; that each person whose name appears on said petition sheet personally signed said petition in the presence of affiant; that he believes that each of said signers is an owner or entryman of the land described opposite his signature, to be included within the proposed water user district, and residing at the address written opposite his name, and that affiant stated to every petitioner before he affixed his signature the legal effect and nature of said petition.
________________________________
Circulator
Subscribed and sworn to before me this ________ day of ________, 19____.
________________________________
Notary Public
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL, § 46-16-10.
46A-9-11. Maps, plans and estimates accompanying petition for organization of district--Location of lands within proposed district.
The petition shall be filed with the Department of Agriculture and Natural Resources together with a list of the petitioners' names, mailing addresses, and lands owned or entered. The petition shall be accompanied by a map or maps showing the location of lands within the proposed district and the proposed system of works, and by other maps, plans, and estimates as may be necessary to describe fully the proposed system.
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL, § 46-16-11; SL 1997, ch 255, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-9-12. Examination of petition by Department of Water and Natural Resources to determine compliance with law--Noncompliance with law, dismissal of petition.
Upon receipt of the petition, the department shall determine whether the petition complies with the requirements set forth in §§ 46A-9-4 to 46A-9-11, inclusive, and dismiss the petition if the requirements have not been complied with, but without prejudice to the right of the petitioners to present a new petition covering the same matter, or the same petition with additional signatures if additional signatures are necessary.
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL, § 46-16-12; SL 1997, ch 255, § 2.
46A-9-13. Publication of petition for organization of district.
If the department determines the petition complies with requirements of this chapter, a notice shall be published in each county in which lands within the proposed water user district lie, in a legal newspaper of general circulation in the county, once each week for at least two successive weeks. The last date of publication shall be at least thirty days prior to the Board of Water and Natural Resources' meeting at which the petition is first considered. The notice shall be published at the petitioners' expense. The notice shall contain the information required in § 46A-9-4, shall state when the petition was filed, shall state a public place in each county affected where the petition may be examined, and shall state the date, time, and place at which the petition will be considered by the Board of Water and Natural Resources. Any owner or entryman of land within the area to be included, who did not sign the petition may file a written protest with the department as provided in § 46A-9-14.
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL, § 46-16-13; SL 1972, ch 239, § 5; SL 1997, ch 255, § 3.
46A-9-14. Protest against organization of district--Right to file with Board of Water and Natural Resources--Determination of validity by board.
Any owner or entryman of land within the proposed water user district who did not sign the petition may file with the Board of Water and Natural Resources a written protest against the qualifications of any signer of the petition, and it shall be the duty of the board to consider and determine the validity of such protests.
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL, § 46-16-14.
46A-9-15. Investigation of proposed district and works by Board of Water and Natural Resources--Costs.
If the Board of Water and Natural Resources determines that the petitioners have complied with the requirements of this chapter, the board shall make an immediate investigation of the proposed water user district and of its proposed works, systems, or plans and of the engineering and economic feasibility of the project. The board may make an estimate of the cost of the investigation and may require the petitioners to defray part or all of the estimated cost before proceeding with the investigation.
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL § 46-16-15; SL 2011, ch 165, § 469.
46A-9-16. Declaration of feasibility of proposed project and conformance to public convenience--Dismissal of petition or certificate of feasibility--Filing of certificate--District as public corporation.
The Board of Water and Natural Resources, within ninety days from the receipt of the petition, or within ninety days from the time funds become available to defray the cost of the investigation, shall declare that the proposed project is or is not feasible and conforming to public convenience and welfare. If the project is deemed not feasible, the board shall dismiss the petition. However, if the board deems the project feasible and conforming to public convenience and welfare, the board shall immediately execute a certificate, in duplicate, setting forth a true copy of the petition and declaring that the petition is approved. The board shall file the certificate in the Office of the Secretary of State and a copy of the certificate, certified by the secretary of state, in the office of the county auditor of each county in which any of the lands in the water user district are located. Thereupon, the district, under its designated name, is a body politic and corporate under the provisions of this chapter and is a public corporation of the State of South Dakota.
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL § 46-16-16; SL 2011, ch 165, § 470.
46A-9-17. Validation of prior districts and boundaries--Validation of prior proceedings, bonds, and contracts.
All water user districts, created under the provisions of this chapter, and additions to and deletions from the districts, established or purporting to be established or adjusted before July 1, 1978, pursuant to the provisions of this chapter and having a de facto existence of at least one year, are hereby declared to be valid and legally created political subdivisions of the state. The regularity and validity of the creation of such water user districts in existence for one year or any boundary adjustments of the districts is not open to question in any court in the state. All acts and proceedings of any water user district or of its board of directors, or both, leading up to the authorization and execution of an existing contract between any water user district and the United States of America, and all acts and proceedings of any water user district or of its board of directors, or both, leading up to the issuance and deliverance of bonds of any water user district are hereby legalized, ratified, confirmed, and declared valid to all intents and purposes. All existing contracts and outstanding bonds are hereby legalized and declared to be valid and legal obligations of and against the water user district executing or causing the execution of the contracts or bonds. This section does not apply to any suit or proceeding legally initiated before July 1, 1978.
Source: SL 1978, ch 330, §§ 1, 3; SDCL Supp, § 46-16-16.1; SL 2011, ch 165, § 471.
46A-9-18. Board of directors--Qualification upon filing certificate of organization--Vacancy created by failure to qualify--First meeting.
Immediately upon the filing of said certificate in the Office of the Secretary of State and a certified copy thereof in the office of each such county auditor, the members of the board of directors named in the petition shall qualify as provided for in this chapter and immediately assume the duties of their office. Failure or refusal to qualify within a period of fifteen days thereafter shall be deemed to create a vacancy which shall be filled as in this chapter provided. The first meeting of the board of directors shall be called by the director first named in the petition who qualifies.
Source: SL 1939, ch 291, § 4; SL 1943, ch 310; SDC Supp 1960, § 61.1304 (1); SDCL, § 46-16-17.
46A-9-19. Additional territory, inclusion in district.
The procedure for extending a water user district by including additional territory shall be as provided by §§ 46A-9-20 to 46A-9-23, inclusive.
Source: SL 1943, ch 310; SDC Supp 1960, § 61.1304 (2); SDCL, § 46-16-18.
46A-9-20. Extension of district--Petition to include additional territory--Contents--Filing.
A water user district may be extended by including additional territory by filing in the Department of Agriculture and Natural Resources a petition in writing, verified by the circulator of the petition, addressed to the department, signed by at least twenty-five percent of the landowners or entrymen in any area to be included, and bearing the approval by resolution, of a majority of the board of directors of the water user district, upon compliance with the requirements set forth in this chapter. The petition shall contain a description of the lands to be included.
Source: SL 1943, ch 310; SDC Supp 1960, § 61.1304 (2); SDCL § 46-16-19; SL 2011, ch 165, § 472; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-9-21. Petition for expansion of district--Map showing location of lands to be included to accompany--Plans and estimates.
The petition shall be filed with the Department of Agriculture and Natural Resources, together with a list of the petitioners' names, mailing addresses, and lands owned or entered. The petition shall be accompanied by a map or maps showing the location of the lands to be included, the proposed system of works and by other maps, plans, and estimates as may be necessary to fully describe the proposed expansion.
Source: SL 1943, ch 310; SDC Supp 1960, § 61.1304 (2); SDCL, § 46-16-20; SL 1997, ch 255, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-9-22. Publication of notice for extension of district--Filing of protest.
A notice shall be published in each county in which the lands to be included lie, in a legal newspaper of general circulation in the county, once each week for at least two successive weeks. The last date of publication shall be at least thirty days prior to the Board of Water and Natural Resources' meeting at which the petition is first considered. The notice shall be published at the petitioners' expense. The notice shall contain the information required in § 46A-9-20, shall state when the petition was filed, shall state a public place in each county affected where the petition may be examined, and shall state the date, time, and place at which the petition will be considered by the Board of Water and Natural Resources. Any owner or entryman of land within the area to be included, who did not sign the petition may file a written protest with the department as provided in § 46A-9-14.
Source: SL 1943, ch 310; SDC Supp 1960, § 61.1304 (2); SDCL, § 46-16-21; SL 1972, ch 239, § 6; SL 1997, ch 255, § 5.
46A-9-23. Action by Board of Water and Natural Resources on petition for extension of district--Certificate of approval--Filing--Effect.
Upon receipt of the petition the Board of Water and Natural Resources shall act upon the petition in the same manner as required upon an original petition to create a water user district, as set forth in §§ 46A-9-12 to 46A-9-16, inclusive, and § 46A-9-18.
Upon the approval of the petition and project by the Board of Water and Natural Resources, and the issuance and filing of its certificate of approval in the Office of the Secretary of State and filing a copy of the certificate, certified by the secretary of state, in the office of the county auditor of each county in which any lands in which such water user district is located, the included areas constitute a part of the water user district.
Source: SL 1943, ch 310; SDC Supp 1960, § 61.1304 (2); SDCL § 46-16-22; SL 2011, ch 165, § 473.
46A-9-23.1. Exclusion of lands from district--Grounds--Procedure.
If the board of directors of a water user district finds that there are lands within the district not utilizing the services of the district and that it is not feasible or necessary to retain those lands within the district, the board shall adopt a resolution stating its findings and declaring its intention to exclude the lands. The board shall, within ten days following the adoption of the resolution, file it with the Board of Water and Natural Resources. Upon receipt of the resolution, the Board of Water and Natural Resources shall determine whether the resolution complies with the requirements to exclude the lands, and if so, shall establish a hearing date on the issue no later than ninety days from the date of the filing of the resolution. Following the hearing, the Board of Water and Natural Resources may approve or disapprove the action proposed by the resolution. Upon approval and filing by the district board of a certificate of approval in the Office of the Secretary of State, together with a copy of the resolution, and after filing by the district board of a copy certified by the secretary of state in the office of the county auditor of each county in which any lands to be excluded are located, the lands shall be excluded from the water user district.
Source: SL 1984, ch 296, § 2; SL 2006, ch 226, § 3.
46A-9-23.2. Notices of hearing on exclusion--Protests.
Following the setting of a hearing date by the Board of Water and Natural Resources under the provisions of § 46A-9-23.1, the board of directors of a water user district shall publish a copy of the resolution and a notice of the time and place when the resolution shall be considered by the board in each county in which lands to be excluded lie. The resolution and notice shall be published in a newspaper of general circulation in the county once each week for at least two successive weeks before the date of the hearing. If there is no newspaper of general circulation published in the county, copies of the resolution shall be posted in three of the most public places in the county at least two weeks before the time of the hearing. Any landowner, entryman, or resident upon the lands to be excluded under the resolution may file with the Board of Water and Natural Resources a written protest against the exclusion of all or a portion of the lands and may appear at the hearing to register his protest.
Source: SL 1984, ch 296, § 3.
46A-9-24. Members of board of directors succeeding original board--Nomination and election--Term of office.
After the qualification of the original board, members to succeed those in the three groups provided for in § 46A-9-8, respectively, and to fill unexpired terms, shall be nominated and elected and shall take office, subject to the provisions of this chapter. Prior to May first of each year, on dates established by the board, an election shall be held to elect directors to succeed those whose terms are about to expire. Newly elected directors shall assume office at the first board meeting following their election and shall continue for a period of three years thereafter and until a successor is duly elected and qualified. Election of directors shall be conducted as provided by §§ 46A-9-25 to 46A-9-29, inclusive.
Source: SL 1939, ch 291, § 5; SDC Supp 1960, § 61.1305 (1), (2); SDCL, § 46-16-23; SL 1997, ch 255, § 6.
46A-9-25. Hour and place of election.
The board of directors of the water user district shall fix the hour and place, within the boundaries of the district, of each election and shall preside at the election. If the district is divided into election divisions, the board of directors in its discretion may fix a place of election within each election division, in which case the directors who represent that division shall preside at the election.
Source: SL 1939, ch 291, § 5; SDC Supp 1960, § 61.1305 (2); SDCL § 46-16-24; SL 2011, ch 165, § 474.
46A-9-26. Election of directors--Voting rights.
Every owner of land and entryman within the district, and every person or corporation which is a party to a contract with the district for the purchase of water, for the collection, treatment, or disposal of wastewater, or other services to be furnished by the district, may cast one vote at each election for each director to be elected for whom the voter is entitled to vote. However, the vote which a voter is entitled to cast by reason of being a party to any such contract with the district is in addition to the vote to which the voter may be entitled by reason of being a landowner or entryman within the district. If election divisions are provided for, each person or corporation entitled to vote by reason of being a party to a contract, as provided in this section, shall select the division in which the person or corporation will vote. The selection shall be made under procedures established by resolution by the board of directors.
Source: SL 1939, ch 291, § 5; SDC Supp 1960, § 61.1305 (2); SDCL, § 46-16-25; SL 1993, ch 256, § 82; SL 2006, ch 226, § 4.
46A-9-27. Notice of election time, place, and purpose--Mailing or publication.
The board of directors, at least twenty days before the date of election, shall mail to each person or corporation entitled to vote at the election, at the person's or corporation's last known place of residence or business, a notice stating the time, place, and purpose of the election. Alternatively, the board may publish in each county in which lands within the district lie, in some newspaper of general circulation printed and published in the county, once each week for at least two successive weeks before the time of election, a notice that the election will be held and giving the purpose, time, and place.
Source: SL 1939, ch 291, § 5; SDC Supp 1960, § 61.1305 (2); SDCL § 46-16-26; SL 1975, ch 277, § 2; SL 2011, ch 165, § 475.
46A-9-28. Registration of voters--Conduct of election--Costs.
At the time and place of the election, the presiding directors shall provide for registration of those present and entitled to vote, shall determine the number of votes to which each is entitled and shall prescribe the manner of casting ballots and canvassing votes. If election divisions are provided for, but the election is held at one place within the district, the board of directors shall arrange for separate registration and conduction of the election for each division separately. All costs incident to the election of directors shall be borne by the district.
Source: SL 1939, ch 291, § 5; SDC Supp 1960, § 61.1305 (1), (2); SDCL, § 46-16-27; SL 1984, ch 296, § 1.
46A-9-29. Candidate to fill vacancy or succeed an outgoing director--Vote necessary for election.
The candidate for director required to fill an existing vacancy or to succeed an outgoing director who receives the highest number of votes cast for such office shall be declared elected.
Source: SL 1939, ch 291, § 5; SDC Supp 1960, § 61.1305 (2); SDCL, § 46-16-28.
46A-9-30. Director to be landowner or entryman.
No person is qualified to hold office as a member of the board of directors of any water user district unless the person is a landowner or entryman of the district.
Source: SL 1939, ch 291, § 6; SDC Supp 1960, § 61.1306; SDCL § 46-16-29; SL 2011, ch 165, § 476.
46A-9-31. Removal of members of board of directors from office--Grounds--Procedure.
Members of the board of directors may be removed from office for the same reasons and in the same manner as provided in §§ 3-17-6 to 3-17-11, inclusive, for the removal of county and other local officers.
Source: SL 1939, ch 291, § 5; SDC Supp 1960, § 61.1305 (1); SDCL, § 46-16-31.
46A-9-32. Vacancies on board of directors--Declaration of existence--Filling--Member elected to fill, term of office.
Vacancies on the board of directors by reason of death, disability, failure to hold land in the water user district, or in the election division if election divisions are provided for, or otherwise shall be declared to exist and shall be filled by the board of directors, and the members thus elected to fill vacancies shall serve until members to fill out the remainder of such terms respectively may be elected at the next succeeding district election.
Source: SL 1939, ch 291, § 5; SDC Supp 1960, § 61.1305 (1); SDCL, § 46-16-32.
46A-9-33. Reimbursement of expenses and compensation of board members.
Each water user district board of directors shall establish amounts to reimburse board members for expenses for lodging, meals, and mileage and to provide compensation for each day of actual service for traveling to, attending, and returning from meetings, hearings, or investigations of the water use district board. Such reimbursement and compensation shall be paid on vouchers duly verified and approved accordingly to procedures determined by the board.
Source: SL 1939, ch 291, § 6; SDC Supp 1960, § 61.1306; SDCL § 46-16-33; SL 1981, ch 318; SL 1987, ch 335; SL 2001, ch 243, § 1; SL 2011, ch 202, § 1.
46A-9-34. Officers--Election by board of directors--Appointment of executive committee and other employees.
The board of directors shall elect the officers of the water user district who shall be a president, a vice-president, a secretary, and a treasurer, and the board shall appoint such executive committee and other officers, agents, and employees as shall be deemed necessary in transacting the business of the district. The president, vice-president, and treasurer shall be elected from the membership of the board of directors.
Source: SL 1939, ch 291, § 6; SDC Supp 1960, § 61.1306; SDCL, § 46-16-34.
46A-9-35. Bond of treasurer.
The treasurer shall furnish and maintain a corporate surety bond in such amounts and with such sureties as the directors may specify and conditioned on faithful performance of the treasurer's duties. The bond, as thus approved, shall be filed with the secretary of state, and the premium upon the bond shall be paid by the district.
Source: SL 1939, ch 291, § 6; SDC Supp 1960, § 61.1306; SDCL § 46-16-35; SL 2011, ch 201, § 1.
46A-9-36. Corporate powers of district vested in board of directors.
The corporate powers of the water user district shall be vested in and exercised by the board of directors of the district.
Source: SL 1939, ch 291, § 6; SDC Supp 1960, § 61.1306; SDCL, § 46-16-36.
46A-9-37. Bylaws and procedures--Adoption by board of directors--Minutes of meetings--Records of account, kept at principal place of business, open to public inspection.
The board of directors may by resolution adopt bylaws and procedures, not inconsistent with the provisions of this chapter, for the conduct of the business and affairs of the water user district. The board of directors shall cause to be kept accurate minutes of its meetings and accurate records and books of account, conforming to approved methods of bookkeeping, clearly setting out and reflecting the entire operation, management, and business of the district. The books and records shall be kept at the principal place of business of the district and at reasonable business hours always open to public inspection.
Source: SL 1939, ch 291, § 6; SDC Supp 1960, § 61.1306; SDCL, § 46-16-37; SL 1993, ch 256, § 83.
46A-9-38. Indemnification of directors, officers, employees, or agents of districts.
A water user district may indemnify any person who was or is a party or is threatened to be made a party to any pending or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative by reason of the fact that the person is or was a director, officer, employee, or agent of the water user district or is or was serving at the request of the water user district as a director, officer, employee, or agent or another corporation, limited liability company, partner-joint venture, trust, or other enterprise, against expenses including attorneys' fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit, or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the water user district and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. However, this section does not apply to any action by or in the right of the water user district.
Source: SL 1979, ch 300; SDCL Supp, § 46-16-37.1; SL 1994, ch 351, § 114.
46A-9-39. Powers of district.
A water user district organized under the provisions of this chapter has the powers provided by §§ 46A-9-40, 46A-9-41, and §§ 46A-9-43 to 46A-9-45, inclusive, and may own, have, or exercise the rights, privileges, and franchises provided by those sections.
Source: SL 1939, ch 291, § 7; SDC Supp 1960, § 61.1307; SDCL § 46-16-38; SL 2011, ch 165, § 477.
46A-9-40. Powers of corporation for public purposes--Acquisition and disposition of property.
The water user district has all the usual powers of a corporation for public purposes. The district may acquire by purchase, gift, condemnation, or other lawful means and may hold any real or personal property reasonably necessary for the conduct of its business, or may lease such property for its proper purposes. The district may sell, lease, or otherwise dispose of such property if not needed by the district.
Source: SL 1939, ch 291, § 7; SDC Supp 1960, § 61.1307 (1); SDCL § 46-16-39; SL 2011, ch 165, § 478.
46A-9-41. Acquisition, management, use, and operation of works and property--Disposition of works.
The water user district may own, construct, reconstruct, improve, purchase, condemn, lease, receive by gift, or otherwise acquire, hold, extend, manage, use, or operate any works and any kind of property, personal or real, necessary, useful, or incident to such acquisition, extension, management, use, and operation. The district may sell, mortgage, alienate, or otherwise dispose of the works or any part of the works only under the terms and subject to the conditions provided in §§ 46A-9-69 to 46A-9-72, inclusive.
Source: SL 1939, ch 291, § 7; SDC Supp 1960, § 61.1307 (2); SDCL § 46-16-40; SL 2011, ch 165, § 479.
46A-9-42. Transfer of obligations of nonprofit rural water supplier or wastewater system operator to water user district, sanitary district, or municipality--Majority vote of district.
Any nonprofit corporation, cooperative, or association engaged in the treatment, distribution, or sale of water or the collection, treatment, or disposal of wastewater to a rural area may, by majority vote of the membership voting in an election on the question, transfer all of its assets, liabilities, contracts, and other obligations to a water user district as defined in § 46A-9-2, sanitary district authorized to operate a water system under § 34A-5-41, or a municipality. No such action may be taken unless approved by majority vote of the water user district or sanitary district membership voting in an election on the action.
Source: SL 1974, ch 285; SL 1977, ch 368; SL 1982, ch 312, § 2; SDCL Supp, § 46-16-40.1; SL 2006, ch 226, § 5.
46A-9-43. Contracts with governmental agencies authorized for certain purposes.
In connection with the powers provided by §§ 46A-9-40 and 46A-9-41, the water user district may enter into any contract, lease, agreement, or arrangement with any state, county, municipality, district, governmental or public corporation or association, or with any person, firm, or corporation, public or private, or with the government of the United States, or with any officer, department, bureau, or agency of the government of the United States, or with any corporation organized under federal law. The contract, lease, agreement, or arrangement may be for any of the following purposes:
(1) Exercising or using any one or more of the powers authorized in §§ 46A-9-40 and 46A-9-41;
(2) Selling, leasing, or otherwise furnishing or establishing water rights, water supply, conveyance and distribution of water, water service, or water storage;
(3) Irrigation or flood control;
(4) Domestic, industrial, municipal, or stock-watering purposes;
(5) Drainage of lands;
(6) Provision of services or systems for the collection, treatment, or disposal of wastewater;
(7) Provision of billing, collection, hookup, or termination services for entities that provide services for the collection, treatment, or distribution of water or wastewater;
(8) Financing or payment of the cost and expenses incident to the construction, acquisition, or operation of such works, or incident to any obligation or liability entered into or incurred by the district.
Source: SL 1939, ch 291, § 7; SDC Supp 1960, § 61.1307 (2); SDCL, § 46-16-41; SL 1992, ch 60, § 2; SL 2006, ch 226, § 6.
46A-9-44. Extraterritorial powers of district.
The district may exercise any of the powers enumerated in §§ 46A-9-41 and 46A-9-43 either within or beyond or partly within and partly beyond the boundaries of the district and of the State of South Dakota, unless prohibited by the law of the area or state concerned or of the United States of America.
Source: SL 1939, ch 291, § 7; SDC Supp 1960, § 61.1307 (3); SDCL § 46-16-42; SL 2011, ch 165, § 480.
46A-9-45. Appropriation of waters of state by district--Interference with existing water rights forbidden.
Such water user district shall have the right to appropriate the waters of the state in the same manner as other appropriators under the laws of this state; provided, that such district shall not, in the exercise of the powers conferred by this chapter, interfere with, injure, or otherwise damage or affect existing water rights, other than through the purchase of such rights or through condemnation proceedings as provided in this chapter; and provided, further, that no irrigation district, corporation, association, or individual holding a water right for lands located either within or outside the boundaries of a water user district shall be in any way affected by the operations of such district other than by reason of a contract voluntarily entered into by such organization or individual with such district, or by reason of the exercise by such district of the power of eminent domain as provided in this chapter.
Source: SL 1939, ch 291, § 7; SDC Supp 1960, § 61.1307 (4); SDCL, § 46-16-43.
46A-9-46. Eminent domain--Appraisement of private property or interest.
In addition to any other rights and powers conferred upon any water user district organized under the provisions of this chapter, the district may exercise the power of eminent domain for the purposes and after the manner provided for in chapter 21-35, after declaring by resolution the necessity for and purpose of the taking of property and the extent of the taking. If any such district condemns private property or interests in the private property, the appraisement shall include the amount of damage that will accrue to the owner of the condemned property through severance of the condemned property from other property of the owner, previously operated with the condemned property, as a unit.
Source: SL 1939, ch 291, § 8; SDC Supp 1960, § 61.1308; SDCL § 46-16-44; SL 2011, ch 165, § 481.
46A-9-46.1. Municipal approval of location of wastewater plant or system--Exception for existing plant or system.
No portion of any plant or system that is operated by a water user district for the collection, treatment, or disposal of wastewater, including sanitary sewers and sewage and sewage treatment plants and systems, may be located within a zone that extends ten miles outward from the corporate limits of any municipality without the approval of the municipality. However, if the ten-mile zones of more than one municipality overlap, the jurisdiction of each municipality over any such plant or system terminates at a boundary line equidistant from the respective corporate limits of the municipalities; and the water user district shall obtain the approval of each municipality that would have jurisdiction over any portion of the plant or system to be operated by the water user district. The restrictions provided in this section do not apply to any portion of any such plant or system if the portion was in existence on July 1, 2006 or if the portion predates any expansion by a municipality that would otherwise cause the plant or system to be in violation of this section.
Source: SL 2006, ch 226, § 7.
46A-9-47. District has no power to tax or levy assessments--Others have no liability for district indebtedness or obligations.
The district has no power of taxation, or of levying assessments for special benefits. No governmental authority may levy or collect taxes or assessments for the purpose of paying, in whole or in part, any indebtedness or obligation of or incurred by the district as such or upon which the district may be or become in any manner liable. No privately owned property within or outside the district, nor the owner of the property, and no municipality, county, irrigation district, or other political subdivision or public or private corporation or association or its property, is directly or indirectly liable for any such district indebtedness or obligation beyond the liability to perform any express contract, if any, between the owner or public or private organization and the district.
Source: SL 1939, ch 291, § 9; SDC Supp 1960, § 61.1309; SDCL § 46-16-45; SL 1992, ch 60, § 2; SL 2011, ch 165, § 482.
46A-9-48. Costs of operation of district--Contract for payment of rent or charge for water storage or water supply.
No person, irrigation district, municipality, county, or other governmental subdivision, irrigation company, or other public or private corporation or association is liable for the payment of any rent or charge for water storage; water supply; for the collection, treatment, or disposal of wastewater; or for any of the costs of operation of a water user district, unless a contract for such services has been entered into between the person or public or private organization and the water user district furnishing the services.
Source: SL 1939, ch 291, § 9; SDC Supp 1960, § 61.1309; SDCL, § 46-16-46; SL 1992, ch 60, § 2; SL 2006, ch 226, § 8.
46A-9-49. Grants or loans--Gifts.
Any water user district organized under this chapter may exercise any power conferred by this chapter for the purpose of obtaining grants or loans or both from any federal agency pursuant to or by virtue of any acts of Congress independently or in conjunction with any other power or powers conferred by this chapter, or heretofore or hereafter conferred by any other law. The district may accept from private owners or other sources, gifts, deeds, or instruments of trust or title relating to land, water rights, and any other form of property.
Source: SL 1939, ch 291, § 11; SDC Supp 1960, § 61.1311; SDCL § 46-16-47; SL 2011, ch 165, § 483.
46A-9-50. Cooperation with United States in acquisition and disposition of property.
The water user district may purchase and acquire lands, water rights, rights-of-way, and real and personal properties of every nature in cooperation with the United States under such conditions as the board deems advisable. The district may convey such rights and property under conditions, terms, and restrictions approved by the board of directors and the federal government or any of its agencies. The district may pay the purchase price and any construction costs or other necessary expenses and costs in connection with any works contemplated by this chapter either from its own funds or cooperatively with the federal government.
Source: SL 1939, ch 291, § 12; SDC Supp 1960, § 61.1312; SDCL § 46-16-48; SL 2011, ch 165, § 484.
46A-9-51. Eminent domain laws applicable to irrigation districts apply.
All provisions of law now applicable to irrigation districts, privately owned irrigation corporations, or ditch companies, regarding the exercise of the power of eminent domain, the use and occupation of state and other public lands and highways, the appropriation, or other acquisition, enjoyment, or use of water, water rights, or water diversion or storage rights, for any of the purposes contemplated in this chapter, the manner or method of construction and physical operation of irrigation works, storage dams, drainage ditches, as herein contemplated, shall be applicable as nearly as may be, and so far as not in conflict with the provisions of this chapter, to water user districts organized under this chapter in their exercise of the rights, powers, and franchises and in the performance of the duties conferred or imposed upon them under the provisions of this chapter.
Source: SL 1939, ch 291, § 8; SDC Supp 1960, § 61.1308; SDCL, § 46-16-49.
46A-9-52. Contracts governed by public agency procurement law.
Any water user district contract for the construction, alteration, extension, or improvement of any works, or any part or section thereof, or any building, for the use of the district, or for the purchase of any materials, machinery, or apparatus therefor is governed by chapters 5-18A and 5-18B.
Source: SL 1939, ch 291, § 13; SDC Supp 1960, § 61.1313; SDCL § 46-16-50; SL 1972, ch 32, § 5; SL 1991, ch 373; SL 2011, ch 2, § 148.
46A-9-53. Filing of plans and specifications--Advertisement for bids.
Before publication of any advertisement pursuant to chapter 5-18A, plans and specifications for the proposed construction work or materials shall be prepared and filed at the principal office or place of business of the water user district. The advertisement shall be published as required by § 5-18A-14 and, in the discretion of the board of directors of the district, may be published in such additional newspapers or trade or technical periodicals as may be selected by the board in order to give proper notice of the receiving of bids. The advertisement shall designate the nature of construction work proposed to be done or materials proposed to be purchased.
Source: SL 1939, ch 291, § 13; SDC Supp 1960, § 61.1313; SDCL § 46-16-51; SL 1972, ch 34, § 6; SL 2006, ch 226, § 9; SL 2011, ch 2, § 149.
46A-9-54. Contracts for proposed construction work--Employment of citizens of state--Bond of contractor.
Such contract shall provide that wherever possible, workmen who are citizens of South Dakota shall be employed by the contractor. All provisions of chapter 5-21 with reference to contractors' bonds required under such statutes, shall be applicable and effective as to any contract let pursuant to the provisions of this chapter.
Source: SL 1939, ch 291, § 13; SDC Supp 1960, § 61.1313; SDCL, § 46-16-52; SL 1979, ch 18, § 5.
46A-9-55. Certain proposed works exempt from competitive bidding requirements.
If all or a portion of the cost of the proposed works is to be met by grant of labor or a grant-in-aid from a federal or state agency, does not require the use of any state or federal funds in the proposed works, or under other contract with a federal or state agency, and the rules of such agency provide that work may not be done by contract, the board of directors may proceed with the necessary construction or other work without first complying with any of the provisions of §§ 46A-9-52 to 46A-9-54, inclusive.
Source: SL 1939, ch 291, § 13; SDC Supp 1960, § 61.1313; SDCL § 46-16-53; SL 1993, ch 256, § 84; SL 2012, ch 219, § 1.
46A-9-56. Borrowing power of district--Sources from which obligations payable--Authorization, issuance, and sale of bonds.
Any district organized pursuant to this chapter may borrow money and incur indebtedness for any corporate use or purpose authorized in this chapter and to the extent applicable pursuant to chapter 9-40, provided the indebtedness, liability, or obligation of the district for the payment of money in any manner, and whether arising from contract, implied contract, or otherwise, is payable solely:
(1) From revenues, income, receipts, and profits derived by the district from its operation and management of systems and irrigation works as provided in this chapter or in chapter 9-40; or
(2) From the issuance or sale by the district of its warrants, notes, revenue bonds, debentures, or other evidences of indebtedness, (hereinafter referred to in this section as "district obligations") payable solely from such revenues, income, receipts, and profits. All bonds shall be authorized, issued, and sold as provided in chapter 6-8B and to the extent applicable under chapter 9-40. However, no bond election is required.
Source: SL 1939, ch 291, § 10; SDC Supp 1960, § 61.1310; SDCL, § 46-16-54; SL 1978, ch 330, § 2; SL 1984, ch 43, § 124; SL 1985, ch 361; SL 2022, ch 166, § 1.
46A-9-57. District obligations--Pledge of revenue for payment--Collateral security for loan.
Any such water user district may pledge and put up as collateral security for a loan any district obligations. Any district issuing district obligations under the provisions of this chapter may pledge all or any part of the revenues which the district may derive from the sale, conveyance, or distribution of water for irrigation, domestic, municipal, industrial, or stock-watering purposes; from the storage of water; or from the collection, treatment, or disposal of wastewater, as security for the payment of the principal and interest on the loan. Any such pledge of revenues shall be made by the directors of the district by resolution or by agreement with the purchasers or holders of the district obligations. Any such resolution or agreement may specify the particular revenues that are pledged and the terms and conditions to be performed by the district and the rights of the holders of the district obligations, and may provide for priorities of liens in any such revenues as between the holders of district obligations issued at different times or under different resolutions or agreements.
Source: SL 1939, ch 291, § 10; SDC Supp 1960, § 61.1310; SDCL, § 46-16-55; SL 2006, ch 226, § 10.
46A-9-58. Refunding of district obligations.
Such resolution or agreement may further provide for the refunding of any such water user district obligation through the issuance of other district obligations, entitled to rights and priorities similar in all respects to those held by the district obligations that are refunded and for the issuance of such refunding district obligations, either in exchange for district obligations then outstanding, or the sale thereof and the application of the proceeds of such sale to the retirement of the district obligations then outstanding.
Source: SL 1939, ch 291, § 10; SDC Supp 1960, § 61.1310; SDCL, § 46-16-56.
46A-9-59. Revenues of district--Payment into special fund--Collection and disposition of special fund, terms, and conditions.
Any such resolution or agreement may provide that all or any part of the revenues of the water user district shall be paid into a special fund and may set forth all the terms and conditions on which such special fund is to be collected, held, and disposed of, whether partly or wholly for the benefit of the holders of such district obligations. Provision may be made that such special fund shall be held by depositories designated or described in such resolution or agreement.
Source: SL 1939, ch 291, § 10; SDC Supp 1960, § 61.1310; SDCL, § 46-16-57.
46A-9-60. Agreement between directors and holders of district obligations as to charges for water, sewage disposal, or other services.
The directors of any water user district organized under the provisions of this chapter may enter into agreements with the holders of any such district obligations as to the maximum or minimum amounts that the district may charge and collect for water sold by the district or for the collection, treatment, or disposal of wastewater or other services provided by the district.
Source: SL 1939, ch 291, § 10; SDC Supp 1960, § 61.1310; SDCL, § 46-16-58; SL 2006, ch 226, § 11.
46A-9-61. Prices, rates, and charges--Contracts.
The board of directors, subject to the provisions of this chapter, may fix and establish the prices, rates, and charges at which any resources and facilities made available under the provisions of this chapter shall be sold and disposed of. The board may enter into any contracts and agreements, and do anything that in its judgment is necessary, convenient, or expedient for the accomplishment of any of the purposes and objects of this chapter, under such general regulations and upon such terms, limitations, and conditions as it shall prescribe. The board shall enter into contracts and fix and establish prices, rates, and charges to provide at all times funds sufficient to pay all costs of operation and maintenance of any of the works authorized by this chapter, together with necessary repairs to such works, and which will provide at all times sufficient funds to meet and pay the principal and interest of all bonds, warrants, notes, debentures, and other evidences of indebtedness as they severally become due and payable. However, nothing contained in this chapter authorizes any change, alteration, or revision of any such rates, prices, or charges as established by any contract entered into under authority of this chapter except as provided by the contract.
Source: SL 1939, ch 291, § 16; SDC Supp 1960, § 61.1316 (3); SDCL § 46-16-59; SL 2011, ch 165, § 485.
46A-9-62. Default in payment of money specified in agreement--Termination of contract--Right to recovery not affected by discontinuation of services.
Every contract made by the board of directors for the sale, conveyance, and distribution of water, use of water, water storage, or for the collection, treatment, or disposal of wastewater, or other service, or for the sale of any property or facilities, shall provide that in the event of any failure or default in the payment of any moneys specified in the contract to be paid to the board, the board may, upon such notice as prescribed in the contract, terminate the contract and all obligations under the contract. The act of the board in ceasing on any such default to furnish or deliver water, use of water, or water storage, or other services under the contract does not deprive the board of, or limit any remedy provided by the contract or by law for the recovery of any moneys due or which may become due under the contract.
Source: SL 1939, ch 291, § 16; SDC Supp 1960, § 61.1316 (3); SDCL, § 46-16-60; SL 2006, ch 226, § 12.
46A-9-63. Funds of district--Creation by board of directors--Identification--Separate accounts.
The board of directors shall create separate funds, one fund to be known as the construction fund, another fund to be known as the water fund, another fund to be known as the debt service fund, and, if the district provides services for the collection, treatment, or disposal of wastewater, a fund to be known as the wastewater fund. Each such fund shall be identified by the same series letter or letters as the bonds, warrants, notes, debentures, or other evidences of indebtedness of the series. A separate account shall be kept for each construction fund, each water fund, each wastewater fund, and each debt service fund for each project.
Source: SL 1939, ch 291, § 16; SDC Supp 1960, § 61.1316 (1); SDCL, § 46-16-61; SL 2006, ch 226, § 13.
46A-9-64. Construction fund--Deposit of bond proceeds--Credit of interest received upon deposits--Disbursements--Balance transferred to debt service fund.
The proceeds of the sale of the bonds and other evidences of indebtedness of each series issued under the provisions of this chapter shall be placed to the credit of the appropriate construction fund, which fund shall at all times be kept segregated and set apart from all other funds. There shall also be credited to the appropriate construction fund the interest received upon the deposits of moneys in such fund and moneys received by way of gift or grant from the United States or from any other source for the construction of the works. The moneys in each construction fund shall be paid out or disbursed in such manner as may be determined by the board of directors, subject to the provisions of this chapter, to pay the cost of the works as defined in § 46A-9-2. Any surplus which may remain in any construction fund after providing for the payment of the cost of the works shall be added to and become a part of the appropriate debt service fund provided for in § 46A-9-66.
Source: SL 1939, ch 291, § 16; SDC Supp 1960, § 61.1316 (2); SDCL, § 46-16-62.
46A-9-65. Water or wastewater fund--Credit of revenue of works and operations--Payment of operation and maintenance costs.
All income or profit and revenue of the works and all moneys received from the sale, conveyance, distribution, or disposal of water, use of water, or water storage; from the collection, treatment, or disposal of wastewater; and from the operation, lease sale, or other disposition of the works, property, and facilities acquired under the provisions of this chapter, shall be paid to the credit of the appropriate water or wastewater fund. All costs of operation, maintenance, and repairs of the works, and all administrative and clerical expenses of the water user district, shall be paid from the appropriate water or wastewater fund.
Source: SL 1939, ch 291, § 16; SDC Supp 1960, § 61.1316 (3); SDCL, § 46-16-63; SL 2006, ch 226, § 14.
46A-9-66. Debt service fund--Transfer of balance from water fund--Moneys pledged for payment of evidences of indebtedness.
The board of directors shall provide in the proceedings authorizing the issuance of each series of bonds, warrants, notes, debentures, or other evidences of indebtedness or in the trust indenture securing the same, for paying into the appropriate debt service fund at stated intervals all moneys then remaining in the water fund, after paying all costs of operation, maintenance, and repairs of the works and all administrative and clerical expenses of the water user district. All moneys in each debt service fund shall be pledged for the payment of and used for the purpose of paying the interest, principal, and the necessary fiscal agency charges upon the bonds, warrants, notes, debentures, or other evidences of indebtedness as the same shall fall due.
Source: SL 1939, ch 291, § 16; SDC Supp 1960, § 61.1316 (4); SDCL, § 46-16-64.
46A-9-67. Deposit of funds--Payment of claims.
All moneys collected pursuant to this chapter shall be deposited with the water user district treasurer in any depository designated and approved by the board of directors of the water user district at a regular meeting and from which all valid claims against the district shall be paid or by order duly drawn by the district treasurer pursuant to procedures adopted by the board of directors.
Source: SL 1939, ch 291, § 14; SDC Supp 1960, § 61.1314; SDCL § 46-16-65; SL 2011, ch 203, § 1.
46A-9-68. Fiscal year--Audit of financial affairs by board of directors, filing of written report.
The fiscal year of the water user district shall coincide with the calendar year. The board of directors, at the close of each year's business, shall cause an audit of the books, records, and financial affairs of the district to be made by an experienced public accountant, copies of a written report of which audit, certified to by said auditors, shall be placed and kept on file at the principal place of business of the district and shall be filed with the secretary of state.
Source: SL 1939, ch 291, § 6; SDC Supp 1960, § 61.1306; SDCL, § 46-16-66.
46A-9-69. Disposition of water supply works, drainage works, or wastewater systems.
No irrigation or other water supply works, drainage works, or systems or facilities for the collection, treatment, or disposal of wastewater owned by the district may be sold, alienated, or mortgaged by the district, except under the circumstances described by §§ 46A-9-70 to 46A-9-72, inclusive.
Source: SL 1939, ch 291, § 15; SDC Supp 1960, § 61.1315; SDCL, § 46-16-67; SL 2006, ch 226, § 15.
46A-9-70. Sale of unneeded works--Submission of question to Board of Water and Natural Resources--Special election--Notice--Majority vote authorizes sale.
If, in the judgment of the board of directors, it is in the best interest of the water user district to sell any portion of the district works not needed for the performance of any outstanding contract, and not mortgaged or hypothecated as provided for in § 46A-9-71, the board of directors shall pass a resolution to that effect and shall submit the question to the Board of Water and Natural Resources for approval. If the Board of Water and Natural Resources approves, the board of directors shall call a special election at which the question of selling the portion of the works shall be submitted to the voters of the district qualified to vote for district directors. The board of directors shall mail to each qualified voter, at the voter's last known place of residence or place of business, a notice stating the time, place, and purpose of the election, and so far as practicable shall conduct the election in all other respects as provided in §§ 46A-9-25 to 46A-9-28, inclusive. If a majority of all qualified voters of the district vote "yes" at the election, the board of directors s may sell the portion of the works.
Source: SL 1939, ch 291, § 15; SDC Supp 1960, § 61.1315 (1); SDCL § 46-16-68; SL 2011, ch 165, § 486.
46A-9-71. Mortgage or hypothecation of property to secure payment of loans from governmental agencies.
If, in order to borrow money from the federal government or from any of its agencies, or from the State of South Dakota or from any other public or private provider of financing, it becomes necessary that the water user district mortgage or otherwise hypothecate any of its property or assets to secure the payment of a loan made to it by or from such a source, the district may mortgage or hypothecate the property and assets for these purposes. Nothing in this section prevents the district from assigning, pledging, or otherwise hypothecating its revenues, incomes, receipts, or profits to secure the payment of indebtedness to the federal government or any federal agency, the State of South Dakota, or any other public or private provider of financing. However, the State of South Dakota may never pledge its credit or funds, or any part of its credit or funds, for the payment or settlement of any indebtedness or obligation whatsoever of any district created under the provisions of this chapter. Nothing in this chapter authorizes any agency of the State of South Dakota to make loans to any such district, unless the agency is otherwise authorized by law to make such loans.
Source: SL 1939, ch 291, § 15; SDC Supp 1960, § 61.1315 (2); SDCL § 46-16-69; SL 2011, ch 165, § 487; SL 2022, ch 166, § 2.
46A-9-72. Mortgage or trust deed to secure payment of borrowed money--Foreclosure upon default and appointment of receiver.
If any water user district created under this chapter shall execute and deliver a mortgage or trust deed to secure the payment of any moneys borrowed by it for the purposes herein authorized, it may be provided in such mortgage or trust deed that the same may be foreclosed upon default and that a receiver may be appointed by any court of competent jurisdiction with such authority as may be provided for in such mortgage or trust deed.
Source: SL 1939, ch 291, § 15; SDC Supp 1960, § 61.1315 (2); SDCL, § 46-16-70.
46A-9-73. Dissolution of district--Special election--Notice--Conditions for dissolution.
Any water user district organized under this chapter may be dissolved by authorization of a majority vote of the voters, qualified to vote for district directors, at a special election called by the board of directors for that purpose. Notice of the election shall be mailed to each qualified voter at least twenty days before the date of the election. The procedure for the election shall conform as nearly as may be to the procedure provided in §§ 46A-9-25 to 46A-9-28, inclusive, for the election of directors. However, the district may not at the time of dissolution own property or rights or have outstanding any contract or contracts or obligations of any kind.
Source: SL 1939, ch 291, § 19; SDC Supp 1960, § 61.1318; SDCL § 46-16-71; SL 2011, ch 165, § 488.
46A-9-74. Dissolution complete upon resolution of board canvassing vote--Filing.
Dissolution of the water user district shall be completed upon resolution of the board of directors canvassing the vote and declaring that a majority of the qualified voters voting on the question have voted in favor of dissolution. A verified copy of the resolution shall be filed in the office of the Department of Agriculture and Natural Resources and in the office of the county auditor of each county in which any portion of the district lies.
Source: SL 1939, ch 291, § 19; SDC Supp 1960, § 61.1318; SDCL § 46-16-72; SL 2011, ch 165, § 489; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-9-75. Cancellation of applications for appropriation of water upon dissolution.
In case of such dissolution, the Department of Agriculture and Natural Resources shall cancel all applications for appropriation of water, and all rights of the water user district therein and thereunder shall thereupon cease and determine.
Source: SL 1939, ch 291, § 19; SDC Supp 1960, § 61.1318; SDCL § 46-16-73; SL 2011, ch 165, § 490; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-9-76. Municipalities excepted from chapter--Contracts with district.
Nothing in this chapter deprives any municipality within the State of South Dakota, located either wholly or partially within or outside any water user district, of the exercise of any rights with which it may be invested by law to construct, acquire, operate, maintain, or dispose of waterworks, or systems or facilities for the collection, treatment, or disposal of wastewater, or to perform any other of its lawful functions. However, any municipality may enter into any contract with any such district for the storage, purchase, or distribution of water or for the collection, treatment or disposal of wastewater, for municipal, domestic, or industrial purposes.
Source: SL 1939, ch 291, § 20; SDC Supp 1960, § 61.1319; SDCL, § 46-16-74; SL 1992, ch 60, § 2; SL 2006, ch 226, § 16.
46A-9-77. Irrigation districts--Powers and functions unaffected by chapter.
Nothing in this chapter repeals, limits, or in any way affects the provisions of chapters 46A-4 to 46A-7, inclusive, relating to the organization and operation of irrigation districts. Nothing in this chapter limits in any way the powers and functions of irrigation districts organized under chapters 46A-4 to 46A-7, inclusive, and nothing in this chapter repeals, limits, or affects the provisions of any other laws of the State of South Dakota other than as specifically provided in this chapter.
Source: SL 1939, ch 291, § 17; SDC Supp 1960, § 61.1317; SDCL § 46-16-75; SL 2011, ch 165, § 491.
46A-9-78. Retirement system--Participation.
A water user district organized under this chapter which is not a participating unit of the South Dakota Retirement System on January 1, 1983, may elect to participate in the retirement system sponsored by the South Dakota Association of Rural Water Systems.
Source: SL 1983, ch 320; SDCL Supp, § 46-16-76.
46A-9-79. Appointment of water master.
The board of directors of any water user district may annually appoint a water master for the district subject to approval by the Water Management Board. Once approved, the board of directors may contract with the water master with regard to the terms and conditions of his employment. The district is bound by the provisions of the contract and shall pay the water master directly.
Source: SL 1990, ch 363, § 1.
46A-9-80. Duties of water master.
The water master shall:
(1) Enforce procedures for distribution of water by court decree;
(2) Enforce priorities and rights pertaining to the use of water as established by statute or case law;
(3) Administer the distribution of water obtained through any contract pursuant to § 46A-9-43;
(4) Provide for the regulation and security of headgates and measuring devices as necessary to enforce the proper distribution of water; and
(5) Perform such other duties as the board of directors may specify.
Source: SL 1990, ch 363, § 2.
46A-9-81. Removal of water master.
The board of directors may remove the water master for cause. The Water Management Board may withdraw approval of a water master and request the board of directors to remove any water master for cause.
Source: SL 1990, ch 363, § 3.
46A-9-82. Grievance appeal.
Any person aggrieved by any act or omission of any water master may appeal to the board of directors of the water user district, to the Water Management Board or to the circuit court in the county wherein the dispute arose.
Source: SL 1990, ch 363, § 4.
46A-9-83. Water Management Board not affected.
The provisions of this chapter do not abrogate or limit the rights, powers, duties, and functions of the State Water Management Board, but are supplementary thereto.
Source: SL 1990, ch 363, § 5.
46A-9-84. Group insurance for members of board of directors.
A water user district may enroll in any authorized group health insurance plan, group dental insurance plan, or both, for the members of the board of directors of the district. The plan may provide for group health and dental insurance against the financial cost of hospital, surgical, and medical treatment and care, and such other coverage benefits, including a group life insurance plan and a group disability income insurance plan, as may be deemed appropriate and desirable by the district.
Source: SL 2009, ch 228, § 1.
46A-9-85. Director or employee benefit from contract authorized.
The board may authorize a director, or an employee of the water user district whose responsibilities include approving, awarding, or administering a contract on behalf of the district, to be a party to a contract or derive a direct benefit from a contract with the district, if:
(1) The person provides a written disclosure of the person's interest to the board;
(2) The board reviews the terms of the contract and the person's obligations and benefits under the contract;
(3) The board determines that the contract is fair and reasonable to the district and not contrary to the public interest; and
(4) The board adopts a resolution of approval that is in written form and retained as a public record.
Source: SL 2023, ch 152, § 1.
46A-9-86. Director or employee benefit from contract authorized--Direct benefit described.
For purposes of § 46A-9-85, a direct benefit from a contract is derived if the director or employee, the spouse of the director or employee, or any other person with whom the director or employee lives and commingles assets:
(1) Has more than a five percent ownership interest in an entity that is a party to the contract;
(2) Derives income, compensation, or commission directly from the contract or from an entity that is a party to the contract;
(3) Acquires real or personal property under the contract; or
(4) Serves as a director on the board of a for-profit entity that:
(a) Derives income or a commission from the contract; or
(b) Acquires real or personal property under the contract.
A direct benefit is not derived solely from the value associated with any investment or holdings by a director or employee, the spouse of the director or employee, or any other person with whom the director or employee lives and commingles assets.
Source: SL 2023, ch 152, § 2.
CHAPTER 46A-10A
COUNTY DRAINAGE
46A-10A-1 Definitions.
46A-10A-2 County drainage commission--Appointment--Filling vacancies--Majority required to act--Ex officio members.
46A-10A-3 Term and removal of members.
46A-10A-4 Meetings.
46A-10A-5 Compensation of members.
46A-10A-6 Employment of personnel.
46A-10A-7 Assistance by units of state government--Expense reimbursement.
46A-10A-7.1 Maintenance of correspondence file--Correspondence marked with date of receipt--Term of retention.
46A-10A-8 State Water Management Board, districts, and existing water rights unaffected--Effect on drainage districts.
46A-10A-9 Joint drainage efforts by counties.
46A-10A-9.1 Petition for assistance in development of intercounty drainage plan--Board defined.
46A-10A-9.2 Meeting to develop mutually acceptable joint county drainage activities.
46A-10A-9.3 Recommendation, notice, and hearing before Water Management Board--Cost of publication--Implementation.
46A-10A-9.4 Limitation on effectiveness of action required by Water Management Board.
46A-10A-9.5 Action required by board to be included in county drainage plan--Not subject to referendum procedure.
46A-10A-10 Joint powers agreements by local units of government as to drainage.
46A-10A-11 Agreements for receipt of federal or state funds for drainage.
46A-10A-12 Municipality contracting with county for services--Fees.
46A-10A-13 Joint county-municipal drainage activities.
46A-10A-14 Board to provide funds, equipment, and accommodations for county drainage activity.
46A-10A-15 Adoption of emergency drainage measures--Hearing--Notice--Limited term--Renewal.
46A-10A-16 County drainage plan--Preparation--Adjuncts--Considerations.
46A-10A-17 Purposes of drainage plan.
46A-10A-18 Drainage projects and coordinated drainage areas authorized.
46A-10A-19 Maps authorized.
46A-10A-20 Legal controls for drainage management--Right to continue existing drainage.
46A-10A-21 Official controls not limited.
46A-10A-22 Publication of notice of hearing on proposed drainage plan.
46A-10A-23 Board action on plan by ordinance or resolution.
46A-10A-24 Filing and publication of board action on plan--Effective date of plan--Public inspection.
46A-10A-25 Petition for election on adoption of plan--Notice of election--Ballots--Suspension of effective date--Inconsistent drainage efforts prohibited.
46A-10A-26 Rejection of plan by voters--Revision, filing, and publication.
46A-10A-27 Filing copy of adopted official control.
46A-10A-28 Approval required for rehabilitation or construction of drain covered by plan--Board review of commission decision.
46A-10A-29 Failure of commission to act as approval--Extension of period by board.
46A-10A-30 Permit system for drainage--Fee--Modification of drain or use of unrecorded right--Drainage without permit as misdemeanor--Civil penalty.
46A-10A-31 Recording existing drainage rights--Information required--Disputing rights--Appeals--Recording final decision.
46A-10A-31.1 Notice of recording requirements.
46A-10A-31.2 Local governments exempt from recording requirements.
46A-10A-32 Copy of recorded vested right to department.
46A-10A-33 Enforcement of chapter and official controls.
46A-10A-34 Adjudication functions of commission or board.
46A-10A-34.1 Board of adjudication by mutual agreement--Jurisdiction.
46A-10A-35 Appeals from commission and board--Time allowed--Commencing action in circuit court.
46A-10A-36 Regulation and elimination of nonconforming drains.
46A-10A-37 Amendment and repeal of drainage plan--Request by petition.
46A-10A-38 Petition by landowner for change of drainage restrictions--Notice to directly affected persons.
46A-10A-39 Hearing on petition--Commission recommendation to board.
46A-10A-40 Affected person's right to be heard--Resolution adopting or rejecting proposal--Review, publication, and effective date of adoption--Election.
46A-10A-41 Drainage plan or official controls for municipality--Approval or contract by municipality required for effectiveness.
46A-10A-42 Jurisdiction of incorporated municipality.
46A-10A-43 Drainage district continuation and dissolution--County plan to include districts, vested rights and plans or projects of local government units and coordinated drainage areas.
46A-10A-43.1 Petition for future maintenance of drain jointly and voluntarily maintained by landowners within ten years of July 1, 1985.
46A-10A-43.2 Signing of petition--Contents.
46A-10A-43.3 Presentation of petition--Filing--Transmittal to Department of Agriculture and Natural Resources--Hearing.
46A-10A-43.4 Opportunity to appear at hearing--When granted--Resolution by board as to maintenance of drain.
46A-10A-44 Recommendation that state's attorney seek injunction or other court action to prevent or abate violation.
46A-10A-45 Mandamus proceedings authorized.
46A-10A-46 Control of drainage construction, rehabilitation, or methods--Approval of board.
46A-10A-47 Coordinated drainage area--Application for establishment--Inconsistency with county plan or controls barring formation--Validity of information in county in process of adopting plan or controls.
46A-10A-48 Survey and map of proposed coordinated drainage area required--Availability for examination.
46A-10A-49 Form, verification, signatures, filing, and presentation of application for establishment of area.
46A-10A-50 Order establishing area subject to voters' approval--Notice of election--Exemption from election requirement.
46A-10A-51 Publication of election notice.
46A-10A-52 Hours polls open--Costs of election.
46A-10A-53 Establishment of area effective on voters' approval--Waiting period after rejection by voters.
46A-10A-54 Appointment and duties of election officers--Order declaring area established--Conclusiveness of order.
46A-10A-55 Expenditure of county funds for application for coordinated drainage area--Assessment of costs from benefiting landowners.
46A-10A-56 Public lands subject to drainage laws--Service of notices--Appearance by board or officer in charge.
46A-10A-57 Responsibilities for drainage projects.
46A-10A-58 Signatures required for board action on drainage project petition.
46A-10A-59 Contents of drainage project petition.
46A-10A-60 Presentation and filing of petition--Time for board action--Copy to department.
46A-10A-61 Survey and report contracted by board--Contents--Right of entry--Copy to department.
46A-10A-62 Survey report to be written--Inspection--Scheduling hearing--Notice requirements.
46A-10A-63 Appearances at hearing--Establishment of project--Variation from report--Adjournment of hearing--Notices.
46A-10A-64 Assistance by department--Reimbursement of expenses.
46A-10A-65 Denial of petition or establishment of project--Findings required.
46A-10A-66 Assessments authorized--Expenses paid.
46A-10A-67 Acquisition of easements.
46A-10A-68 Damages due to project--Determination--Hearing--Appeal.
46A-10A-69 Naming project--Record of proceedings.
46A-10A-70 Permissible drainage of land.
46A-10A-71 Drains along or across highways.
46A-10A-72 Open ditches restricted along highways.
46A-10A-73 Drains along and across railroads--Costs.
46A-10A-74 Construction of drainage facilities across railroads--Costs.
46A-10A-75 Construction contracts--Bids--Preference of landowners--Bond of contractor--Construction without contract.
46A-10A-76 Highway bridges and culverts--Construction--Maintenance--Modification--Costs.
46A-10A-77 Construction and contracting powers of board.
46A-10A-78 Maintenance and improvement of existing drains, watercourses, and levees.
46A-10A-79 Apportionment of original cost to annexed area when project extended.
46A-10A-80 Maintenance of drains--Assessment of costs.
46A-10A-81 Jurisdiction of improved existing drain--Maintenance--Assessments.
46A-10A-82 Maintenance without notice--Actions authorized.
46A-10A-83 Petition for repair or improvement of drain.
46A-10A-84 Repairs without contract--Cost reimbursement.
46A-10A-85 Replacing drain as repair.
46A-10A-86 Improvements--Survey and cost estimate--Ordering without notice.
46A-10A-87 Improvements requiring notice and hearing--Reclassification of benefits--Appeal.
46A-10A-88 Assessment of maintenance and improvement costs.
46A-10A-89 Maintenance and assessments for drainage work in more than one county.
46A-10A-90 Injury or obstruction of drainage as misdemeanor--Civil liability.
46A-10A-91 Drain or watercourse constructed to prevent entry of water as nuisance--Exception.
46A-10A-92 Abandonment of project--Procedure.
46A-10A-93 Approval required to alter drainage rights established with federal or state funds.
46A-10A-94 Accounts of expenditures maintained--Inspection.
46A-10A-95 Appeal by state as to public lands.
46A-10A-96 Stay of proceedings on appeal--Bond--Damages.
46A-10A-97 Costs on appeal.
46A-10A-98 Drainage district management by Board of Trustees.
46A-10A-99 Petition for election.
46A-10A-100 Election meeting--Appointments.
46A-10A-101 Publication of notice of election--Votes by proxy.
46A-10A-102 Election board to procure district records preceding election--Elected trustees to act as record custodians--Updates to district records.
46A-10A-103 Voting rights of title holder.
46A-10A-104 Landowner or joint landowners entitled to one vote collectively--Voting rights of minor or protected person.
46A-10A-105 Voting through agent or proxy--Power of attorney to specify election for which it is used--Delivery of power of attorney.
46A-10A-106 Superintendent's responsibilities--Manner and purpose of elections.
46A-10A-107 Ballots and poll list--Ballot delivery.
46A-10A-108 Vote count--Determination of election results--Election materials to be retained for sixty days.
46A-10A-109 Results of election to determine length of term.
46A-10A-110 Trustees to appoint superintendent and clerks for subsequent election board--Determination of compensation of election board.
46A-10A-111 Succeeding annual trustee elections.
46A-10A-112 Trustee qualifications.
46A-10A-113 Appointment to fill vacancy.
46A-10A-114 Compensation of trustees and clerk of board--Filing requirements.
46A-10A-115 Election of chair and clerk of board.
46A-10A-116 Powers and duties of board of trustees.
46A-10A-117 Costs and expenses--Levy.
46A-10A-118 Assessment on real property.
46A-10A-119 Tax--Tax fund.
46A-10A-120 Issuance of improvement certificates and drainage bonds.
46A-10A-121 Record of official acts and proceedings--Filing of financial report--Examination of report.
46A-10A-122 Grievances--Mediation.
46A-10A-123 Special election--Notice.
46A-10A-1. Definitions.
Terms used in this chapter and chapter 46A-11, unless the context otherwise requires, mean:
(1) "Board," a board of county commissioners, as established in chapter 7-8;
(2) "Closed drain" or "blind drain," a man-made drain or drainage scheme utilizing pipes, tiles, or other materials and constructed in such a way that flow of water is not visible;
(3) "Commission" or "drainage commission," any county drainage commission created under the terms of this chapter;
(4) "Coordinated drainage area," a defined geographic area containing one or more parcels of real property and established under the provisions of this chapter and chapter 46A-11 by a board or commission to provide a planned network or method of natural or man-made drainage, or both, to benefit all parcels of real property involved;
(5) "Dominant estate," any parcel of real property, usually at a higher elevation, which holds a common law or statutory legal right to drain water onto other real property;
(6) "Drainage map," any map adopted by resolution of the board that delineates the extent of county drainage, a drainage project, or a coordinated drainage area;
(7) "Drainage plan," a document which may illustrate by maps, charts, and other descriptive matter the policies of the board to interrelate all man-made and natural systems and activities relating to drainage under its jurisdiction;
(8) "Drainage scheme," a plan or system by which water is drained from one or more parcels of real property onto one or more parcels of real property;
(8a) "Engineer," a professional, registered engineer;
(9) "Established water course," a fixed and determinate route, either natural or man-made, by which water has flowed from one parcel of real property to another and by which water has been discharged upon a servient estate for a period of time, on such a regular basis and in such quantities as to make it a predictably continuous activity;
(10) "Governing body," a board of county commissioners, a city council, or a city commission;
(11) "Landowner" or "owner," any individual, firm, or corporation, public or private, or public agency, who has legal title to real property as shown by the records of the register of deeds of the county in which the real property is situated. If the real property is sold under a contract for deed and the contract is of record in the office of the register of deeds for the respective county, both the recorded owner of the real property and the purchaser as named in the contract for deed are deemed owners of the real property;
(12) "Legal drain," a drain or drainage scheme that:
(a) Is vested under the provisions of this chapter and chapter 46A-11;
(b) Has been constructed by a person or by a unit of government under the provisions of past or present law; or
(c) Has been granted a drainage permit, if a permit is necessary under the provisions of this chapter and chapter 46A-11;
(13) "Municipality," a city or town, however organized, as defined in § 9-1-1;
(14) "Natural drain," a drainage system which operates as part of a natural water course, as defined in subdivision (15) of this section;
(15) "Natural water course," a fixed and determinate route by which water naturally flows from one parcel of real property to another due to the conformation of the land and by which water is discharged upon the land receiving the water. It is not necessary that the force of the flow of water be sufficient to form a channel having a well-defined bed or banks;
(16) "Official control," any ordinance, order, regulation, map, or procedure adopted by a board to regulate drainage;
(17) "Ordinance," any ordinance, as defined in subdivision 7-18A-1(2), adopted by a board to regulate drainage of both rural and urban areas to provide coordination of drainage projects, individual drainage efforts and drainage areas and to foster conformity with any county drainage plan;
(18) "Private drain," a drainage system or scheme designed, constructed, and maintained by a person primarily for his own benefit or a natural drain, whether or not actively maintained, that provides a benefit primarily to one person;
(19) "Rural" or "rural area," any territory outside a municipality as defined in § 9-1-1;
(20) "Servient estate," any parcel of real property, usually at a lower elevation, which is subject to a legal right allowing a dominant estate to drain water onto it;
(21) "Unit of local government," a municipality as defined in § 9-1-1, an irrigation district as defined in chapter 46A-4, a school district as defined in § 13-5-1, a water project district as defined in chapter 46A-18, a water user district as defined in § 46A-9-2, a township as defined in chapter 8-1, a sanitary district as defined in chapter 34A-5, a conservation district as defined in chapter 38-8 or other special district;
(22) "Vested right," a right of water drainage from one parcel of property to another which is settled or accrued to the property on the basis of state law; and
(23) "Water management board," the state board created in § 1-41-15.
Source: SL 1985, ch 362, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 14, eff. Apr. 19, 2021.
46A-10A-2. County drainage commission--Appointment--Filling vacancies--Majority required to act--Ex officio members.
The board of county commissioners of each county may appoint a commission of three or more members, the total membership of which shall always be an uneven number and at least one member of which shall be a member of the board, to be known as the county drainage commission. If a commission member resigns his or her position, is unable to fulfill the duties of the position, or is removed for cause under the provisions of § 46A-10A-3, the board shall appoint a new member to the commission within thirty days. A commission may not conduct official business unless all memberships on the commission are filled and unless a majority of the members are present at a meeting of the commission. Administrative officials of the county may be appointed as ex officio members of the commission, but have no vote in commission matters.
Source: SL 1985, ch 362, § 3; SL 2011, ch 165, § 492.
46A-10A-3. Term and removal of members.
The term of office for members of a county drainage commission shall be established by the board of county commissioners. Any appointed member of a county drainage commission may be removed for cause, after a hearing prior to the expiration of his term, by a majority vote of the elected members of the board of county commissioners.
Source: SL 1985, ch 362, § 4; SL 1988, ch 365.
46A-10A-4. Meetings.
A drainage commission shall meet at such times as may be necessary to accomplish the purposes of this chapter, but a commission may not meet less than once every six months.
Source: SL 1985, ch 362, § 5.
46A-10A-5. Compensation of members.
Per diem and expenses of a county drainage commission shall be established by the board of county commissioners and paid by the county.
Source: SL 1985, ch 362, § 6.
46A-10A-6. Employment of personnel.
To carry out the purposes of this chapter, a board or commission may employ an engineer or a hydrologist, or both, and such staff as it deems necessary, and a board or commission may contract with engineering consultants or with other specialists including an attorney who may be a part-time state's attorney for services it requires.
Source: SL 1985, ch 362, § 7; SL 1986, ch 378, § 1.
46A-10A-7. Assistance by units of state government--Expense reimbursement.
Any unit of state government may offer such technical assistance as it is able to any board or commission requesting such assistance. However, such technical assistance may not include granting a permit, settling a dispute, accepting a plan, establishing a coordinated drainage area, or performing any other decision function relegated to boards or commissions under the provisions of this chapter and chapter 46A-11. A unit of state government providing technical assistance may require reasonable reimbursement for its expenses. The provisions of this section do not prohibit the Water Management Board from taking action or providing assistance pursuant to the provisions of this section and §§ 46A-10A-9.1 to 46A-10A-9.5, inclusive.
Source: SL 1985, ch 362, § 8; SL 1987, ch 336, § 1.
46A-10A-7.1. Maintenance of correspondence file--Correspondence marked with date of receipt--Term of retention.
Any member of a board or a county drainage commission, if established, shall maintain a file containing a copy of any written correspondence relating to drainage control, including any complaint, request for information or request for assistance, received by such board or commission member. Any correspondence shall be clearly marked with the date of receipt and shall be retained for a minimum period of two years.
Source: SL 1987, ch 337.
46A-10A-8. State Water Management Board, districts, and existing water rights unaffected--Effect on drainage districts.
The provisions of this chapter and chapter 46A-11 do not abrogate or limit the rights, powers, duties, and functions of the State Water Management Board with reference to water rights, flood control, outlet elevations for public lakes, or ordinary high and low water marks on public lakes, but are supplementary thereto. This chapter and chapter 46A-11 do not limit or affect the laws of this state relating to organization and maintenance of irrigation districts, water user districts, water project districts, water development districts, conservation districts, or watershed districts, nor does it infringe upon or establish any rights superior to any existing water rights. The provisions of this chapter may affect drainage districts only as outlined under provisions of § 46A-10A-43.
Source: SL 1985, ch 362, § 8A; SL 1986, ch 379, § 4.
46A-10A-9. Joint drainage efforts by counties.
The boards or commissions of two or more counties may cooperate on drainage. Expenses incurred in connection with joint efforts, including contracted services, shall be shared equitably per agreement among the counties involved. Promotion of regional drainage projects, coordinated drainage areas and drainage patterns or schemes, including passage of compatible ordinances and resolutions in adjoining counties, is the primary but not exclusive objective of joint efforts.
Source: SL 1985, ch 362, § 9.
46A-10A-9.1. Petition for assistance in development of intercounty drainage plan--Board defined.
If the effectiveness of any drainage activity or official control depends upon cooperative action by the board of an adjoining county, and if voluntary joint drainage efforts, undertaken in good faith pursuant to § 46A-10A-9, have been unsuccessful, a board may file a petition with the Water Management Board requesting assistance in the development of an intercounty drainage plan or official control. For purposes of the provisions of §§ 46A-10A-9.1 to 46A-10A-9.5, inclusive, the term "board" means Board or County Drainage Commission, if established.
Source: SL 1987, ch 336, § 2.
46A-10A-9.2. Meeting to develop mutually acceptable joint county drainage activities.
Within thirty days after receipt of a petition for assistance filed pursuant to § 46A-10A-9.1, the chief engineer as defined by subdivision 46-1-6(5) shall schedule a meeting with representatives of any affected board or commission for the purpose of developing mutually acceptable joint county drainage activities or official controls.
Source: SL 1987, ch 336, § 3.
46A-10A-9.3. Recommendation, notice, and hearing before Water Management Board--Cost of publication--Implementation.
If efforts under § 46A-10A-9.2 to develop voluntary joint county drainage activities or official controls are unsuccessful, the chief engineer shall prepare a recommendation concerning joint county drainage activities or official controls. The recommendation, notice and hearing before the Water Management Board shall be conducted pursuant to the procedure contained in chapter 46-2A. Any cost of publication shall be borne by the affected counties. Following the hearing, the Water Management Board shall, by order, require any affected board to implement any action which the Water Management Board deems necessary for the effective drainage of land in the affected counties. The Water Management Board may require any action or official control which a board could properly institute pursuant to the provisions of this chapter.
Source: SL 1987, ch 336, § 4.
46A-10A-9.4. Limitation on effectiveness of action required by Water Management Board.
Any action or official control required by the Water Management Board pursuant to § 46A-10A-9.3 shall remain in effect for a period of no longer than one year.
Source: SL 1987, ch 336, § 5.
46A-10A-9.5. Action required by board to be included in county drainage plan--Not subject to referendum procedure.
Any action or official control required by the Water Management Board pursuant to § 46A-10A-9.3 shall be consistent with the principles outlined in § 46A-10A-20 and shall be included in the applicable county drainage plan, if a plan has been established. Such actions or official controls are not subject to any referendum procedure set forth in this chapter.
Source: SL 1987, ch 336, § 6.
46A-10A-10. Joint powers agreements by local units of government as to drainage.
Any unit of local government may enter into joint powers agreements with the board and with each other in order to avoid overlapping drainage jurisdiction and to promote cooperation and continuity in drainage matters.
Source: SL 1985, ch 362, § 10.
46A-10A-11. Agreements for receipt of federal or state funds for drainage.
Any county engaging in a drainage program may receive grants-in-aid from or enter into agreements with any department or agency of the government of the United States or the state to arrange for the receipt of federal or state funds in the interest of furthering a drainage program.
Source: SL 1985, ch 362, § 11.
46A-10A-12. Municipality contracting with county for services--Fees.
Any governing body of a municipality may contract with the board for drainage expertise and services to be provided by the county. Such contract may provide that the municipality shall pay fees as are agreed upon for the services performed.
Source: SL 1985, ch 362, § 12.
46A-10A-13. Joint county-municipal drainage activities.
A contract between a governing body of a municipality and a board may provide for joint county-municipal drainage activities.
Source: SL 1985, ch 362, § 13.
46A-10A-14. Board to provide funds, equipment, and accommodations for county drainage activity.
The board of county commissioners shall provide the funds, equipment, and accommodations necessary for such drainage activity as the county undertakes.
Source: SL 1985, ch 362, § 14.
46A-10A-15. Adoption of emergency drainage measures--Hearing--Notice--Limited term--Renewal.
If a county is conducting or in good faith intends to conduct drainage activity within a reasonable time, or has held or is holding a hearing for the purpose of considering a drainage project, coordinated drainage area, drainage plan, or other official controls, the board, in order to protect the public general welfare, may adopt as an emergency measure a temporary drainage map, temporary drainage ordinances, or other temporary official controls, the purpose of which shall be to regulate drainage and related matters as constitutes the emergency. Within fourteen days of adoption or renewal of any emergency measure, the board shall hold at least one public hearing with notice of the time and place of the hearing published at least ten days in advance in a newspaper having general circulation in the county. An emergency measure is limited to six months from the date it becomes effective and may be renewed for six months, but may not be in effect for more than one year.
Source: SL 1985, ch 362, § 15.
46A-10A-16. County drainage plan--Preparation--Adjuncts--Considerations.
A board or a county drainage commission, if established, may prepare, or cause to be prepared, a drainage plan for the county, including those municipalities within the county which have requested by resolution of the governing board of such municipality to be included. Any drainage ordinances, any official drainage map, and other official controls as deemed necessary shall be included as adjuncts to a drainage plan. The board or commission shall consider any drainage right described in § 46A-10A-31, any drainage district described in § 46A-10A-43, the drainage plans or projects of a unit of local government and existing coordinated drainage areas formed pursuant to § 46A-10A-47 in preparation of a county drainage plan.
Source: SL 1985, ch 362, § 16.
46A-10A-17. Purposes of drainage plan.
A drainage plan shall be for the purpose of enhancing and promoting physical, economic, and environmental management of the county; protecting the tax base; encouraging land utilization that will facilitate economical and adequate productivity of all types of land; lessening governmental expenditure; and conserving and developing natural resources. The plan may incorporate appropriate contingencies for the protection of private cropland and pasture.
Source: SL 1985, ch 362, § 17; SL 2001, ch 244, § 1.
46A-10A-18. Drainage projects and coordinated drainage areas authorized.
Official controls instituted by a board or commission may include establishment of drainage projects or coordinated drainage areas within which drainage of land for agricultural, residential, industrial and commercial, soil and water conservation, and additional uses may be encouraged, regulated, or prohibited. For such purposes, the board may establish coordinated drainage areas of such number, shape, and size as may be deemed best suited to carry out county drainage goals.
Source: SL 1985, ch 362, § 18.
46A-10A-19. Maps authorized.
Official controls instituted by a board or commission may include maps of drains, county highways and roads, culverts, wetlands, sloughs, and other natural and man-made features relating to drainage showing their alignments, gradients, dimensions, and other pertinent features.
Source: SL 1985, ch 362, § 19.
46A-10A-20. Legal controls for drainage management--Right to continue existing drainage.
Official controls instituted by a board may include specific ordinances, resolutions, orders, regulations, or other such legal controls pertaining to other elements incorporated in a drainage plan, project, or area or establishing standards and procedures to be employed toward drainage management. Any such ordinances, resolutions, regulations, or controls shall embody the basic principle that any rural land which drains onto other rural land has a right to continue such drainage if:
(1) The land receiving the drainage remains rural in character;
(2) The land being drained is used in a reasonable manner;
(3) The drainage creates no unreasonable hardship or injury to the owner of the land receiving the drainage;
(4) The drainage is natural and occurs by means of a natural water course or established water course;
(5) The owner of the land being drained does not substantially alter on a permanent basis the course of flow, the amount of flow, or the time of flow from that which would occur; and
(6) No other feasible alternative drainage system is available that will produce less harm without substantially greater cost to the owner of the land being drained.
Such provisions do not necessarily apply within municipalities, but if a municipality drains water onto rural lands lying outside the boundaries of the municipality, the municipality is subject to the above provisions, if adopted by the board.
Source: SL 1985, ch 362, § 20.
46A-10A-21. Official controls not limited.
Official controls are not limited to those set forth in §§ 46A-10A-18 to 46A-10A-20, inclusive.
Source: SL 1985, ch 362, § 21.
46A-10A-22. Publication of notice of hearing on proposed drainage plan.
If it receives a proposed drainage plan drafted by the drainage commission or if it prepares its own plan because no commission exists, which plan includes proposed official controls, the board of county commissioners shall direct the county auditor to publish, at least once a week for at least two successive weeks in a newspaper of general circulation in the area affected, a notice of hearing, the time and place when the hearing will be held, and a statement that all interested persons may appear and be heard.
Source: SL 1985, ch 362, § 22.
46A-10A-23. Board action on plan by ordinance or resolution.
Based on the results of a drainage plan hearing or hearings under § 46A-10A-22, a board's action upon a drainage plan or any part, adjunct, amendment, or addition shall be by resolution or ordinance, as appropriate, carried by the affirmative votes of not less than a majority of all the members of the board upon a finding that the plan is feasible and conducive to the public welfare and necessary or practicable for draining land in the county.
Source: SL 1985, ch 362, § 23.
46A-10A-24. Filing and publication of board action on plan--Effective date of plan--Public inspection.
Any action of a board on a drainage plan shall be filed with the county auditor. A summary of the action shall be prepared by the county board or the drainage commission, if established, shall be reviewed by the state's attorney, shall be published at least once within one week in the official newspaper or newspapers in the county and shall take effect on the twentieth day after its publication. Any summary published under the provisions of this chapter shall contain a notification that the public may inspect the entire drainage plan or any part, adjunct, amendment, or addition at the office of the county auditor during regular business hours.
Source: SL 1985, ch 362, § 24.
46A-10A-25. Petition for election on adoption of plan--Notice of election--Ballots--Suspension of effective date--Inconsistent drainage efforts prohibited.
Within twenty days of publication, five percent of the voters, as determined by the total number of votes cast for Governor in the county at the last gubernatorial election, may petition to have the question of adoption or rejection of a county drainage plan, or any part, adjunct, amendment, or addition thereto, placed on the ballot at the next primary or general election to be held more than sixty days after filing of the petition with the county auditor, whichever occurs first. The county auditor shall give notice of the fact that the question will be on the ballot at the primary or general election, as provided by law, for such elections and shall prepare official ballots according to the provisions of this code relating to elections and the submission of questions to the voters. The effective date of a county drainage plan or part, adjunct, amendment, or addition thereto on which a referendum is to be held shall be suspended by the filing of a referendum petition until the referendum process is completed. However, when a drainage plan or part, adjunct, amendment, or addition thereto is referred to a referendum vote, no drainage efforts that are inconsistent with the plan or part, adjunct, amendment, or addition thereto may be established between the time of adoption of the plan by the county commission, as provided in § 46A-10A-23, and the time of the referendum vote.
Source: SL 1985, ch 362, § 25.
46A-10A-26. Rejection of plan by voters--Revision, filing, and publication.
If the voters reject a proposed drainage plan or part, adjunct, amendment, or addition thereto, the board may revise or may order the drainage commission, if established, to revise the plan or part, adjunct, amendment, or addition thereto and adopt the same as revised, and file and publish the same as required by § 46A-10A-24. Such revision is subject to referendum procedures provided in § 46A-10A-25.
Source: SL 1985, ch 362, § 26.
46A-10A-27. Filing copy of adopted official control.
Upon adoption of any drainage ordinance or other official drainage control, including any maps or charts, the county auditor shall file a certified copy thereof with the county register of deeds.
Source: SL 1985, ch 362, § 27.
46A-10A-28. Approval required for rehabilitation or construction of drain covered by plan--Board review of commission decision.
If a board has adopted a drainage plan or any part, adjunct, amendment, or addition thereto, no rehabilitation of existing drainage or construction of new drainage, whether publicly or privately owned, if covered by the adopted plan, may be undertaken or authorized in the county until the location and extent thereof has been submitted to and approved by the board or commission, if established. In case of disapproval by a commission, it shall communicate its reasons in writing to the board. At a hearing to review the decision, by majority vote of the board members elect, a board may overrule all or any portion of a disapproval or any erroneous approval which is contrary to the adopted plan.
Source: SL 1985, ch 362, § 28.
46A-10A-29. Failure of commission to act as approval--Extension of period by board.
Failure of a drainage commission to act within sixty-five days from the date of an official submission to it under the provisions of § 46A-10A-28 shall be deemed approval, unless a longer period is granted by the board within the sixty-five-day period.
Source: SL 1985, ch 362, § 29.
46A-10A-30. Permit system for drainage--Fee--Modification of drain or use of unrecorded right--Drainage without permit as misdemeanor--Civil penalty.
Any board or commission under the provisions of this chapter and chapter 46A-11 may adopt a permit system for drainage. The permit system shall be prospective in nature. Permits shall be granted consistent with the principles outlined in § 46A-10A-20. The fee for a permit shall be established by the permitting authority, based on the administrative costs of regulating drainage activities, may not exceed one hundred dollars, and shall be paid only once. However, permitted drainage that is enlarged, rerouted, or otherwise modified requires a new permit. Any vested drainage right not recorded under the provisions of § 46A-10A-31 requires a permit for its use if a permit system has been established in the county where it exists. Any person or the person's contractor draining water without a permit, if a permit is required under the provisions of this section, is guilty of a Class 1 misdemeanor. In addition to or in lieu of any criminal penalty, a court may assess against any person violating the provisions of this section a civil penalty not to exceed one thousand dollars per each day of violation. A permit system is an official control.
Source: SL 1985, ch 362, § 30; SL 1986, ch 379, § 5; SL 2000, ch 217, § 1; SL 2011, ch 165, § 493.
46A-10A-31. Recording existing drainage rights--Information required--Disputing rights--Appeals--Recording final decision.
Any natural drainage right lawfully acquired by the owner or owners of either a dominant or servient estate prior to July 1, 1985, is deemed vested. Any drainage right lawfully acquired prior to July 1, 1985, arising from drainage which is natural with man-made modifications or entirely man-made is also deemed vested, provided the right is recorded with the appropriate county register of deeds within seven years of July 1, 1985. Registration shall include the following information:
(1) A legal description of any dominant estate or servient estate involved with the drainage right;
(2) The general course and direction of flow of water by means of the drainage right;
(3) The amount of time the drainage right has existed, if known, or, if not known, a statement to that effect;
(4) The general course and direction of natural flow if different from that of the right being registered; and
(5) The nature of the man-made modifications to the natural drainage.
The county register of deeds shall provide the board with a quarterly listing of such registrations, prior to the quarterly meetings of the board. The board shall include the list in its minutes which are published pursuant to § 7-18-3. A registration may include more than one drainage system.
Any drainage begun prior to July 1, 1988, and challenged by an affected landowner in a court of law or before a board or commission within two years of filing, may not become vested until and unless a final decision has been reached in favor of such drainage. Any commission decision may be appealed to the board within twenty days. Any board decision may be appealed to the circuit court of the county wherein the dispute arose within twenty days. Any circuit court decision may be appealed in the same manner as any other circuit court decision. If such final decision has been reached, including final decision on any appeal, the owner of the drainage right shall record the final decision within thirty days in order for the right to become vested. No county, township, or municipality is required to register its natural drainage rights.
Source: SL 1985, ch 362, § 31; SL 1986, ch 379, § 1; SL 1987, ch 338; SL 1991, ch 374.
46A-10A-31.1. Notice of recording requirements.
On or before July 1, 1988, each county shall provide notice of the recording requirements set forth in § 46A-10A-31, by publishing a notice, once a week for two consecutive weeks in at least one official county newspaper.
Source: SL 1986, ch 379, § 2.
46A-10A-31.2. Local governments exempt from recording requirements.
No county, municipality, or township may be required to record any highway right-of-way as a drainage right pursuant to this chapter.
Source: SL 1987, ch 339.
46A-10A-32. Copy of recorded vested right to department.
After a vested drainage right is recorded with a county register of deeds under the provisions of § 46A-10A-31, the register of deeds shall transmit a copy of the registration to the Department of Agriculture and Natural Resources.
Source: SL 1985, ch 362, § 32; SL 2011, ch 165, § 494; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-10A-33. Enforcement of chapter and official controls.
The board shall provide for the enforcement of the provisions of this chapter and of ordinances, resolutions, orders, and regulations made thereunder, and may impose enforcement duties on any officer, department, agency, or employee of the county.
Source: SL 1985, ch 362, § 33.
46A-10A-34. Adjudication functions of commission or board.
A board may provide for appointment of its drainage commission to serve as a board of resolution and, under the regulations and controls adopted pursuant to this chapter, may provide that the board of resolution in individual cases may make, upon an affirmative vote of three-fourths of the full membership of the board of resolution, special exceptions or variances to any official controls and may reach decisions in individual drainage disputes between landowners, consistent with the provisions of § 46A-10A-20. The board may constitute itself as the board of resolution. The board may further provide that specified types or categories of drainage disputes may not be heard by the board of resolution. A drainage dispute which is not within the jurisdiction of the board of resolution shall be taken directly to the circuit court of the county wherein the conflict exists.
Source: SL 1985, ch 362, § 34; SL 1986, ch 380; SL 1997, ch 256, § 26.
46A-10A-34.1. Board of adjudication by mutual agreement--Jurisdiction.
Any other provision of law notwithstanding, any board or commission, by mutual agreement, may serve as a board of adjudication, pursuant to § 46A-10A-34, for any other county. The jurisdiction of such board or commission is limited to the adjudication function specifically outlined in the agreement with the county board of the county holding jurisdiction over the drainage dispute.
Source: SL 1986, ch 379, § 11.
46A-10A-35. Appeals from commission and board--Time allowed--Commencing action in circuit court.
Any decision reached by a commission in order to settle a conflict involving drainage between landowners may be appealed to the board. Any board decision may be appealed or further appealed to the circuit court of the county wherein the conflict arose. An appeal under this section shall be commenced within twenty days of the decision being appealed. The provisions of this section notwithstanding, landowners may take a drainage conflict directly to the circuit court of the county wherein the conflict exists.
Source: SL 1985, ch 362, § 35.
46A-10A-36. Regulation and elimination of nonconforming drains.
The board may prescribe, by resolution as provided in § 46A-10A-33, such regulations not contrary to law or § 46A-10A-31, as it deems desirable or necessary to regulate and control, reduce the number or extent of or bring about the gradual elimination of nonconforming drains or drainage schemes.
Source: SL 1985, ch 362, § 36.
46A-10A-37. Amendment and repeal of drainage plan--Request by petition.
Regulations, restrictions, or enforcement provisions established in a drainage plan or part, adjunct, amendment, or addition thereto adopted by the board of county commissioners may from time to time be amended, supplemented, changed, modified, or repealed by action of the board of county commissioners as outlined in this chapter. Any amendment, supplement, change, modification, or repeal may be requested through a petition signed by thirty percent of the landowners in a drainage district or area requesting change.
Source: SL 1985, ch 362, § 37.
46A-10A-38. Petition by landowner for change of drainage restrictions--Notice to directly affected persons.
An individual landowner may petition a board or commission to change the drainage restrictions on any part of the landowner's property. The petitioning landowner shall notify all directly affected adjoining landowners and all directly affected third parties holding drainage interests by registered or certified mail of the petitioned change at least one week before any public hearing held on the petition by the board or commission. Property shall be considered as adjoining even if it is separated from the property of the petitioner by a public road or highway.
Source: SL 1985, ch 362, § 38; SL 2011, ch 165, § 495.
46A-10A-39. Hearing on petition--Commission recommendation to board.
Following receipt of any petition as provided in § 46A-10A-37 or 46A-10A-38, the board or commission shall hold a public hearing, subject to the requirements of § 46A-10A-22, and take action upon the petition, within forty-five days of receipt by a board or commission of any such petition. If a commission holds a hearing to consider the petition, it shall make a recommendation to the board.
Source: SL 1985, ch 362, § 39.
46A-10A-40. Affected person's right to be heard--Resolution adopting or rejecting proposal--Review, publication, and effective date of adoption--Election.
At any public hearing held pursuant to § 46A-10A-39, any affected person may appear and request or protest the requested change. The board or commission shall thereafter by resolution either adopt or reject such change, modification, or repeal and, if it is adopted by the board or commission, a summary shall be prepared by the board or commission, shall be reviewed by the state's attorney, shall be published once in the official newspaper in the county and shall take effect on the twentieth day after its publication. The provisions of § 46A-10A-25 are applicable hereto.
Source: SL 1985, ch 362, § 40.
46A-10A-41. Drainage plan or official controls for municipality--Approval or contract by municipality required for effectiveness.
The governing body of any municipality may request a county board or drainage commission to submit to the governing body a drainage plan for the municipality setting forth such provisions as the board or drainage commission deems applicable to the municipality for its best interests or to prepare official controls to apply to the area within the municipality. Adoption of a drainage plan and recommendations for the municipality notwithstanding, the plan and recommendations may not become binding within the boundaries of the municipality until official controls are adopted by the municipality in accordance with the plan, unless the board or commission has entered into a contract under § 46A-10A-12.
Source: SL 1985, ch 362, § 41.
46A-10A-42. Jurisdiction of incorporated municipality.
Nothing in this chapter other than the voluntary provisions of § 46A-10A-12 may be construed to prevent or modify the powers of an incorporated municipality from exercising drainage jurisdiction within the corporate limits and from exercising jointly with the county board or drainage commission the drainage authority outside of the corporate limits.
Source: SL 1985, ch 362, § 42.
46A-10A-43. Drainage district continuation and dissolution--County plan to include districts, vested rights and plans or projects of local government units and coordinated drainage areas.
Any drainage district established under the laws of this state that has functioned in its capacity as a drainage district within three years prior to July 1, 1985 or that has assessed real property in its capacity as a drainage district within three years prior to July 1, 1985 shall be allowed to continue in that status. However, the landowners in such existing drainage district may choose by majority vote at a general election under the general election laws of this state to dissolve in order to join one or more drainage projects or drainage methods or to become or join a coordinated drainage area. Any county drainage plan shall include functioning drainage districts, vested rights described in § 46A-10A-31, the drainage plans or projects of a unit of local government and existing coordinated drainage areas formed pursuant to § 46A-10A-47.
Source: SL 1985, ch 362, § 43.
46A-10A-43.1. Petition for future maintenance of drain jointly and voluntarily maintained by landowners within ten years of July 1, 1985.
Notwithstanding § 46A-10A-43, if within ten years prior to July 1, 1985, three or more landowners have jointly maintained a legal drain by voluntarily contributing the cost of maintenance without establishing a drainage district or without special assessments as provided in chapter 46A-11, the landowners may petition the board to provide for future maintenance, improvement, and repair of the drain.
Source: SL 1988, ch 366, § 1.
46A-10A-43.2. Signing of petition--Contents.
The petition shall be signed by sixty percent of the resident landowners served by the drain. The petition shall describe the past plan of voluntary contributions, describe the drain by its initial point, terminal point, and general course, or by its exact course in whole or in part, provide a general description of the territory likely to be affected and list the owners of the land served, if known. The petition shall include a statement that the owners agree to the future maintenance and assessment of the drain by the board.
Source: SL 1988, ch 366, § 2.
46A-10A-43.3. Presentation of petition--Filing--Transmittal to Department of Agriculture and Natural Resources--Hearing.
A petition may be presented at any regular or special meeting of the board, and, if in proper form, shall be ordered filed with the county auditor, who shall transmit a copy of the petition to the Department of Agriculture and Natural Resources. The board shall hold a hearing on the petition within thirty days.
Source: SL 1988, ch 366, § 3; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-10A-43.4. Opportunity to appear at hearing--When granted--Resolution by board as to maintenance of drain.
At a hearing held pursuant to the provisions of §§ 46A-10A-43.1 to 46A-10A-43.4, inclusive, any interested person may appear in regard to any matter in the petition. After the board has heard and considered the petition, it shall grant the petition if it complies with the provisions of §§ 46A-10A-43.1 and 46A-10A-43.2. The board shall by resolution provide for the maintenance, improvement, and repair of the drain as provided in § 46A-10A-80, shall give the drain a name and shall file a certified copy of the resolution in the office of the register of deeds.
Source: SL 1988, ch 366, § 4.
46A-10A-44. Recommendation that state's attorney seek injunction or other court action to prevent or abate violation.
In the event of a violation or a threatened violation of an ordinance, resolution, regulation, restriction, or other official control adopted pursuant to this chapter, a board or commission, in addition to other remedies, may recommend the county state's attorney seek an injunction or other appropriate action or proceeding in a court of competent jurisdiction to prevent, restrain, correct, or abate such violation or threatened violation.
Source: SL 1985, ch 362, § 44.
46A-10A-45. Mandamus proceedings authorized.
Any taxpayer of a county may institute mandamus proceedings in circuit court to compel performance by the proper official or officials of any nondiscretionary duty required by this chapter and by any ordinance adopted thereunder.
Source: SL 1985, ch 362, § 45.
46A-10A-46. Control of drainage construction, rehabilitation, or methods--Approval of board.
Any board or commission may adopt drainage ordinances, resolutions, or regulations to control individual drainage construction or rehabilitation or such drainage methods by groups of landowners within the county. Such ordinances, resolutions, or regulations shall be consistent with the principles outlined in § 46A-10A-20. Any drainage ordinances, resolutions, or regulations adopted by a commission shall further be approved by the board before going into effect.
Source: SL 1985, ch 362, § 46; SL 1986, ch 379, § 6.
46A-10A-47. Coordinated drainage area--Application for establishment--Inconsistency with county plan or controls barring formation--Validity of information in county in process of adopting plan or controls.
Whenever an area within a county and not within a municipality becomes so situated that drainage area coordination becomes advisable, persons within the area may apply to the board or the commission, if one exists, to establish the area as a coordinated drainage area pursuant to this chapter. A board or commission may not form a coordinated drainage area if it is inconsistent with a county-wide drainage plan and ordinances or other controls which have been adopted. The formation of a coordinated drainage area is valid in a county that is in the process of adopting a county-wide drainage plan and ordinances or other controls until such are in place.
Source: SL 1985, ch 362, § 47.
46A-10A-48. Survey and map of proposed coordinated drainage area required--Availability for examination.
Any person making application for establishment of a coordinated drainage area shall first obtain an accurate survey and map of the territory intended to be embraced within the limits of such area, showing the boundaries and area thereof. The accuracy thereof shall be verified by affidavit of a licensed surveyor. The survey and map, when completed and verified, shall be left at a convenient public office, to be designated by the county auditor of the county in which the application is filed, within the area for a period of not less than twenty days for examination by those having an interest in the application.
Source: SL 1985, ch 362, § 48.
46A-10A-49. Form, verification, signatures, filing, and presentation of application for establishment of area.
An application for establishment of a coordinated drainage area shall be a petition verified by one or more applicants by affidavit stating that the affiant or affiants personally witnessed the signatures thereon and believe them to be genuine and shall be signed by not less than twenty-five percent of the landowners residing within the area. It shall be filed with the county auditor and presented to the board or commission for consideration at its next meeting.
Source: SL 1985, ch 362, § 49.
46A-10A-50. Order establishing area subject to voters' approval--Notice of election--Exemption from election requirement.
If the board or commission is satisfied that the requirements of this chapter have been fully met, it shall make an order declaring that such area, with the assent of the landowners thereof, shall be a coordinated drainage area as specified in the application. It shall also include in such order a notice for an election of the landowners residing in the proposed area, at polling places designated by the board, on a day within one month, to determine whether the area shall become a coordinated drainage area. However, if the landowners signing the petition represent a majority of the resident landowners in the area, no election need be held.
Source: SL 1985, ch 362, § 50.
46A-10A-51. Publication of election notice.
The board or commission shall give ten days' notice of an election held under § 46A-10A-50 by publication in an official newspaper in the proposed coordinated drainage area.
Source: SL 1985, ch 362, § 51.
46A-10A-52. Hours polls open--Costs of election.
At any election to establish a coordinated drainage area held under this chapter, the polls shall be kept open from 7:00 a.m. until 7:00 p.m. The county shall bear the costs of the election.
Source: SL 1985, ch 362, § 52; SL 2006, ch 28, § 8.
46A-10A-53. Establishment of area effective on voters' approval--Waiting period after rejection by voters.
A vote to establish a coordinated drainage area shall be by ballot in the form provided by the board. If a majority of those voting favor the establishment, the area shall from that time be deemed a coordinated drainage area by order of the board. If a majority vote against the establishment, no further proceedings may be taken thereon for a period of two years.
Source: SL 1985, ch 362, § 53.
46A-10A-54. Appointment and duties of election officers--Order declaring area established--Conclusiveness of order.
The board or commission shall appoint three judges, who shall elect one of their members as superintendent, to conduct an election to establish a coordinated drainage area. After the vote is cast and canvassed, the judges shall make a verified statement showing the number of ballots cast, together with the number voting for and the number voting against establishment, and shall return the results to the board or commission at its next meeting. After the canvass of such election, the board or commission shall make an order declaring that the coordinated drainage area has been established if the results of the election favor establishment. Subject to appropriate judicial review, such order shall be conclusive of the fact of establishment.
Source: SL 1985, ch 362, § 54; SL 1986, ch 379, § 7.
46A-10A-55. Expenditure of county funds for application for coordinated drainage area--Assessment of costs from benefiting landowners.
The board is authorized to expend funds of the county, in the manner and to the extent permitted by law for other county expenditures, in the payment of necessary costs of preparation of petitions, surveys, maps, and applications submitted under the provisions of §§ 46A-10A-47 to 46A-10A-49, inclusive. The board may assess, levy, and collect such costs from any landowner benefiting from a coordinated drainage area in the same manner as provided for construction of drains elsewhere in this chapter and chapter 46A-11.
Source: SL 1985, ch 362, § 55; SL 1986, ch 379, § 8.
46A-10A-56. Public lands subject to drainage laws--Service of notices--Appearance by board or officer in charge.
All state public or school lands are subject to drainage laws. In any drainage proceeding affecting such lands, notices required by law to be given by publication and posting shall be served upon the commissioner of school and public lands at least thirty days before the time of the hearing. Such service may be made upon the commissioner in person, by service at the commissioner's office with the person in charge, or by registered or certified mail. If the land affected by the drainage proposal is not under the commissioner's control, the commissioner shall transmit a copy of the notice to the board or officer in charge of the land. The board or officer in charge of the land may appear at any such hearing or proceeding on behalf of the state.
Source: SL 1985, ch 362, § 56; SL 2011, ch 165, § 496.
46A-10A-57. Responsibilities for drainage projects.
A commission, if one is established, may discuss and make recommendations on drainage projects, but the board shall be responsible for the petition process, hearing process, bidding process, construction process, and maintenance of drainage projects. Drainage project processes shall be as outlined under §§ 46A-10A-58 to 46A-10A-97, inclusive.
Source: SL 1985, ch 362, § 57.
46A-10A-58. Signatures required for board action on drainage project petition.
The board may act upon a written drainage project petition only if it is signed by a majority of the resident owners of lands described in the petition who are likely to be affected by the proposed drainage. If potentially affected land is sold under a contract for deed which is of record in the office of the register of deeds, both the seller and the purchaser of the land shall be treated as owners.
Source: SL 1985, ch 362, § 58.
46A-10A-59. Contents of drainage project petition.
A project petition shall explain the necessity for the project, shall give a description of the proposed project route by its initial points, terminal points, and general course, or by its exact course in whole or in part, and shall give a general statement of the territory likely to be affected. Such project petition shall include an assessment of impact, environmental or otherwise, on any public property or public property right within the affected territory.
Source: SL 1985, ch 362, § 59.
46A-10A-60. Presentation and filing of petition--Time for board action--Copy to department.
A petition may be presented at any regular or special meeting of the board, and, if proper in form, shall be ordered filed with the county auditor. The board shall act within thirty days on all drainage project petitions. Upon receiving a petition, the county auditor shall transmit a copy to the Department of Agriculture and Natural Resources.
Source: SL 1985, ch 362, § 61; SL 2011, ch 165, § 497; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-10A-61. Survey and report contracted by board--Contents--Right of entry--Copy to department.
If the board determines it is necessary, it shall contract for a survey of the proposed drainage to be made by an engineer selected by the board. The survey and subsequent report shall show the starting point, the route, the terminus of any proposed ditch or drain or other improvement, and the course and length of any drain through each tract of land, together with the number of acres from each tract required for construction of improvements. The survey and report shall show the elevation of all lakes, ponds, and sloughs or depressions in the project and the boundary of the proposed project, to include all land that will be benefited by the proposed improvements. The survey and report shall include the approximate location of watersheds within the district, a description of each tract of land within the district, and the names of the owners and shall identify that tract of land most likely to receive average benefit from the project. The survey and report shall estimate the probable cost and shall include other facts and recommendations the engineer deems material so the board may determine the feasibility of the project. The survey may extend to lands other than those affected by the proposed project to determine the best practical method of draining the entire area under study. For the purpose of inspection or surveys, board members, engineers, or their employees may enter upon any land traversed by the proposed project that, in their judgment, is likely to be affected. The county auditor shall furnish the Department of Agriculture and Natural Resources a copy of the engineer's report and all maps and plans prepared by the engineer.
Source: SL 1985, ch 362, § 62; SL 2011, ch 165, § 498; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-10A-62. Survey report to be written--Inspection--Scheduling hearing--Notice requirements.
The report required by § 46A-10A-61 shall be in writing to the board and shall be maintained with the petition. The report shall be available for inspection and copying by interested parties during regular business hours. Upon receipt of an engineer's report, the county auditor shall set a time and place for a hearing on the petition and shall give notice thereof by publication at least once each week for at least two consecutive weeks in a legal newspaper of the county, to be selected by the auditor. The notice shall give a description of each tract of land affected by the proposed project and the names of owners and all directly affected third parties holding drainage interests. If any portion of a municipality is included within a proposed district, the notice is sufficient if it sets forth the boundaries of the municipal territory proposed to be included within the project without listing individual lots, parts of lots, parcels of land, or the names of the owners thereof and if it refers interested persons to the files in the proceeding for further particulars. The notice shall summon all persons affected by the proposed drainage to appear at the hearing and testify regarding the proposed project. The notice also shall summon all persons deeming themselves damaged by the proposed project or claiming compensation for lands proposed to be taken for the project to present their claims at the hearing.
Source: SL 1985, ch 362, § 63.
46A-10A-63. Appearances at hearing--Establishment of project--Variation from report--Adjournment of hearing--Notices.
At a hearing, any interested person may appear in regard to statements in the petition, matters set forth in the engineer's report or the overall construction plan of the project. After a hearing, the board may establish the project as set forth in the engineer's report or may amend and establish the project in accordance with an amendment of the engineer's report. If the board deems it best to vary the route, materially change the initial or terminal points of the proposed project or increase the width of land to be taken for the proposed project, the board shall adjourn the hearing and give the owners of the land affected by the project change notice as in the original hearing. If the proposed project does not have sufficient fall to drain lands as intended or will not dispose of water properly, it shall be extended as necessary, the hearing shall be adjourned and notice shall be given as in the original hearing, to all owners of land affected by the extension.
Source: SL 1985, ch 362, § 64.
46A-10A-64. Assistance by department--Reimbursement of expenses.
If so requested, the Department of Agriculture and Natural Resources may render such assistance and advice to the board in regard to the project as the assigned duties of the department will permit. The department shall be reimbursed by the board for any expenses incident to the advice and assistance.
Source: SL 1985, ch 362, § 65; SL 2011, ch 165, § 499; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-10A-65. Denial of petition or establishment of project--Findings required.
If the board has heard and considered the petition, it shall deny the petition if it finds the proposed project is not feasible and conducive to public welfare or is not necessary or practicable for draining land. If it finds the proposed project, or any variation thereof, is feasible and conducive to public welfare and necessary or practicable for draining land, the board by resolution shall establish the project.
Source: SL 1985, ch 362, § 66.
46A-10A-66. Assessments authorized--Expenses paid.
Assessments shall be made as provided in this chapter and chapter 46A-11. All compensation claims and expenses of legal notices, inspection of the proposed route, payment of engineer's and attorney's fees, and other expenses associated with project establishment shall be paid from the general fund of the county and reimbursed from those assessments.
Source: SL 1985, ch 362, § 67.
46A-10A-67. Acquisition of easements.
An easement for a drainage right may be acquired by the existence of a drainage ditch for a period of at least twenty consecutive years, by purchase or grant of easement from the owner of land through which the ditch will pass, or by condemnation under the provisions of this chapter and chapter 46A-11.
Source: SL 1985, ch 362, § 68.
46A-10A-68. Damages due to project--Determination--Hearing--Appeal.
If a board establishes a project pursuant to § 46A-10A-65, it shall calculate the damage sustained by each tract of land or by other property due to construction or maintenance of the project. The board shall give notice of its determination of damages to the respective landowners and shall schedule a hearing thereon. Damages to crops growing during construction may be calculated at a later time and shall be considered part of the cost of construction. At the hearing, the board will receive evidence on the question of damages and just compensation. Any affected person or competent witness on his behalf may testify in the matter of damages or compensation for land. A determination of damages by the board after the hearing is final unless appealed as provided in this chapter. Any appeal from a board's determination of damages shall be heard in circuit court as a condemnation action. Failure to appear to contest or to appeal an award of damages shall be deemed acceptance of damages or compensation for land taken.
Source: SL 1985, ch 362, § 69.
46A-10A-69. Naming project--Record of proceedings.
Any project established pursuant to § 46A-10A-65, shall be given a name by the board. Subsequent project proceedings shall be recorded and indexed in a book kept for that purpose in the auditor's office.
Source: SL 1985, ch 362, § 70.
46A-10A-70. Permissible drainage of land.
Subject to any official controls pursuant to this chapter and chapter 46A-11, owners of land may drain the land in the general course of natural drainage by constructing open or covered drains and discharging the water into any natural watercourse, into any established watercourse, or into any natural depression whereby the water will be carried into a natural watercourse, into an established watercourse, or into a drain on a public highway, conditioned on consent of the board having supervision of the highway. If such drainage is wholly upon an owner's land, the owner is not liable in damages to any person. Nothing in this section affects the rights or liabilities of landowners in respect to running waters or streams.
Source: SL 1985, ch 362, § 71; SL 2011, ch 165, § 500.
46A-10A-71. Drains along or across highways.
Subject to any official controls pursuant to this chapter and chapter 46A-11, drains may be laid along, within the limits of, or across any public highway. If a highway is constructed along or across a drain, the board or officers in charge of such highway shall keep the drain free and clear of obstruction.
Source: SL 1985, ch 362, § 72.
46A-10A-72. Open ditches restricted along highways.
No open ditch may be constructed within the limits of any public highway unless the topography makes such construction advisable. If construction is advisable, the ditch shall be located at a sufficient distance from the center of the highway to permit construction of a highway of standard width.
Source: SL 1985, ch 362, § 73.
46A-10A-73. Drains along and across railroads--Costs.
A drain may be constructed along a rail line, if necessary, if no damage is done to the rail line. If it is necessary to cross a railroad right-of-way, the railroad company, if so ordered by the board, shall make necessary openings through the right-of-way and construct and maintain culverts or bridges to permit free and unobstructed flow of water across the right-of-way. The cost of such construction and maintenance, except the cost of excavating the ditch across the right-of-way, shall be borne as outlined in § 46A-10A-74. Service of such order shall be made upon the railroad company in the manner provided for the service of summons in a civil action. An order directing construction of a drainage bridge or culvert shall be served upon the railroad company. The railroad company shall have sixty days after the service of an order to construct the bridge or culvert.
Source: SL 1985, ch 362, § 74; SL 1986, ch 379, § 9.
46A-10A-74. Construction of drainage facilities across railroads--Costs.
A railroad's reasonable estimated cost of constructing a drainage facility across a railroad right-of-way shall be included in damages to be awarded the railroad company at the time the drainage is established. If the company refuses or neglects to construct bridges or culverts within a period of sixty days after service of an order, the board may construct bridges or culverts at the expense of the county and is entitled to recover such construction costs from the railroad company. Any action to recover construction costs shall be taken to circuit court and prosecuted by the state's attorney of the county.
Source: SL 1985, ch 362, § 75.
46A-10A-75. Construction contracts--Bids--Preference of landowners--Bond of contractor--Construction without contract.
At any time after adopting a drainage plan or other official control, a board may construct drainage or let contracts for its construction. A contract may be for construction of an entire drainage project, for any portion thereof, or for material and labor separately, and the contract shall be let by competitive bid. A board may reject any bid. The lowest responsible and capable bidder shall be accepted. If a responsible and capable landowner affected by the project submits one of several low bids, the landowner shall be given contract preference. If a contract is let, the contractor shall post a bond in the amount of the contract, conditioned on faithful performance of the contract and full completion of the contract to the satisfaction of the board. For purposes of bids on a proposed project, all plans and specifications for the project shall be filed in the office of the county auditor. If, in the judgment of the board, the entire project or any part thereof can be constructed for less money than the amount of the lowest bid submitted, the board may hire the necessary labor and purchase the necessary material for the construction without letting contracts, the provisions of chapters 5-18A and 5-18B notwithstanding.
Source: SL 1985, ch 362, § 76; SL 2011, ch 2, § 150.
46A-10A-76. Highway bridges and culverts--Construction--Maintenance--Modification--Costs.
Contracts for building public highway bridges and culverts necessary after construction of a drainage project may be let separately after the project is completed. The expense of constructing bridges or culverts initially shall be charged as part of the drainage costs, but thereafter such bridges and culverts shall be maintained as part of the highway. The expense of removing, repairing, enlarging, or replacing existing bridges or culverts across the line of a proposed drainage project shall be borne in equal shares by the drainage project and the county highway fund.
Source: SL 1985, ch 362, § 77.
46A-10A-77. Construction and contracting powers of board.
Any county board has the same powers in relation to construction of and contracting for drainage projects as it has in construction of and contracting for any other facilities.
Source: SL 1985, ch 362, § 78.
46A-10A-78. Maintenance and improvement of existing drains, watercourses, and levees.
Powers conferred by this chapter and chapter 46A-11 for establishing and constructing drains include maintaining, relocating, extending, deepening, widening, and regulating of existing drains and drains hereafter constructed; straightening, cleaning out, deepening, and otherwise regulating channels of creeks and streams; and constructing, maintaining, remodeling, and repairing levees, dikes, and barriers for the purpose of drainage.
Source: SL 1985, ch 362, § 79.
46A-10A-79. Apportionment of original cost to annexed area when project extended.
If an existing drainage project is extended or enlarged, the board or boards shall apportion the benefits resulting to the annexed area from the existing construction in the original project as a cost to be absorbed by the lands of the annexed area on the basis of the original cost of the drain.
Source: SL 1985, ch 362, § 80.
46A-10A-80. Maintenance of drains--Assessment of costs.
Any drain that has been constructed under the provisions of this chapter or chapter 46A-11 is under control of the board or commission and shall be kept open and in repair by it, unless otherwise provided. If any drain is situated in more than one county, care of the portion lying within each county is assigned to that county's board or commission to be kept open and in repair. The cost of repairs shall be assessed, levied, and collected in the same manner as provided in this chapter and chapter 46A-11 for construction of drains.
Source: SL 1985, ch 362, § 81.
46A-10A-81. Jurisdiction of improved existing drain--Maintenance--Assessments.
If an existing drainage project is improved, it is under the jurisdiction and supervision of the board, or joint boards if the drainage project is in more than one county, or a commission in counties adopting that form of management. Its respective board or commission shall keep it in repair. If no assessments of benefits have been made, the board having charge of the drain shall make assessments.
Source: SL 1985, ch 362, § 82.
46A-10A-82. Maintenance without notice--Actions authorized.
At any time and on its own motion, without notice, a board may maintain a drainage project. The board may remove silt, debris, weeds, and other vegetation growth, may repair damaged structures, and may take other action as necessary to maintain the project's original efficiency or capacity.
Source: SL 1985, ch 362, § 83.
46A-10A-83. Petition for repair or improvement of drain.
If a board fails to make necessary drainage repairs or improvements or fails to act as provided in §§ 46A-10A-81 to 46A-10A-88, inclusive, a majority of the owners of lands affected or likely to be affected by the proposed repairs or improvements may file with the county auditor a petition signed by them requesting the board to take such action. If the drainage extends over more than one county, a petition shall be filed in each county and each involved board shall act.
Source: SL 1985, ch 362, § 84.
46A-10A-84. Repairs without contract--Cost reimbursement.
If required drainage repairs will cost less than ten thousand dollars and the board projects a potential saving by not receiving bids, it may direct the repairs to be done by county equipment and labor. The county fund utilized shall be reimbursed from the drainage project fund thus benefited.
Source: SL 1985, ch 362, § 85.
46A-10A-85. Replacing drain as repair.
If, in repairing a closed drain, the board finds from the engineer's report that it is more economical to construct a new closed drain than to repair an existing drain, the new drain is considered a repair.
Source: SL 1985, ch 362, § 86.
46A-10A-86. Improvements--Survey and cost estimate--Ordering without notice.
If a board determines that improvements which differ from repairs are necessary or desirable, the board may appoint an engineer to conduct a survey of the proposed improvement, estimate its cost, and file the estimate with the board. An improvement may include enlarging, reopening, widening, deepening, strengthening, or lengthening of any drain; changing the location of or improving and enlarging an outlet for better service; converting all or a part of any drain from an open ditch to a closed drain; installing surface pipe for open ditches; leveling spoil banks; or constructing settling basins. If the estimated cost of the improvements does not exceed ten thousand dollars, the board may order the work done without notice.
Source: SL 1985, ch 362, § 87.
46A-10A-87. Improvements requiring notice and hearing--Reclassification of benefits--Appeal.
If a board deems it desirable to make drainage improvements and the estimated cost exceeds ten thousand dollars, it shall set a date for a hearing on the matter and on the matter of reclassification of benefits for the cost of the improvements and shall provide notice as provided in § 46A-10A-62. At the hearing the board shall hear testimony on the feasibility of the improvements and on reclassification and shall take action as it considers desirable regarding the improvements. If, due to extensive modification to the project and its operation, the board determines a reclassification of benefits should be undertaken, the board shall proceed in accordance with §§ 46A-11-2 to 46A-11-4, inclusive. Any affected party has the right to appeal the board's decision to reclassify benefits and to such classification, if accomplished.
Source: SL 1985, ch 362, § 88.
46A-10A-88. Assessment of maintenance and improvement costs.
Costs of cleaning, maintaining, repairing, or improving drainage may be assessed against all land in a drainage project in the same proportion as fixed for the project. Such assessments shall be made as are other assessments for construction of drainage and all finance and enforcement provisions of law relating to assessments for the original construction of the project shall govern assessments for maintenance, cleaning, improvement, and general and emergency repairs.
Source: SL 1985, ch 362, § 89.
46A-10A-89. Maintenance and assessments for drainage work in more than one county.
Any provisions of this chapter and chapter 46A-11 relating to maintenance of drainage or levy of maintenance assessments are the responsibility of the board of the county having jurisdiction over the drainage. Immediately after assessments are levied by a board in charge of drainage work that lies in more than one county, the county auditor shall prepare a complete transcript of the proceedings not previously filed relating to the drainage and shall file the report with each affected county.
Source: SL 1985, ch 362, § 90.
46A-10A-90. Injury or obstruction of drainage as misdemeanor--Civil liability.
Any person who intentionally removes a surveyor's stake set along the line of a drain, obstructs or injures a drain or watercourse used for drainage, or breaks down or injures a levee governed by the provisions of this chapter and chapter 46A-11:
(1) Is guilty of a Class 2 misdemeanor; and
(2) Is liable for damages in an amount required to repair the injury, such damages to be recovered in a civil action by the board. Damages, when collected, shall be deposited with the county treasurer and credited to the construction and maintenance fund of the project.
Source: SL 1985, ch 362, § 91.
46A-10A-91. Drain or watercourse constructed to prevent entry of water as nuisance--Exception.
Any ditch, drain, or watercourse constructed to prevent surface and overflow water from adjacent land from entering it is hereby declared a nuisance and may be abated as such unless such action was taken in accordance with the provisions of this chapter and chapter 46A-11 and the principles outlined in § 46A-10A-20.
Source: SL 1985, ch 362, § 92.
46A-10A-92. Abandonment of project--Procedure.
Any intrastate drainage project, local drainage project, or drainage works established prior to July 1, 1985, existing under the provisions of prior state law or existing under the provisions of this chapter and chapter 46A-11 may be abandoned and abolished after a petition has been filed, notice has been published, and a hearing has been held by the board having jurisdiction. Petition, notice, and hearing procedures shall be the same as for construction of a drainage project. An election may be held on the issue and shall follow the procedures outlined in § 46A-10A-43.
Source: SL 1985, ch 362, § 93.
46A-10A-93. Approval required to alter drainage rights established with federal or state funds.
Drainage rights established by state and federal funds in state financed public improvements only may be altered or affected by the board of county commissioners or drainage commission after approval and concurrence by official action of the state agency administering such state or federal funds.
Source: SL 1985, ch 362, § 93A.
46A-10A-94. Accounts of expenditures maintained--Inspection.
An itemized account of expenditures for any drainage project construction, repairs or improvement shall be maintained in the office of the county treasurer and shall be open to public inspection during regular business hours.
Source: SL 1985, ch 362, § 94.
46A-10A-95. Appeal by state as to public lands.
In any decision involving lands described in § 46A-10A-56, the state has the same right of appeal from an order relating to drainage as does an individual, but no bond on appeal need be furnished.
Source: SL 1985, ch 362, § 95.
46A-10A-96. Stay of proceedings on appeal--Bond--Damages.
No appeal may operate as a stay of proceedings by a board, but a court, upon taking an appeal, for good cause may issue an order staying further proceedings by a board until a hearing and determination of the merits of the appeal are completed. Before granting a stay, a court shall require a bond or other undertaking in sufficient amount and with sufficient surety so that, if the order appealed from is sustained, the person upon whose motion the stay is granted shall pay all damages caused by the stay. For purposes of this section, no activity under the provisions of § 46A-10A-25 or 46A-10A-68 may be considered an appeal.
Source: SL 1985, ch 362, § 96.
46A-10A-97. Costs on appeal.
If, on appeal, the court rules in favor of a board decision regarding a conflict between the appellant landowner and the board, the appellant landowner is liable for all costs associated with the appeal. If the contention of an appellant landowner is substantially sustained, costs associated with the appeal shall be included in the total costs of the project, but the appellant's costs before appeal shall be borne by the appellant.
Source: SL 1985, ch 362, § 97; SL 2011, ch 165, § 501.
46A-10A-98. Drainage district management by Board of Trustees.
Any established drainage district as defined by § 46A-10A-43 may be placed under the control and management of a board of three trustees to be elected by the persons owning land in the district.
Source: SL 1997, ch 256, § 1.
46A-10A-99. Petition for election.
Twenty percent of the landowners as defined by subdivision 46A-10A-1(11), owning land within the district assessed for benefits, may file a petition requesting that a meeting be held to conduct an election to determine if a drainage district shall be governed by three trustees as authorized by § 46A-10A-98. The petition shall be filed with the auditor of the county containing the majority of the land in the district. If the auditor determines the petition is signed by the requisite number of landowners, the petition shall be presented to the board of county commissioners.
Source: SL 1997, ch 256, § 2.
46A-10A-100. Election meeting--Appointments.
The board of county commissioners shall at their next session, set a date, time, and location for a meeting of district landowners to conduct an election to determine if a drainage district shall be governed by three trustees and shall enter an order to that effect. The election meeting shall be held within forty-five days from the date of the order. The board shall appoint from the landowners of the district a superintendent and two clerks of election to serve as an election board who shall convene the meeting, take minutes, and conduct the election.
Source: SL 1997, ch 256, § 3.
46A-10A-101. Publication of notice of election--Votes by proxy.
The county auditor shall publish notice of the election. The notice shall give the time, place, and purpose of the election. The notice shall be published for two consecutive weeks in the official newspapers of each county. The last publication may not be less than ten days before the date of the election. The auditor shall mail a copy of the notice of election to each landowner in the district. The county auditor shall also inform each landowner in writing that each landowner may vote by proxy pursuant to § 46A-10A-105.
Source: SL 1997, ch 256, § 4.
46A-10A-102. Election board to procure district records preceding election--Elected trustees to act as record custodians--Updates to district records.
Before any election is held, the election board shall procure from the county auditor, auditors, or appropriate county official a certified copy of the record of the establishment of the district showing the lands of the district, the assessment and classification of each tract, and the name of the person or persons against whom the tract was assessed for benefits, and the present record owner or owners. The certified record shall be kept by the trustees after they are elected for use in subsequent elections. The trustees shall, preceding each subsequent election, procure from the county auditor, auditors, or appropriate county official additional certificates showing changes of title of land assessed for benefits and the names of the new owners.
Source: SL 1997, ch 256, § 5.
46A-10A-103. Voting rights of title holder.
Anyone who has acquired ownership of assessed lands since the latest certificate from the auditor may vote at any election if the person presents evidence of title to the election board for its inspection at the time the person demands the right to vote.
Source: SL 1997, ch 256, § 6.
46A-10A-104. Landowner or joint landowners entitled to one vote collectively--Voting rights of minor or protected person.
A landowner or joint landowners who own a tract of land within the district assessed for benefits are entitled to one vote collectively. The vote of any person who is a minor or a protected person as defined by § 29A-5-102, may be cast by the parent, conservator, or legal representative of the minor or protected person. The person casting the vote shall deliver to the clerks of election a written sworn statement giving the name, age, and place of residence of the minor or protected person.
Source: SL 1997, ch 256, § 7.
46A-10A-105. Voting through agent or proxy--Power of attorney to specify election for which it is used--Delivery of power of attorney.
Any landowner or landowners entitled to vote may vote through an agent or proxy authorized to cast votes by a power of attorney signed and acknowledged by the landowner or landowners and filed before the vote is cast in the auditor's office of the county where the election is held. Every power of attorney shall specify the particular election for which it is used, indicating the day, month, and year of the election, and is void for all subsequent elections. If a landowner chooses to vote by proxy, the power of attorney shall be postmarked and sent or delivered to the address designated by the election board at least five days before the election.
Source: SL 1997, ch 256, § 8.
46A-10A-106. Superintendent's responsibilities--Manner and purpose of elections.
At the opening of the meeting, the superintendent shall state the purpose of the meeting and the manner in which the elections will be conducted. The first election conducted shall be to determine whether a board of three trustees should be elected to control and manage the district. This election shall be by secret ballot provided by the election board. If a majority of those voting approve of a board of trustees, then an election shall immediately be conducted to elect three trustees. An election conducted for trustees shall be preceded by verbal candidate nominations by those in attendance. Each voter shall be given a blank piece of paper to be used as a ballot to vote for as many trustees as are to be elected. The superintendent of the election shall instruct the voters as to how many votes may be cast on the ballot.
Source: SL 1997, ch 256, § 9.
46A-10A-107. Ballots and poll list--Ballot delivery.
When the voters vote by ballot to determine whether to form a board of trustees or on the election of trustees, a poll list shall be kept by the clerk of the meeting, on which shall be entered the name of each person whose vote is received. The ballot shall be delivered by the voter to one of the clerks, so folded as to conceal its contents, and the clerk shall deposit the ballot in a box provided for that purpose.
Source: SL 1997, ch 256, § 10.
46A-10A-108. Vote count--Determination of election results--Election materials to be retained for sixty days.
At the close of the election, the clerks shall proceed publicly to count the votes, which, when commenced, shall continue without adjournment or interruption until the count is completed. The count shall be conducted by taking one ballot at a time from the ballot box and counting until the number of ballots is equal to the number of names on the poll list, and if there are any left in the box, they shall be marked as extra ballots and not counted. The person having the highest number of votes for trustee shall be declared duly elected. If two or more persons have an equal number of votes for trustee, the clerks of election shall at once publicly, by lot, determine which of such persons shall be declared elected. If on opening the ballot, two or more ballots are found to be so folded that it is apparent the same person voted them, such ballots shall be marked as such and not counted. The count having been completed, a statement of the result shall be entered at length by the clerk in the minutes and publicly read by the clerk to the members attending the meeting. Such reading shall be deemed official notice of the result of the election. All ballots, pool lists, power of attorney forms, and other election materials shall be kept for sixty days by the election superintendent in a manner which guarantees their safety and integrity.
Source: SL 1997, ch 256, § 11.
46A-10A-109. Results of election to determine length of term.
The results from the initial election for trustees shall determine the length of term each trustee shall hold. The candidate with the most votes shall be elected for a three-year term, the candidate with the second highest vote total shall be elected for a two-year term and the candidate with the third highest vote total shall be elected for a one-year term. The term of office for a trustee elected at a succeeding election shall be three years or until the trustee's successor has qualified.
Source: SL 1997, ch 256, § 12.
46A-10A-110. Trustees to appoint superintendent and clerks for subsequent election board--Determination of compensation of election board.
After the first election of trustees, the trustees shall appoint a superintendent and two clerks to act as an election board in succeeding elections. The board of trustees may determine the amount of compensation for the election board for the services performed by them.
Source: SL 1997, ch 256, § 13.
46A-10A-111. Succeeding annual trustee elections.
Succeeding annual trustee elections shall be held at 8:00 p.m. on the last Tuesday of the month in which the initial trustee election was conducted. The date and time of the election may be changed to another date and time within that month upon majority vote of those present at a prior annual election meeting. The election board appointed for succeeding annual elections shall publish a notice of election for the annual election of a trustee or trustees pursuant to the procedures set forth in § 46A-10A-101. The election board shall also mail a copy of the notice of election to each landowner and notify the landowner of the landowner's right to vote by proxy at least fourteen days prior to the date of election.
Source: SL 1997, ch 256, § 14.
46A-10A-112. Trustee qualifications.
Each trustee shall be a citizen of the United States, not less than eighteen years of age, and an owner of land in the district.
Source: SL 1997, ch 256, § 15.
46A-10A-113. Appointment to fill vacancy.
If any vacancy occurs in the membership of the board of trustees between the annual elections, the remaining members of the board may fill the vacancy by appointing a person with the required qualifications. The appointed person shall qualify in the same manner and hold office until the next annual election when a successor is elected. If all places on the board become vacant, then a new board shall be elected in the same manner as was the initial board.
Source: SL 1997, ch 256, § 16.
46A-10A-114. Compensation of trustees and clerk of board--Filing requirements.
The compensation of the trustees and the clerk of the board shall be fixed at twenty-five dollars per day and necessary expenses, to be paid out of the funds of the drainage district for each day necessarily expended in the transaction of business of the district, but no person may draw compensation for services as a trustee and as a clerk at the same time. Each trustee shall file with the auditor itemized, verified statements of the time devoted to the business of the district, and of the expenses incurred.
Source: SL 1997, ch 256, § 17.
46A-10A-115. Election of chair and clerk of board.
The board of trustees shall elect a chair and shall select some other landowner of the district as clerk of the board. The clerk shall serve at the pleasure of the board of trustees.
Source: SL 1997, ch 256, § 18.
46A-10A-116. Powers and duties of board of trustees.
The board of trustees may control, supervise, and manage the district. Subject to the legal controls for drainage management under § 46A-10A-20, the board of trustees may, in conformity with any applicable local, state, and federal laws, rules, ordinances, and regulations:
(1) Clean out, repair, and maintain an existing drainage ditch;
(2) Deepen, widen, or enlarge a drainage ditch;
(3) Create a new drainage ditch, or relocate an existing drainage ditch;
(4) Extend an existing drainage ditch;
(5) Acquire lands for right-of-way for ditches by purchase or condemnation or any other lawful method in conformity with chapter 21-35 and any other provision of state law;
(6) Repair levies, dikes, and barriers for the purpose of drainage;
(7) Regulate the flow and direction of water to prevent downstream flooding;
(8) Employ or contract with an engineer, hydrologist, surveyor, appraiser, assessor, legal counsel, or any other specialists as they deem necessary to carry out the powers and duties conferred by §§ 46A-10A-98 to 46A-10A-123, inclusive;
(9) Let contracts for construction, maintenance, repair, or other necessary work pursuant to the provisions of chapters 5-18A and 5-18B and § 46A-10A-75. No member of the board of trustees may have any interest in any contract or employment entered into pursuant to this subdivision or subdivision (8);
(10) Request the county commission or township board of supervisors to replace, repair, remove, and enlarge public highway culverts and bridges, pursuant to §§ 46A-10A-76, 31-12-19, 31-14-2, and 31-14-27;
(11) Grant a request by a landowner to annex the landowner's land to the district and apportion the costs of clean out, maintenance, or construction according to the benefits received and subject to approval by a majority of the eligible landowners voting in a special election held by the board of trustees in conjunction with the district's annual election; and
(12) Reclassify benefits and apportion costs of clean out, extension, enlargement, repairs, or improvements among landowners benefitting therefrom, if the landowners have land located within the drainage district.
Source: SL 1997, ch 256, § 19; SL 2011, ch 2, § 151.
46A-10A-117. Costs and expenses--Levy.
All costs and expenses to discharge the powers and duties by §§ 46A-10A-98 to 46A-10A-123, inclusive, including costs of elections, shall be assessed, levied, and collected under the provisions of chapter 46A-11. A levy shall be upon certificate by the board of trustees to the board of county commissioners of the amount necessary for the levy.
Source: SL 1997, ch 256, § 20.
46A-10A-118. Assessment on real property.
Any assessment on real property for the purposes set forth in §§ 46A-10A-98 to 46A-10A-123, inclusive or chapter 46A-11 is not subject to any real property tax freeze assessment under the provisions of chapter 10-6 or 10-6A.
Source: SL 1997, ch 256, § 21.
46A-10A-119. Tax--Tax fund.
The tax shall be collected by the county treasurer as other taxes are collected in the county. The tax shall be deposited and kept in a separate fund to the credit of the district. The money may be expended only upon the order of the board of trustees signed by the chair and clerk of the board. The chair and clerk of the board shall provide a surety bond in the amount of at least five thousand dollars.
Source: SL 1997, ch 256, § 22.
46A-10A-120. Issuance of improvement certificates and drainage bonds.
The board of trustees of any district may issue improvement certificates and drainage bonds under the same conditions as is provided by chapter 46A-11 for issuance by the board of county commissioners, except that in case of the issue of drainage bonds, the bonds shall be approved by a simple majority of the eligible landowners voting in a special election held by the board of trustees in conjunction with the district's annual election. The approval shall be printed upon the bonds before they are negotiated.
Source: SL 1997, ch 256, § 23.
46A-10A-121. Record of official acts and proceedings--Filing of financial report--Examination of report.
The board of trustees shall keep and maintain a written record of all their official acts and proceedings. The board of trustees shall, on or before January thirty-first of each year, file a financial report of the previous calendar year with the county auditor. When the Department of Legislative Audit examines other county records, it shall examine the financial report of the board of trustees of the drainage district.
Source: SL 1997, ch 256, § 24.
46A-10A-122. Grievances--Mediation.
Any interested person aggrieved by any action taken by the board of trustees in §§ 46A-10A-98 to 46A-10A-123, inclusive, may file a cause of action in circuit court in the county where the cause of action arose or may invoke mediation with the board of trustees.
Source: SL 1997, ch 256, § 25.
46A-10A-123. Special election--Notice.
Any decision of the board of trustees of a drainage district may be referred to a vote of the eligible voters of the district by the filing of a petition signed by at least five percent of the eligible voters of the district. The petition shall be filed with the district within ninety days following the district's action. Upon receipt of a valid petition, the district shall call a special election, which shall be held within sixty days. The district shall publish notice of the election in the official newspaper of the counties in which the district is located at least twenty days before the election is held. The election shall be conducted by the district in the same manner as the district's annual election is conducted.
Source: SL 1997, ch 256, § 27.
CHAPTER 46A-10B
DRAINAGE BASIN UTILITY DISTRICTS
46A-10B-1 Definition of terms.
46A-10B-2 Counties or municipalities authorized to establish drainage basin utility districts.
46A-10B-3 Joint powers agreement required.
46A-10B-4 Joint powers agreement--Contents.
46A-10B-4.1 Amendment to agreement--Adding to or deleting from district.
46A-10B-5 Hearing required--Timing and attendance.
46A-10B-6 Publication of proposed agreement or amendment prior to hearing--Contents.
46A-10B-7 Approval and execution of agreement--Establishment or adjustment of district.
46A-10B-8 Boundaries.
46A-10B-9 Agreement to designate and define composition of governing body--Requirements--Powers.
46A-10B-10 Certain actions prohibited without county or municipal government approval.
46A-10B-11 Required notice--Contents.
46A-10B-12 Drainage basin utility district as municipal utility.
46A-10B-13 Additional administrative powers of governing body.
46A-10B-14 Effect of chapter upon Water Management Board and certain other state laws.
46A-10B-15 Establishment of district no guarantee flooding or damage will be eliminated.
46A-10B-16 Assessment of basins--Governing body to designate installation of facilities and method of assessment.
46A-10B-17 Benefit versus cost analysis required.
46A-10B-18 Adoption of master drainage plan and stormwater map--Contents--Revisions.
46A-10B-19 Solicitation of entities to carry out plan--Furnishment of maps.
46A-10B-20 Establishment of stormwater basin development and utility fees--Assessments against individual properties.
46A-10B-21 Payment of development fee as condition for development--Purpose and amount of fee.
46A-10B-22 Imposition of stormwater utility fee--Purpose, amount and separate components of fee.
46A-10B-23 Fees deposited in fund--Purpose.
46A-10B-24 Collection of unpaid charges--Lien created--Enforcement of provisions of chapter.
46A-10B-25 Owner's right to dispute fees or other determinations--Petition and hearing.
46A-10B-26 Reduction of fees upon completion or implementation of plan.
46A-10B-27 Application of fees or charges.
46A-10B-28 Accumulation of funds authorized.
46A-10B-29 Issuance of bonds authorized.
46A-10B-30 Drainage report and construction plans--Requirements for subdivision approval.
46A-10B-31 Contract with developer--Reimbursement of actual costs incurred.
46A-10B-32 Collection of charge from abutting property developer--Conditions--Repayment of original installer.
46A-10B-33 Stormwater facility property of governing body--Responsibility for operation and maintenance.
46A-10B-34 Technical assistance provided by Board of Water and Natural Resources and Department of Agriculture and Natural Resources.
46A-10B-35 Board to consider certain provisions and guidelines in establishing ordinances or procedures.
46A-10B-36 Dissolution of district.
46A-10B-37 Content and form of petition for dissolution.
46A-10B-38 Filing of petition.
46A-10B-39 Publication of petition prior to filing--Content.
46A-10B-40 Authority of circuit court to dissolve district.
46A-10B-41 Petition to suspend or cancel project--Content and form.
46A-10B-42 Publication of petition to cancel or suspend project--Requirements.
46A-10B-43 Authority of circuit to suspend or cancel project--Amendment of master plan.
46A-10B-1. Definition of terms.
Terms used in this chapter mean:
(1) "Board," the Board of Water and Natural Resources;
(2) "Department," the Department of Agriculture and Natural Resources;
(3) "Developer" or "subdivider," any person, partnership, limited liability company, joint venture, association, or corporation who participates as owner, promoter, developer, or sales agent in the planning, platting, development, promotion, sale, or lease of a subdivision;
(4) "District," a drainage basin utility district established pursuant to this chapter;
(5) "Drainage basin" or "basin," a natural or artificial land surface depression with or without perceptibly defined beds and banks to which surface runoff gravitates and collectively forms a flow of water continuously or intermittently in a definite direction;
(6) "Facility," any dam, wall, wharf, embankment, levy, dike, pile, abutment, projection, excavation, channel rectification, bridge, conduit, culvert, building, wire, fence, rock, gravel, refuse, fill, structure, or matter planned, constructed, acquired, owned, operated, or renovated by a drainage basin utility district established pursuant to this chapter;
(7) "Flood" or "flooding," a general and temporary condition of partial or complete inundation of normally dry land areas caused by the overflow of inland waters or the unusual and rapid accumulation or runoff of surface waters from any source;
(8) "Governing body," the entity that has been designated to administer the affairs of a drainage basin utility district pursuant to §§ 46A-10B-4 and 46A-10B-9;
(9) "Subdivision," the platting of a lot or the division of a lot, tract, or parcel of land into two or more lots, plots, or sites.
Source: SL 1989, ch 388, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1994, ch 351, § 115; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-10B-2. Counties or municipalities authorized to establish drainage basin utility districts.
Any combination of one or more counties or municipalities may, by joint powers agreement pursuant to chapter 1-24, and subject to the limitations provided in this chapter, establish drainage basin utility districts to enhance the ability of local governments to comply with federal and state water quality standards, or to alleviate conditions in one or more drainage basins that may, because of flooding or other surface drainage, threaten human life, produce severe damage to property, seriously impact the environment, produce serious sociological impact, or cause serious adverse economic impacts in the basin.
Source: SL 1989, ch 388, § 2.
46A-10B-3. Joint powers agreement required.
No drainage basin utility district may be established unless each county and each municipality located wholly or partially within the proposed district has executed a joint powers agreement establishing the district, in accordance with the provisions of this chapter. No district may be established unless at least one county included wholly or partially within the proposed district has a total population greater than forty-five thousand according to the most recent United States census.
Source: SL 1989, ch 388, § 3.
46A-10B-4. Joint powers agreement--Contents.
The joint powers agreement establishing the district, in addition to the requirements of § 1-24-4, shall include the following:
(1) The name of the proposed drainage basin utility district;
(2) A discussion of the need for establishing the proposed district;
(3) A description of the boundaries of the proposed district and a legal description of the lands included in the proposed district;
(4) The names of all counties and municipalities located wholly or partially within the boundaries of the proposed district;
(5) A description of the governing body as provided in § 46A-10B-9;
(6) A map of the proposed district;
(7) A description of some of the potential projects, facilities and programs that may be constructed or implemented by the district;
(8) The names of the counties and municipalities executing the joint powers agreement to establish the district and a resolution by the government of each such county and municipality authorizing execution of the agreement.
Source: SL 1989, ch 388, § 4.
46A-10B-4.1. Amendment to agreement--Adding to or deleting from district.
Lands may be added to or deleted from an existing drainage basin utility district through an amendment to the existing joint powers agreement establishing the district. The amendment shall address all portions of the existing agreement that will be affected by the addition or deletion of land from the district. The amendment may take effect only if:
(1) Each party to the existing joint powers agreement and the municipal or county government of the area to be added or deleted has adopted a resolution approving the amendment in accordance with the provisions of § 46A-10B-7;
(2) A public hearing to consider the amendment has been held in accordance with the provisions of § 46A-10B-5 within the county or municipality from which land will be added or deleted; and
(3) Notice of the hearing has been published in accordance with the provisions of § 46A-10B-6.
Source: SL 1991, ch 375, § 5.
46A-10B-5. Hearing required--Timing and attendance.
Any county or municipality, within two weeks after initially transmitting or receiving a proposed joint powers agreement for the formation of a drainage basin utility district or a proposed amendment to add or delete lands from an existing district, shall, by mutual agreement with the other counties and municipalities included in the proposed district, fix a time and place for a joint public hearing on the establishment of the district. The hearing shall be held not later than sixty days after all counties and municipalities in the proposed district have received the proposed formation agreement. Representatives of each county and each municipality in the proposed district shall be present at the hearing.
Source: SL 1989, ch 388, § 6A; SL 1991, ch 375, § 1.
46A-10B-6. Publication of proposed agreement or amendment prior to hearing--Contents.
At least once each week for two successive weeks before the hearing required in § 46A-10B-5, each county or municipality in the proposed or existing district shall publish a summary of the proposed joint powers agreement or amendment and a notice of the hearing in its official newspaper. The publication shall include the time and place of the hearing; the address to which written comments may be sent; and a statement that the proposed agreement or amendment will be heard and acted upon by the governments of each county and each municipality in the proposed district, that the district may be established or its boundaries adjusted without election by agreement of each county and municipality in the proposed district, and that the proposed district would be authorized to assess utility fees against property in the district.
Source: SL 1989, ch 388, § 7A; SL 1991, ch 375, § 2.
46A-10B-7. Approval and execution of agreement--Establishment or adjustment of district.
If the government of each county and municipality included within the proposed district approves and executes the joint powers agreement or amendment establishing the district or adjusting its boundaries within forty-five days after the public hearing held pursuant to § 46A-10B-5, the drainage basin utility district is established or its boundaries are adjusted. The district's governing body shall file with the secretary of state a true copy of the agreement establishing the district or adjusting its boundaries.
Source: SL 1989, ch 388, § 10A; SL 1991, ch 375, § 3.
46A-10B-8. Boundaries.
The joint powers agreement establishing a drainage basin utility district shall delineate the boundaries of the district as provided in § 46A-10B-4. The boundaries of the district shall conform with the boundaries of one or more drainage basins to the extent that such basins lie within the borders of the counties in the district. The drainage basins included within the district shall be adjacent and the property within the district shall be contiguous.
Source: SL 1989, ch 388, § 11; SL 1991, ch 375, § 4.
46A-10B-9. Agreement to designate and define composition of governing body--Requirements--Powers.
The joint powers agreement establishing a drainage basin utility district shall designate and define the composition and powers of the governing body of the district, consistent with the provisions of this chapter. The governing body shall include at least two representatives of each county and each municipality included wholly or partially within the district, and each representative shall have one vote on matters coming before the governing body.
Matters coming before the governing body shall be decided by majority vote of the representatives included in the governing body. The governing body shall annually elect from among its membership a chairman, vice-chairman, secretary, and treasurer, and the governing body may employ staff as necessary, pursuant to § 46A-10B-13.
Source: SL 1989, ch 388, § 12.
46A-10B-10. Certain actions prohibited without county or municipal government approval.
The governing body may take none of the following actions without approval by the affected governments of each county and each municipality included wholly or partially within the district:
(1) Establishment of, and any increase in, fees levied pursuant to § 46A-10B-20, 46A-10B-21, or 46A-10B-22;
(2) Approval of any contract for planning, construction, repair, renovation, demolition, or dismantling of any district project or facility;
(3) Approval or amendment of the master drainage plan pursuant to § 46A-10B-18;
(4) The issuance of bonds pursuant to § 46A-10B-29; or
(5) Reimbursement of costs pursuant to § 46A-10B-31.
Source: SL 1989, ch 388, § 12A; SL 1991, ch 375, § 6.
46A-10B-11. Required notice--Contents.
Upon establishment of a drainage basin utility district, the governing body shall notify in writing the governments of each county, municipality, water development district, water project district, or watershed district located wholly or partially within the district. The notification shall include, at a minimum, a statement that the district has been established, the date of establishment, the name of the district, the boundaries of the district, and the name of the governing body of the district. The notification shall also include a statement that the governing body of the district may exercise its authority over all areas of the district, and a statement that the governing body may assess utility fees in the district as provided in this chapter.
Source: SL 1989, ch 388, § 14.
46A-10B-12. Drainage basin utility district as municipal utility.
Any drainage basin utility district, whether it is located inside or outside the boundaries of a municipality, is a municipal utility as defined in § 9-40-2. In administering the affairs of the district, the governing body may exercise, in addition to the powers granted in this chapter, the statutory powers granted to municipalities for the operation and administration of municipal utilities.
Source: SL 1989, ch 388, § 15.
46A-10B-13. Additional administrative powers of governing body.
In addition to the powers granted in statute regarding municipal utilities, the governing body, in administering the affairs of the drainage basin utility district, may do the following:
(1) Assess and collect utility fees as provided in this chapter;
(2) Designate a director, employ staff, and provide equipment, supplies, and materials as necessary to administer the business of the district;
(3) Sue and be sued;
(4) Incur debts and liabilities;
(5) Issue bonds as provided in this chapter;
(6) Accept funds, property, and services or other assistance, financial or otherwise, from federal, state, and other public and private sources to carry out the purposes of this chapter;
(7) Contract or cooperate with any person, the state, or any political subdivision of the state, any federal agency, or any private or public corporation to carry out the purposes of this chapter;
(8) Contract with any county or municipality for the assessment and collection of any fees levied pursuant to this chapter;
(9) Acquire, hold, use, rent, lease, or dispose of any real and other property as necessary to carry out the purposes of this chapter, including property outside the boundaries of the district;
(10) Accumulate funds in one or more reserve funds as provided in this chapter to carry out the purposes of this chapter; and
(11) Plan, develop, construct, acquire, operate, clean, maintain, repair, alter, renovate, salvage, demolish, abandon, consolidate, reclaim, or gather data and information concerning any natural or artificial watercourse, dam, dike, reservoir, or other works, development, structure, facility, project, or program necessary to carry out the purposes of this chapter.
Source: SL 1989, ch 388, § 19.
46A-10B-14. Effect of chapter upon Water Management Board and certain other state laws.
The provisions of this chapter do not abrogate or limit the rights, powers, duties, and functions of the State Water Management Board with reference to water rights, flood control, outlet elevations for public lakes, or ordinary high and low water marks on public lakes, but are supplementary thereto. This chapter does not limit or affect the laws of this state relating to organization and maintenance of irrigation districts, water user districts, water project districts, water development districts, conservation districts, or watershed districts, nor does it infringe upon or establish any rights superior to any existing water rights.
Source: SL 1989, ch 388, § 20.
46A-10B-15. Establishment of district no guarantee flooding or damage will be eliminated.
This chapter or the establishment of a drainage basin utility district pursuant to this chapter does not imply that property liable for the fees and charges established pursuant to this chapter will always be free from stormwater flooding or flood damage. This chapter does not purport to reduce the need or the necessity for the owner obtaining flood insurance.
Source: SL 1989, ch 388, § 21.
46A-10B-16. Assessment of basins--Governing body to designate installation of facilities and method of assessment.
The governing body shall separately assess each basin within the district for facilities to be installed to serve each basin and to provide adequate drainage in each basin. The governing body shall designate the facilities to be installed, the time and schedule for installation of facilities, and the method of assessing costs of facilities to be installed against property in the basin.
Source: SL 1989, ch 388, § 22.
46A-10B-17. Benefit versus cost analysis required.
The governing body shall analyze each project and compare the total benefits to be achieved with the anticipated cost of the project. Projects shall be considered if the analysis indicates that the total benefits are greater than the cost of the project.
Source: SL 1989, ch 388, § 23.
46A-10B-18. Adoption of master drainage plan and stormwater map--Contents--Revisions.
The governing body shall prepare and adopt by resolution or ordinance a master drainage plan for district facilities. The plan shall include proposed projects, facilities and programs and proposed methods of funding the master drainage plan. The governing body shall also adopt by resolution a stormwater map delineating the boundaries of the basins included in the district. The map may also indicate existing development of properties within the basin, zoning of properties, and other appropriate information. The map shall serve as official designation of the respective basins of the district, but the map may be revised from time to time by the governing body to conform with existing conditions. The governing body may amend the master drainage plan or adopt a subsequent master drainage plan if the original master drainage plan has been completed. The original plan and any amendment of the plan is not effective as to any county or municipality included wholly or partially within the district unless such county or municipality has approved, by resolution, the plan or the amendment.
Source: SL 1989, ch 388, § 24.
46A-10B-19. Solicitation of entities to carry out plan--Furnishment of maps.
The governing body shall solicit all other affected public entities to cooperate in providing drainage facilities to carry out the drainage plan. Maps showing all basins and proposed facilities shall be furnished to the entities for their use in this matter.
Source: SL 1989, ch 388, § 25.
46A-10B-20. Establishment of stormwater basin development and utility fees--Assessments against individual properties.
After delineating drainage basins pursuant to § 46A-10B-18, the governing body may establish by ordinance stormwater basin development fees and stormwater utility fees to be paid by the developers or owners of property in each basin in the district as provided in §§ 46A-10B-21 and 46A-10B-22. The fees shall be sufficient to construct, operate, and maintain the facilities needed in the basin and may be expended to carry out the purposes of this chapter. The amount of the fees assessed against individual properties and the method of calculating and collecting the fees shall be established by ordinance. Assessments against individual properties shall be on a per-square-foot basis, but the amount of the fee assessed per square foot against individual properties in a basin may not necessarily be equal in all cases. The governing body may vary the amount dependent upon the type of improvements that are on the property or that may be placed on the property under the existing zoning as such improvements relate to the stormwater or runoff water that may be discharged from the property. Agricultural land as defined in § 10-6-112 is exempt from the fees established in this section and in §§ 46A-10B-21 and 46A-10B-22.
Source: SL 1989, ch 388, § 26; SL 1990, ch 364, § 1; SL 2021, ch 44, § 44.
46A-10B-21. Payment of development fee as condition for development--Purpose and amount of fee.
In the case of a lot or parcel of land upon which a building has not been erected, the governing body may require the payment of a stormwater basin development fee as a condition for the development of the property. The stormwater basin development fee is payable prior to the approval of the final plat of the subdivision or, in the case of unplatted property, prior to the issuance of a building permit. The fee is intended to pay for the design, right-of-way acquisition, and construction or reconstruction of stormwater facilities needed to protect the health, safety, and welfare of the inhabitants of the various basins. The stormwater basin development fee shall be paid by the developer and shall be based upon the cost of necessary facilities to be constructed, the area of each parcel of land, the runoff characteristics of the parcel and the amount of on-site stormwater detention, if any, provided. The governing body shall determine the rates that apply to each parcel of land within the guidelines established by ordinance pursuant to § 46A-10B-20, but the stormwater basin development fee for any parcel of land within the district may be no less than one hundred dollars and no more than eight hundred dollars per subdivided lot. The eight hundred dollar limit does not apply to nonresidential developments.
Source: SL 1989, ch 388, § 27; SL 1990, ch 364, § 2.
46A-10B-22. Imposition of stormwater utility fee--Purpose, amount and separate components of fee.
The governing body may impose on each parcel of land or developed lot within the district a stormwater utility fee. This fee is intended to pay for the planning, operation, maintenance, administration, and routine functions of the existing stormwater facilities within the district and the planning, operation, maintenance, and administration of future stormwater facilities that may be established within the district and to pay for the design, right-of-way acquisition, and construction or reconstruction of stormwater facilities and to capitalize a revolving loan fund to be used for authorized functions of the district. The stormwater utility fee may be separated into a revolving loan component, a capital improvements component, and an operation and maintenance component and shall be based upon the area of each lot or parcel of land, the runoff characteristics of the lot or parcel, and the basin in which the lot or parcel is located. The governing body shall determine the rates that apply to each specific lot or parcel of land within the guidelines established by ordinance pursuant to § 46A-10B-20. For any residential lot or parcel of real property within the district, the capital improvements component of the stormwater utility fee may be no less than fifty cents per month and no more than two dollars per month, and the operation and maintenance component of the stormwater utility fee may be no more than one dollar per month. The revolving loan component may be collected in advance for planning purposes over the entire district. However, the fee imposed pursuant to this section on any residential lot or parcel of real property may not exceed three dollars per month.
Source: SL 1989, ch 388, § 28; SL 1990, ch 364, § 3; SL 1991, ch 375, § 7; SL 1992, ch 320, § 1.
46A-10B-23. Fees deposited in fund--Purpose.
The governing body shall place all fees collected pursuant to §§ 46A-10B-20, 46A-10B-21, and 46A-10B-22 into a storm drainage fund or other fund established pursuant to § 46A-10B-28 to be used only for the purposes provided in this chapter, and reserved for the identified drainage basin for which fees are collected. If a municipality establishes a new drainage utility pursuant to § 9-40-1, it may transfer any funds within its control that were collected pursuant to this chapter into a separate drainage utility fund which may only be used to pay for new drainage improvements, maintenance of existing drainage improvements, and operation of the drainage utility.
Source: SL 1989, ch 388, § 29; SL 2013, ch 39, § 1.
46A-10B-24. Collection of unpaid charges--Lien created--Enforcement of provisions of chapter.
Any charge made pursuant to this chapter that is not paid when due may be recovered in an action at law by the governing body. Any stormwater utility fee or stormwater basin fee made pursuant to this chapter is a lien upon the property to which the fee is associated from the date the fee becomes due until the fee is paid. The lien shall be recorded in the office of the county register of deeds by the governing body. The owner of property subject to fees established pursuant to § 46A-10B-20 is obligated to pay the fee. The obligation may be enforced by the governing body in the same manner as delinquent property taxes are enforced. The employees of the governing body may, at all reasonable times, have access to any premises served by the governing body for inspection, repair, or the enforcement of the provisions of this chapter.
Source: SL 1989, ch 388, § 30; SL 1991, ch 375, § 8.
46A-10B-25. Owner's right to dispute fees or other determinations--Petition and hearing.
Any owner who disputes the amount of a stormwater utility fee or a stormwater basin fee made against the owner's property or who disputes any determination made by the governing body pursuant to this chapter may petition the governing body for a hearing on a revision or modification of the charge or determination. The governing body may hold the hearing or may designate an officer or employee as a hearing officer with authority to hold the hearing. A petition may be filed only once in connection with any charge or determination, except upon a showing of changed circumstances sufficient to justify the filing of an additional petition.
The petition shall be in writing, filed with the governing body, and the facts and figures submitted shall be submitted under oath either in writing or orally at a hearing scheduled by the governing body. The hearing, if any, shall take place in the district, and notice of the hearing and the proceedings shall be in accordance with ordinances adopted by the governing body.
Source: SL 1989, ch 388, § 31.
46A-10B-26. Reduction of fees upon completion or implementation of plan.
When all projects, facilities, and programs specified in the master drainage plan have been completed or implemented, any stormwater utility fees established pursuant to § 46A-10B-22 shall be reduced to a level not to exceed the amount necessary to properly operate and maintain the existing projects, facilities, and programs of the district.
Source: SL 1989, ch 388, § 32.
46A-10B-27. Application of fees or charges.
Any fee or charge paid pursuant to this chapter may be used solely to pay for the costs of operation, repair, maintenance, improvements, renewal, replacement, reconstruction, design, right-of-way acquisition, and construction of public stormwater facilities, for purposes authorized in § 46A-10B-13, or to pay the governing body's accounting, management, or administration expenses incurred in the implementation of this chapter.
Source: SL 1989, ch 388, § 33.
46A-10B-28. Accumulation of funds authorized.
In addition to or in lieu of the separate and special funds authorized in § 9-40-16, the governing body may accumulate funds in a storm drainage fund or other capital reserve fund or operations and maintenance fund established by ordinance or resolution of the governing body. No accumulated funds may revert at the end of the fiscal year, and the governing body may make expenditures from the fund to carry out the purposes of this chapter.
Source: SL 1989, ch 388, § 34.
46A-10B-29. Issuance of bonds authorized.
The governing body may issue bonds pursuant to § 9-40-5 and chapter 6-8B to carry out the purposes of this chapter. If the amount of the bond issue does not exceed an amount that can economically be paid by district revenues during the term of the bond, no election on the question of issuing the bonds is required.
Source: SL 1989, ch 388, § 35.
46A-10B-30. Drainage report and construction plans--Requirements for subdivision approval.
Prior to the final approval of the plat of any subdivision, the owners of the property being subdivided shall at the owners' cost prepare a detailed drainage report and construction plans for the installation of all stormwater facilities required for the subdivision, including any off-site facilities required to convey stormwater to existing drains, channels, streams, detention ponds, or other points, all in conformity with the master drainage plan of the district and the design criteria and construction standards adopted by the governing body and the board. The governing body shall review the reports, plans, and cost estimates. The governing body may approve the plat of the subdivision if the governing body has been furnished with acceptable assurance that the facilities will be constructed and installed as indicated and approved.
Source: SL 1989, ch 388, § 36.
46A-10B-31. Contract with developer--Reimbursement of actual costs incurred.
If the governing body contracts with a developer to construct stormwater facilities that serve more than that development and are identified in the master drainage plan, the actual costs incurred are eligible for reimbursement in accordance with ordinances adopted by the governing body.
Source: SL 1989, ch 388, § 37.
46A-10B-32. Collection of charge from abutting property developer--Conditions--Repayment of original installer.
If the developer enters into a repayment agreement pursuant to § 46A-10B-31, with the governing body within ninety days of the completion and approval by the governing body of the drainage improvement or facility, then at the time the property abutting the off-site stormwater facility is developed and a building permit is issued, the governing body may assess a charge per front foot to the abutting property developer within the district, and if collected, the governing body shall repay the original installer after deducting a service charge not to exceed three percent to cover administrative costs. All costs for the original construction of the stormwater facility shall be fully paid by the installer before the installer is entitled to repayment under any agreement established pursuant to this chapter. The governing body shall adopt ordinances specifying procedures and requirements governing any repayment made pursuant to this section. Stormwater basin development fees paid by the developer pursuant to § 46A-10B-21 are not eligible for reimbursement under this section or § 46A-10B-31.
Source: SL 1989, ch 388, § 38.
46A-10B-33. Stormwater facility property of governing body--Responsibility for operation and maintenance.
Any stormwater facility constructed, installed, or provided pursuant to this chapter, and formally accepted by the governing body, is the property of the governing body. The governing body thereafter is responsible for the operation and maintenance of the facility.
Source: SL 1989, ch 388, § 39; SL 1992, ch 320, § 2.
46A-10B-34. Technical assistance provided by Board of Water and Natural Resources and Department of Agriculture and Natural Resources.
The Board of Water and Natural Resources and the Department of Agriculture and Natural Resources shall provide technical assistance upon request of the governing body.
Source: SL 1989, ch 388, § 40; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-10B-35. Board to consider certain provisions and guidelines in establishing ordinances or procedures.
In establishing the ordinances or procedures required by this chapter, the board or the governing body shall consider the provisions of chapter 26, article vii, Ft. Collins code of the City of Ft. Collins, Colorado; any guidelines, standards or policies developed by the Urban Land Institute; and stormwater design criteria as established by the United States Environment Protection Agency.
Source: SL 1989, ch 388, § 41; SL 1993, ch 256, § 85.
46A-10B-36. Dissolution of district.
A drainage basin utility district may be dissolved only by an act of the Legislature, by joint powers agreement of each county and each municipality included within the district or by a petition for dissolution of the district signed by at least two-thirds of the owners of real property in the district.
Source: SL 1989, ch 388, § 42.
46A-10B-37. Content and form of petition for dissolution.
Each person who signs the petition for dissolution shall add to the person's signature, in the person's own handwriting, the person's place of residence, a legal description of the person's real property within the district, and the date of signing. The petition may contain more than one page, each page shall have identical headings, and any number of identical petition forms may be circulated and each be a part of the petition. Every page of the petition containing signatures shall have upon it and below the signatures an affidavit by the circulator in substantially the following form:
STATE OF SOUTH DAKOTA )
) SS
COUNTY OF ________________ )
I, the undersigned __________, being first duly sworn, depose and say, that I am the circulator of the foregoing petition containing __________ signatures; that each person whose name appears on the petition sheet personally signed the petition in my presence; that I believe that each of the signers is a resident at the address written opposite the signer's name; and that I stated to every petitioner before the person affixed his or her signature the legal effect and nature of the petition.
____________________________
Circulator
Subscribed and sworn to before me this __________ day of ______, 20____.
____________________________
Notary Public
Source: SL 1989, ch 388, § 44; SL 2011, ch 165, § 502.
46A-10B-38. Filing of petition.
The petition for dissolution shall be filed with the circuit court no more than ninety days after the creation of the district.
Source: SL 1989, ch 388, § 45.
46A-10B-39. Publication of petition prior to filing--Content.
At least once each week for two successive weeks before filing the petition for dissolution with the circuit court, the person filing the petition shall publish the petition and a notice of the filing in an official newspaper in each county in which land of the drainage basin utility district is located. The publication shall include the address to which written comments may be sent and a statement that the petition will be heard and acted upon by the circuit court, that the district was established without election, that the district is operated and administered by the governing body as designated in the petition and that the district is authorized to assess utility fees against property in the district.
Source: SL 1989, ch 388, § 46.
46A-10B-40. Authority of circuit court to dissolve district.
If a petition for dissolution is filed with the circuit court as provided in this chapter, the court may dissolve the district.
Source: SL 1989, ch 388, § 47.
46A-10B-41. Petition to suspend or cancel project--Content and form.
Two-thirds of the owners of real property within the district may petition the circuit court to suspend or cancel a project, facility, or program of the district that has been planned or is underway. A petition for cancellation or suspension of a project shall be in the same form as a dissolution petition as provided in § 46A-10B-37 and shall also include the following information:
(1) The name of the drainage basin utility district;
(2) A description of the project, facility, or program to be cancelled or suspended;
(3) A statement of the reasons for the cancellation or suspension of the project, facility, or program; and
(4) The name, address, and phone number of the petition circulator.
Source: SL 1989, ch 388, § 48.
46A-10B-42. Publication of petition to cancel or suspend project--Requirements.
At least once each week for two successive weeks before filing a petition with the circuit court to cancel or suspend a district project, facility, or program, the person filing the petition shall publish a notice of the filing in an official newspaper in each county in which land of the drainage basin utility district is located. The publication shall include a summary of the purpose and contents of the petition, the address to which written comments may be sent and a statement that the petition will be heard and acted upon by the circuit court.
Source: SL 1989, ch 388, § 48A.
46A-10B-43. Authority of circuit to suspend or cancel project--Amendment of master plan.
If the circuit court receives a valid petition signed by at least two-thirds of the owners of real property in the district for cancellation or suspension of a district project, facility, or program pursuant to § 46A-10B-41, the circuit court may suspend or cancel the project and the governing body shall amend accordingly the master drainage plan as provided in § 46A-10B-18.
Source: SL 1989, ch 388, § 49.
46A-11-1
Resolution establishing drainage project--Filing of certified copy with register of
deeds--Contents--Recording and indexing--Constructive notice.
46A-11-2
Apportionment of benefits of proposed drainage project by board of county
commissioners--Equalization of benefits, notice, publication, and posting.
46A-11-3
Matters considered in fixing and equalizing benefits.
46A-11-4
Hearing on equalization of benefits--Determination by board--Revision procedure.
46A-11-5
Assessment by board--Cost of establishment.
46A-11-6
Assessment--Certified copy filed with county treasurer--Notice.
46A-11-7
Assessment due and payable from time of filing of certified copy--Lien--Penalty and
interest on delinquencies--Payment--Distribution.
46A-11-8
Assessment certificates--Issuance--Form and contents--Rights of holder--Enforcement.
46A-11-9
Assessments for further costs of construction.
46A-11-10
Assessments as work progresses--One assessment sufficient where no damages are
payable or damages have been paid with warrants.
46A-11-11
Agreement of contractors to take assessment certificates or warrants for services--Assessment for entire balance of cost of construction--Lien of assessment--Enforcement--Sale of assessment certificates, purpose.
46A-11-12
Assessments paid to county treasurer--Distribution.
46A-11-13
Assessments for drainage, payment in installments--Agreement of taxpayer with
county auditor--Assessment certificates, coupon form.
46A-11-14
Assessments for drainage, payment in installments--Time installments due--Penalty
on delinquencies.
46A-11-15
Discharge of assessments for drainage--Land not discharged until bond issue paid.
46A-11-16
Assessments of school and public lands for construction of drainage project--Certification by county auditor--Payment.
46A-11-17
Assessments for drainage against municipalities--Tax levy by municipal officials--Enforcement and collection.
46A-11-18
Payment of drainage assessments against townships--Unorganized townships.
46A-11-19
Assessments for drainage--Enforcement by county treasurer, sale of property.
46A-11-20
Assessments upon land in other counties--Payment to treasurer of county in charge
of drainage--Delinquent assessments.
46A-11-21
Repealed.
46A-11-22
Cancellation of installments of assessment--Reassessment with further assessments--Issuance of bonds--Consideration of payments by landowner on account of previous
assessments or penalties accrued for nonpayment.
46A-11-23
Levy of costs over several years--Fixing annual levy--Bond issue--Terms of bonds.
46A-11-24
Drainage bonds--Execution--Purpose of issue--Negotiation--Recital--Charge against
lands.
46A-11-25
Drainage bonds--County not liable for payment--Payment from assessments.
46A-11-26
Assessments payable to treasurer of county in which assessed land is situated--Issuance of bonds by joint action of boards--Laws governing.
46A-11-27
Additional bonds, issuance--Cost of proposed drainage exceeding estimated cost--New apportionment of assessments--Certification of assessments finally fixed to
county treasurer--Money collected by county treasurer on assessments to be paid to
bondholders.
46A-11-28
Separate accounts for drainage projects.
46A-11-1. Resolution establishing drainage project--Filing of certified copy with register of deeds--Contents--Recording and indexing--Constructive notice.
If an intrastate drainage project is established under the provisions of this chapter or chapter 46A-10A, the auditor of the county wherein such drainage project or portion thereof is situated shall file in the office of the register of deeds of the county a certified copy of the resolution establishing the drainage project. The resolution shall contain a description of each lot, parcel, and tract of land situated within the drainage project and affected by proceedings establishing the project. The resolution shall be recorded and indexed against each lot, parcel, and tract of land described in the resolution. No recording fee may be charged and the recording shall constitute constructive notice of establishment of the drainage project, to all subsequent purchasers and encumbrancers of such premises.
Source: SDC 1939, § 61.1006; SDCL, § 46-21-1; SL 1985, ch 362, § 98.
46A-11-2. Apportionment of benefits of proposed drainage project by board of county commissioners--Equalization of benefits, notice, publication, and posting.
After establishment of a project and fixing of damages, if any, the board shall determine the proportion of benefits of the proposed project among the lands affected and shall set a time and place for equalizing the benefits. The benefit determined for any tract of land shall be in the form of a ratio or percentage in comparison to the average tract of land found most likely to receive average benefit pursuant to § 46A-10A-61. Notice of equalization of benefits shall be by publication at least once a week for two consecutive weeks in a legal newspaper of the county, as designated by the board. The notice shall describe each tract of land affected by the proposed project and shall state the names of its owners as appear in the tax records in the county treasurer's office. The notice shall list the proportion of benefits fixed for each tract of property, taking each particular tract as a unit, and shall notify all such owners of the opportunity to show cause why the proportion of benefits should not be fixed as stated.
Source: SDC 1939, § 61.1007; SDCL, § 46-21-2; SL 1985, ch 362, § 99.
46A-11-3. Matters considered in fixing and equalizing benefits.
Benefits which any county, municipality, township, railroad company, corporation, or other property owner may obtain for its property by construction of the project shall be fixed and equalized together with the proportion of benefits to tracts of land. Benefits shall accrue directly by construction of the project or indirectly by virtue of the project operating as an outlet for connection drains that may be subsequently constructed. Indirect benefits including those due to improved public welfare, may be assessed against any county or political subdivision affected as a whole, at the option of the board.
Source: SDC 1939, § 61.1007; SDCL, § 46-21-3; SL 1985, ch 362, § 100; SL 1992, ch 60, § 2.
46A-11-4. Hearing on equalization of benefits--Determination by board--Revision procedure.
After a hearing on equalization of benefits, the board shall equalize and fix benefits, subject to revision, if necessary. If revision is necessary, notice and procedure shall be as required by § 46A-11-2 for equalization and fixing of benefits. If any moneys have been paid under an abandoned or invalid proportion of benefits, that shall be considered and an equitable adjustment shall be made in the next assessment.
Source: SDC 1939, § 61.1007; SDCL, § 46-21-4; SL 1985, ch 362, § 101.
46A-11-5. Assessment by board--Cost of establishment.
After equalization of benefits, the board may make an assessment against each tract and property affected, in proportion to the benefits as equalized, to pay damages and project costs incurred. Costs shall include expenses of the board, surveyors and assistants, plans and profiles, publication and filing, other fees, interest on bonds issued or to be issued, and all other expenses incurred that contribute to establishment or construction of the project.
Source: SDC 1939, § 61.1008; SDCL, § 46-21-5; SL 1985, ch 362, § 102.
46A-11-6. Assessment--Certified copy filed with county treasurer--Notice.
Thirty days after an assessment is made, a copy certified by the county auditor shall be filed by him with the county treasurer. However, before it is filed, the board shall give notice of the time of filing, by publication at least once in each week for two consecutive weeks in an official newspaper in the county as designated by the board. The notice shall contain a description of the property assessed, the name of the owner as it appears in the assessment, the amount of each assessment, including the amount assessed against the county any municipality, township, or railroad company, and the date when the assessment will become delinquent, plus any penalty and the date from which interest will be charged.
Source: SDC 1939, § 61.1008; SL 1985, ch 362, § 103; SL 1992, ch 60, § 2.
46A-11-7. Assessment due and payable from time of filing of certified copy--Lien--Penalty and interest on delinquencies--Payment--Distribution.
An assessment is due from the time a certified copy is filed in the treasurer's office. Perpetual liens shall attach against assessed tracts, except those owned by the state and the United States, and, if an assessment is not paid within thirty days, a penalty of five percent shall attach and the assessment shall bear interest from the date of the order of the assessment at the Category D rate of interest as established in § 54-3-16, payable annually. The assessment shall be paid to the county treasurer and remitted to the holders of assessment certificates upon order of the board.
Source: SDC 1939, § 61.1008; SDCL, § 46-21-7; SL 1983, ch 28, § 58; SL 1984, ch 319, § 29; SL 1985, ch 362, § 104.
46A-11-8. Assessment certificates--Issuance--Form and contents--Rights of holder--Enforcement.
A board may issue separate assessment certificates against each tract assessed for the amount of its assessment and may sell them at not less than par value with accrued interest or may contract to pay for construction of the project with assessment certificates or with warrants. Any assessment certificate shall refer to the record, in the office of the county auditor, of the order of assessment and the copy in the county treasurer's office, shall transfer to the holder all interest, claim, or right in the assessment, and shall bear the same rate of interest, carry a property lien and be enforceable as provided by law.
Source: SDC 1939, § 61.1008; SDCL, § 46-21-8; SL 1985, ch 362, § 105.
46A-11-9. Assessments for further costs of construction.
After damages arising from establishment and construction of a project are paid and lands for the drainage are taken, assessments may be made for further costs of construction.
Source: SDC 1939, § 61.1011; SDCL, § 46-21-9; SL 1985, ch 362, § 106.
46A-11-10. Assessments as work progresses--One assessment sufficient where no damages are payable or damages have been paid with warrants.
If no damages are required to be paid before taking lands for a project or if damages have been paid by proceeds from the sale of warrants, only one assessment need be made. However, the board may make several assessments as work progresses.
Source: SDC 1939, § 61.1011; SDCL, § 46-21-10; SL 1985, ch 362, § 107.
46A-11-11. Agreement of contractors to take assessment certificates or warrants for services--Assessment for entire balance of cost of construction--Lien of assessment--Enforcement--Sale of assessment certificates, purpose.
If project contractors agree to take assessment certificates or warrants for their services, assessments need not be made until the completion of the work. At that time an assessment shall be made for the entire balance of cost of construction, including services of the board, surveyors and assistants, plans and profiles, publication and filing, other fees, interest on bonds, and all expenses that contribute to establishment and construction of the project. Notice of the assessment shall be given by the board in the same manner as required for any other assessment under this chapter. Such assessment and any certificates issued thereon shall provide perpetual liens upon tracts assessed, shall be interest-bearing, and shall be enforceable in the same manner as any other assessment and certificates. The board may sell such assessment certificates at not less than par value to raise funds to defray the cost of project establishment and construction.
Source: SDC 1939, § 61.1011; SL 1985, ch 362, § 108.
46A-11-12. Assessments paid to county treasurer--Distribution.
Assessments shall be paid to the county treasurer and assessment proceeds shall be remitted to the holders of assessment certificates upon order of the board for the particular project.
Source: SDC 1939, § 61.1011; SDCL, § 46-21-12; SL 1985, ch 362, § 109.
46A-11-13. Assessments for drainage, payment in installments--Agreement of taxpayer with county auditor--Assessment certificates, coupon form.
Any owner of any tract of land against which an assessment for drainage is made who, within thirty days after the making of the assessment, files with the county auditor an agreement in writing that he will pay the assessment with interest as fixed by the board shall be allowed to pay the assessment in ten annual installments with interest payable annually. Assessment certificates may not issue until after expiration of the period for filing such agreements and, if issued as payable in installments, may be issued in coupon form.
Source: SDC 1939, § 61.1015; SDCL, § 46-21-13; SL 1985, ch 362, § 110.
46A-11-14. Assessments for drainage, payment in installments--Time installments due--Penalty on delinquencies.
The first installment under an agreement filed pursuant to § 46A-11-13 shall be payable within ten days after a certified copy of the assessment has been filed in the office of the county treasurer. Subsequent installments shall be payable each year for one to nine years from the date of an assessment, with interest on the entire amount unpaid payable annually at maturity of each installment. Subsequent installments shall become delinquent after expiration of thirty days from the time they are payable and a penalty of five percent shall attach. If, however, bonds have been issued for construction of the project, as provided in this chapter, assessments shall be payable in installments sufficient to meet payments on the bonds.
Source: SDC 1939, § 61.1015; SDCL, § 46-21-14; SL 1985, ch 362, § 111.
46A-11-15. Discharge of assessments for drainage--Land not discharged until bond issue paid.
Assessments may be paid in full at any time and full discharge given by the county treasurer to any landowner. However, if bonds have been issued, a payment of assessment may not operate as a discharge of the land from its liability in favor of the bonds until the entire principal and interest have been fully paid.
Source: SDC 1939, § 61.1015; SDCL, § 46-21-15; SL 1985, ch 362, § 112.
46A-11-16. Assessments of school and public lands for construction of drainage project--Certification by county auditor--Payment.
Any assessment against lands described in § 46A-10A-56 for construction of a drainage project shall be certified by the county auditor of the county in which the project is located to the board or officer having charge of the lands. If sufficient funds are under control of the officer or board from which payment of the assessment can be made, it shall be made. If sufficient funds are not available, the officer or board shall approve the assessment and certify it to the state auditor, who shall pay the assessment from money available for that purpose. If no money is available, the state auditor shall request the Legislature to provide an appropriation for payment of the assessment. The payment shall be made to the treasurer of the county in which the lands are located. No penalty other than interest may attach to any such land after an assessment becomes delinquent and the land may not be sold to enforce delinquent assessments.
Source: SDC 1939, § 61.1201; SDCL § 46-21-16; SL 1985, ch 362, § 113; SL 2011, ch 165, § 503.
46A-11-17. Assessments for drainage against municipalities--Tax levy by municipal officials--Enforcement and collection.
If an assessment for drainage or installment has been made against any county, municipality, or township, the officers of the unit of government whose duty it is to levy taxes shall at the next annual tax levy make a levy for drainage purposes in an amount necessary to pay the assessment and remit it to the proper officers as provided for other taxes. The levy and tax shall be enforced and collected in all respects as are other taxes.
Source: SDC 1939, § 61.1008; SDCL, § 46-21-17; SL 1985, ch 362, § 114; SL 1992, ch 60, § 2.
46A-11-18. Payment of drainage assessments against townships--Unorganized townships.
Any surplus remaining in any fund at the close of a fiscal year may be used by a township to pay and apply toward any drainage assessment. In unorganized townships, the board may pay for drainage from any money of the unorganized township. Each succeeding year a like levy shall be made by local officials until the entire assessment is paid.
Source: SDC 1939, § 61.1008; SDCL, § 46-21-18; SL 1985, ch 362, § 115.
46A-11-19. Assessments for drainage--Enforcement by county treasurer, sale of property.
Assessments for drainage or installments shall be enforced by the county treasurer by sale of property at an annual tax sale. However, no late assessment or installment may be included in the sale for any year unless it was delinquent on or before August first of that year. Any provisions of law relating to collection of general taxes, redemption from taxes, and issuance of tax deeds shall apply to enforcement of a lien or drainage assessment if applicable, except that a treasurer's deed issued upon a delinquent drainage assessment shall state that the title is subject to claims which the state or any political subdivision may have against the title for annual taxes.
Source: SDC 1939, § 61.1008; SDCL, § 46-21-19; SL 1985, ch 362, § 116.
46A-11-20. Assessments upon land in other counties--Payment to treasurer of county in charge of drainage--Delinquent assessments.
Any assessment made by a board upon land in another county shall be paid to the county treasurer of the county having charge of the project. If the assessment becomes delinquent, the treasurer of the county having charge of the project shall certify the amount delinquent on any separate tract of land outside of the county to the treasurer of the county in which the land is situated. That treasurer shall collect the assessment as provided by this chapter and shall remit the collections to the treasurer of the county having charge of the project within thirty days.
Source: SDC 1939, § 61.1036; SDCL § 46-21-20; SL 1985, ch 362, § 117; SL 2011, ch 165, § 504.
46A-11-22. Cancellation of installments of assessment--Reassessment with further assessments--Issuance of bonds--Consideration of payments by landowner on account of previous assessments or penalties accrued for nonpayment.
Installments of any assessment which has been made under the provisions of this chapter, including those past due, if no delinquent assessments have been sold and no bonds issued, at the discretion of the board may be canceled and reassessed separately or together with any further assessment. However, the reassessment, in lieu of unpaid installments, shall be in the same amount as the canceled installments. The board may issue bonds to be paid from funds obtained by such new assessment in accordance with the provisions of this chapter. If any assessment is canceled for purpose of reassessment, either singly or in conjunction with other assessments, consideration shall be given to payments made on account of previous assessments and to penalties or interest accrued on account of nonpayment or delinquency in payment of any previous assessment and such amounts shall be deducted from or added to the final assessments in the amounts paid or accrued.
Source: SDC 1939, § 61.1016; SDCL, § 46-21-22; SL 1985, ch 362, § 119.
46A-11-23. Levy of costs over several years--Fixing annual levy--Bond issue--Terms of bonds.
If the board determines that the estimated cost of a proposed project is greater than should be levied in a single year upon the lands benefited, it may fix the amount to be levied and collected each year and by resolution provide for issuance of bonds in an amount not to exceed the amount of unpaid assessment. The bonds shall bear interest payable annually or semiannually and shall mature in proportions and at times as assessments have been collected, not exceeding twenty years from issue.
Source: SDC 1939, § 61.1024; SDCL, § 46-21-23; SL 1983, ch 28, § 60; SL 1985, ch 362, § 120.
46A-11-24. Drainage bonds--Execution--Purpose of issue--Negotiation--Recital--Charge against lands.
Bonds issued pursuant to § 46A-11-23 shall be signed by the chairman of the board and the auditor, shall be issued for the benefit of the particular drainage district, and shall be numbered, recorded, and indexed in the office of the county auditor. The board shall negotiate the bonds at not less than their par value and the proceeds and any premium received on the bonds shall be credited to the fund of the particular drainage project. The bonds shall state that they are issued pursuant to this chapter and that they are to be paid out of funds to be obtained as provided in this chapter. The bonds shall be a charge against the lands for which benefit the bonds are issued until the principal and interest thereon have been fully paid.
Source: SDC 1939, § 61.1024; SDCL, § 46-21-24; SL 1985, ch 362, § 121.
46A-11-25. Drainage bonds--County not liable for payment--Payment from assessments.
No county may be liable for payment of any bonds issued under this chapter. The bonds shall be paid from funds derived from assessments under this chapter.
Source: SDC 1939, § 61.1024; SDCL, § 46-21-25; SL 1985, ch 362, § 122.
46A-11-26. Assessments payable to treasurer of county in which assessed land is situated--Issuance of bonds by joint action of boards--Laws governing.
Assessments are payable to the treasurer of the county in which assessed land is situated. Bonds may be issued by jointly acting boards and payable from assessments for the project. The bonds shall be signed by the chairman of each board, countersigned by the auditor of each county and may be issued for any portion of the expenses of the project. The terms, issue, collection of assessments, and all other procedure shall be the same as for a project located entirely within one county and any assessments and certificates shall be a lien and enforceable as for a single county project.
Source: SDC 1939, § 61.1036; SDCL, § 46-21-26; SL 1985, ch 362, § 123.
46A-11-27. Additional bonds, issuance--Cost of proposed drainage exceeding estimated cost--New apportionment of assessments--Certification of assessments finally fixed to county treasurer--Money collected by county treasurer on assessments to be paid to bondholders.
If the cost of a proposed project exceeds the preconstruction estimate, a new apportionment of assessments may be made and additional bonds issued and sold in like manner. If the proceeds of the assessments are insufficient to pay the principal and interest of bonds sold pursuant to this chapter, a new apportionment of assessment may be made to meet the shortage in funding. If assessments for a drainage project are finally fixed, they shall be certified to the county treasurer by the county auditor and money collected shall be received by the county treasurer to be paid to holders of bonds as the principal and interest become due.
Source: SDC 1939, § 61.1024; SDCL, § 46-21-27; SL 1985, ch 362, § 124.
46A-11-28. Separate accounts for drainage projects.
Separate accounts shall be kept by the treasurer for each drainage project and no funds for one drainage project may be applied to any other project.
Source: SDC 1939, § 61.1024; SDCL, § 46-21-28; SL 1985, ch 362, § 125.
46A-11-29. Unpaid installments of assessments for drainage--Extension by board of county commissioners--Drainage refunding bonds authorized.
The board of any county having outstanding drainage bonds issued under the provisions of this chapter may extend unpaid installments of assessments for such project and issue and sell drainage refunding bonds as provided in §§ 46A-11-30 to 46A-11-34, inclusive.
Source: SDC 1939, § 61.1017; SDCL, § 46-21-29; SL 1985, ch 362, § 126.
46A-11-30. Petition for extension of unpaid installments for drainage--Number of signatures required--Identification of drain--Contents--Hearing, publication of notice.
If there is filed with the county auditor a petition signed by owners of not less than fifty-one percent of the real property assessed for a project, which petition identifies the project and states that owners of land assessed for the project have defaulted in payment of one or more installments of assessments, that landowners are unable to pay installments falling due during the current year, or any other facts showing a necessity for an extension, the county auditor shall set the matter for hearing before the board at any regular or special meeting. The auditor shall publish notice of the hearing in a legal newspaper of the county at least once a week for at least two successive weeks prior to the hearing. The notice shall acknowledge filing of the petition, shall identify the project, and shall state the purpose, time, and place of the hearing.
Source: SDC 1939, § 61.1018; SDCL, § 46-21-30; SL 1985, ch 362, § 127.
46A-11-31. Petition for extension of unpaid installments for drainage--Consideration by board of county commissioners--Adjournment of hearing--Order of board.
At the time and place specified in a notice under § 46A-11-30, the board shall consider the petition. If the board determines that the petition is proper and required notice has been given, it has jurisdiction to hear and decide the matter. The board may adjourn the hearing from time to time. If the board determines that the facts stated in the petition are accurate, that an extension of time of payment of unpaid installments is necessary in order to prevent default in payment of a majority of assessments, and that the owners of property assessed for the project will benefit by an extension of unpaid installments, it may order that all or any portion of unpaid installments shall be extended for a period as it determines, not exceeding fifteen years from the date of the order. Interest on extended assessments is payable annually at the time provided in the original assessment.
Source: SDC 1939, § 61.1019; SDCL, § 46-21-31; SL 1985, ch 362, § 128.
46A-11-32. Appeal from order extending time for payment of unpaid installments--Determination--Waiver of matter not included in appeal.
Any person aggrieved by an order issued under § 46A-11-31 may appeal the order to the circuit court for the county within the time and in the manner provided by this chapter and chapter 46A-10A. On appeal, the right, power, and authority of the board to make the order and the necessity therefor may be heard. Any matter not included in the appeal is deemed waived.
Source: SDC 1939, § 61.1020; SDCL, § 46-21-32; SL 1985, ch 362, § 129.
46A-11-33. Refunding outstanding evidences of indebtedness--Sale and exchange--Laws governing.
If a board issues an order extending the time for payment of installments of assessments, or if all assessments not extended have been collected or become delinquent, the board may refund outstanding bonds, warrants, or certificates on account of any project, which may then be due or nearly due or which may be refunded at a lower rate of interest, and may issue and sell drainage refunding bonds of the county. The bonds may be sold at par value or may be exchanged for outstanding obligations of the district. Except as otherwise stated, the provisions of this chapter apply to issuance, sale, and payment of the bonds.
Source: SDC 1939, § 61.1021; SDCL, § 46-21-33; SL 1985, ch 362, § 130.
46A-11-34. Determination of amount required to pay principal and interest on outstanding bonds by board of county commissioners--Time for making--New apportionment of assessment against lands, collection.
Not later than its October meeting each year, the board shall calculate the funding required during the ensuing year to pay principal and interest on outstanding bonds on account of any projects for which assessments have been extended and the funding realized from assessments levied on real property not then in default in payment of taxes or assessments. If the board determines that the funding will not be sufficient to pay interest and principal, the board shall make a new apportionment of assessment against lands charged with the cost of the project and the assessment shall be extended, collected, and paid in the same manner as other project assessments.
Source: SDC 1939, § 61.1022; SDCL, § 46-21-34; SL 1985, ch 362, § 131.
46A-11-36. Drainage projects established under prior law--Assessments unenforceable--Appraisement and apportionment of benefits under this chapter.
If proceedings have been held for establishment of a ditch, drain, levee, or straightening or enlarging of a natural watercourse under prior law, if the project has been established, constructed, and assessments made therefor, and if the assessment cannot be enforced, the board shall proceed to all lands benefited by the project in like manner as if the appraisement and apportionment of benefits had never been made. The board shall proceed in the manner provided in this chapter, using as a basis the entire cost of the project. In assessment of benefits, account shall be taken of assessments, if any, that have been paid by those benefited and credit shall be given accordingly.
Source: SDC 1939, § 61.1026; SDCL, § 46-21-36; SL 1985, ch 362, § 133.
46A-11-37. Abandonment and abolition of drainage--Assessments and liens not affected.
Abandonment or abolishment of any drainage project and its works may not affect the obligation or validity of any assessments made against any of the lands involved or a lien for such assessments.
Source: SL 1939, ch 290, § 6; SDC Supp 1960, § 61.1052; SDCL, § 46-21-37; SL 1985, ch 362, § 134.
46A-11-38. Refunding excess assessments.
The board shall refund, upon request, any excess assessment not used in construction of any project to any person, corporation, municipality, or township within a drainage project, in proportion to the amount paid.
Source: SDC 1939, § 61.1043; SDCL, § 46-21-38; SL 1985, ch 362, § 135; SL 1992, ch 60, § 2.
CHAPTER 46A-11A
MEDIATION OF DRAINAGE DISPUTES
46A-11A-1 Statewide mediation program to assist property owners in resolving disputes over surface or subsurface water drainage.
46A-11A-2 Staff services provided by Department of Agriculture and Natural Resources.
46A-11A-3 Fees--Farm mediation operating fund.
46A-11A-4 Contracts for mediation services.
46A-11A-5 Parties to drainage dispute, property owners, and governmental entities affected by drainage activity--Meeting notice--Publication of public notice.
46A-11A-6 Written agreements.
46A-11A-7 Confidentiality of information.
46A-11A-8 Immunity of mediators.
46A-11A-9 Intervention in mediation process.
46A-11A-1. Statewide mediation program to assist property owners in resolving disputes over surface or subsurface water drainage.
The Department of Agriculture and Natural Resources shall establish and administer a statewide mediation program to provide assistance to property owners who seek to use mediation as a method to resolve disputes over the surface or subsurface drainage of water.
The secretary of the Department of Agriculture and Natural Resources shall promulgate rules pursuant to chapter 1-26 necessary for mediation, including the establishment of fees, training requirements for mediators, mediation request forms, mediation timeline, notification and intervention procedures, and any other mediation procedures as may be necessary for the mediation of drainage disputes. The parties to the mediation created under this chapter shall be limited to the person or parties that own or administer real property impacted by the planned drainage or drainage dispute.
Source: SL 2015, ch 226, § 1; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
46A-11A-2. Staff services provided by Department of Agriculture and Natural Resources.
All staff services required by the drainage mediation program shall be provided by the Department of Agriculture and Natural Resources. The secretary of agriculture and natural resources may employ agents and employees as the secretary deems necessary. The mediation services shall be administered under the direction and supervision of the Department of Agriculture and Natural Resources. All expenses incurred in carrying on the work of the drainage mediation program, including the per diem and expenses of the staff, salaries, contract payments, department notice requirements, and any other items of expense shall be paid out of funds appropriated or otherwise made available to the farm mediation operating fund.
Source: SL 2015, ch 226, § 2; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
46A-11A-3. Fees--Farm mediation operating fund.
Any fees incurred in the mediation process provided under this chapter and by rule shall be borne equally between the parties to the drainage dispute. The fees shall be deposited in the farm mediation operating fund. All money in the farm mediation operating fund is continuously appropriated for the purposes of administering the drainage mediation program. Any disbursements from the farm mediation operating fund shall be by authorization of the secretary of agriculture and natural resources.
Source: SL 2015, ch 226, § 3; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
46A-11A-4. Contracts for mediation services.
The Department of Agriculture and Natural Resources, in the administration of this chapter, may contract with one or more governmental entities, nonprofit corporations, individuals, or other entities as determined by the Department of Agriculture and Natural Resources to provide mediation services of drainage disputes.
Source: SL 2015, ch 226, § 4; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
46A-11A-5. Parties to drainage dispute, property owners, and governmental entities affected by drainage activity--Meeting notice--Publication of public notice.
The requesting party shall promptly provide to the Department of Agriculture and Natural Resources, upon the agreement of at least two parties to enter into the mediation program created under this chapter, a list of other parties to the drainage dispute and any property owner and any county, municipality, township, or any agency of state or federal government reasonably determined by the requesting party to be affected by the drainage activity. The Department of Agriculture and Natural Resources shall send a mediation meeting notice to the identified parties, setting a time and place for an initial mediation meeting between the parties to the dispute and a mediator. This notice shall be in conjunction with a public notice of the mediation by the Department of Agriculture and Natural Resources that shall be published once each week for two consecutive weeks in one of the official newspapers designated by the county or counties where the real property involved in the drainage dispute is located. The last publication shall be published before the initial mediation meeting. The unintentional failure to notify any party who may potentially be impacted by the drainage activity may not prevent the mediation from being scheduled or completed. No notice is necessary to any property owner within the boundaries of a municipality.
Source: SL 2015, ch 226, § 5; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
46A-11A-6. Written agreements.
Any agreement reached between the parties to the drainage dispute as a result of mediation shall be drafted into a written agreement. If signed by the parties, the agreement constitutes a binding contract, and the mediator shall so certify.
Source: SL 2015, ch 226, § 6.
46A-11A-7. Confidentiality of information.
Information relating to the dispute between the parties to the drainage dispute which is disclosed to the mediator or which is created, collected, or maintained by the Department of Agriculture and Natural Resources mediation program pursuant to the terms of this chapter is confidential to the extent agreed by the parties or provided by state law.
All mediation meetings, and all mediation activities provided by this chapter, are exempt from the provisions of chapter 1-27.
Source: SL 2015, ch 226, § 7; SL 2021, ch 1 (Ex. Ord. 21-3), § 51, eff. Apr. 19, 2021.
46A-11A-8. Immunity of mediators.
Any person serving as a mediator pursuant to this chapter is immune from civil liability in any action brought in any court in this state on the basis of any act or omission resulting in damage or injury if the person was acting in good faith, in a reasonable and prudent manner, and within the scope of such person's official functions and duties as a mediator.
Source: SL 2015, ch 226, § 8.
46A-11A-9. Intervention in mediation process.
Any person or party that claims to be impacted by the planned drainage activities, upon timely notice, is allowed to intervene in the mediation process if the person's or party's claim of impact is supported by a claim that the person or party owns or administers real property impacted by the planned drainage. The request for intervention shall be supported by evidence that the intervention is necessary to protect the person's or party's property interests and that those interests will not be adequately represented by the existing parties. In considering the application for intervention, the mediator shall determine whether an applicant may intervene and whether the interest of the applicant presents a property, health, or safety issue impacted by the mediation and whether the interests of the potential interveners will not be protected by the existing parties.
Source: SL 2015, ch 226, § 9.
46A-13-1
Petition for formation of interstate drainage district--Filing with clerk of court--Landowner qualifications--Time and place for hearing--Notice.
46A-13-2
Petition for formation of interstate drainage district--Jurisdiction of circuit court--Hearing--Determination of boundaries of district--Designation of name.
46A-13-3
Powers of interstate drainage district--Public corporation--Suits by and against
district.
46A-13-4
Governing commission of interstate drainage district--Number and selection of
members.
46A-13-5
Governing commission of interstate drainage district--Qualifications of members--Term of office of commissioners--Vacancies on commission, filling.
46A-13-6
Commissioners of interstate drainage district--Oath of office, filing--Bond, filing,
approval by board of county commissioners.
46A-13-7
Organization of commission--Time--Officers--Costs.
46A-13-8
Compensation of commissioners.
46A-13-9
Contract for joint action with adjoining state for drainage or flood control.
46A-13-10
Petition for improvement of interstate drainage project--Filing with commission,
Contents--Jurisdiction--Joint survey--Appointment of engineers.
46A-13-11
Bond of petitioners requesting improvement of interstate drainage project--Sureties,
approval by commission--Amount--Conditions.
46A-13-12
Survey and report of engineers--Time for completion and filing.
46A-13-13
Proposed improvement of interstate drainage project affecting water of United States--Use of government surveys or plans.
46A-13-14
Report of survey by engineers--Consideration by commission and officials of
adjoining state--Joint plan for construction of improvement--Order to be record of
commission.
46A-13-15
Commission of viewers--Appointment--Report.
46A-13-16
Estimation of total cost of construction of proposed improvement of interstate
drainage project.
46A-13-17
Agreement of commission and representatives of adjoining state as to amount of
costs to be borne by property within the respective states--Hearings.
46A-13-18
Determination by commission fixing proportion of cost payable by district--Finality.
46A-13-19
Joint plan for proposed improvement of interstate drainage project--Establishment--Determination of proportion of cost to be borne by respective states--Hearing on
petition to construct.
46A-13-20
Hearing on proposed improvement of interstate drainage project--Notice, publication
and posting, description of plan, summoning of interested persons.
46A-13-21
Hearing on proposed improvement of interstate drainage project--Appearance for or
against.
46A-13-22
Adjournment of hearing on proposed improvement of interstate drainage project,
purposes--Modification of joint plan, recording.
46A-13-23
Denial of petition for drainage improvement--Grounds--Liability of petitioners for
costs of proceeding.
46A-13-24
Establishment of drainage improvement by commission--Grounds--Designation of
name.
46A-13-25
Costs borne by state--Assessments--Warrants.
46A-13-26
Damages caused by construction of proposed improvement--Assessment, hearing,
appeal.
46A-13-1. Petition for formation of interstate drainage district--Filing with clerk of court--Landowner qualifications--Time and place for hearing--Notice.
At least fifty affected South Dakota resident landowners, or the county commissioners of any affected county, may file a petition with the clerk of the circuit court for the affected county requesting the formation of a drainage district as provided in this chapter. The provisions of this section apply to any land bordering upon any body of water or stream forming the boundary line between this state and any other state, or any land included in a natural drainage basin along or extending across the boundary line of the state. For purposes of this section, an affected county is a county that lies within or partly within such territory, and an affected landowner is a South Dakota resident landowner who owns at least ten acres of such land as shown by the records of the register of deeds and clerk of courts of the county in which the land is situated. If the land is sold under a contract for deed, which is of record in the office of the register of deeds, both the landowner and the individual purchaser of the land, as named in the contract for deed, shall be treated as owners of the territory described in the petition.
Within ten days after the petition is filed, the court shall, by order, fix a time and place within the territory named in the petition for a hearing upon the petition. Notice of the hearing shall be published in at least one legal weekly newspaper published in each affected county, for two successive weeks, the last publication to be at least ten days before the day set for hearing.
Source: SDC 1939, § 61.1101; SL 1964, ch 222, § 1; SDCL § 46-23-1; SL 2011, ch 165, § 505.
46A-13-2. Petition for formation of interstate drainage district--Jurisdiction of circuit court--Hearing--Determination of boundaries of district--Designation of name.
Upon the filing of such petition and the giving of such notice, such circuit court shall have full jurisdiction of all matters referred to in such petition. Upon the hearing specified in such notice such court shall have full authority by order to fix and determine, and shall by order fix and determine the boundary line of such drainage district, either as designated in the petition or as subsequently modified, which shall as far as practicable include territory that forms one drainage basin and is affected by like or similar conditions, and that can properly be united in one drainage project for all the purposes of this chapter, and shall designate a name by which such district shall be known.
Source: SDC 1939, § 61.1101; SL 1964, ch 222, § 1; SDCL, § 46-23-2.
46A-13-3. Powers of interstate drainage district--Public corporation--Suits by and against district.
Such drainage district shall be and become a public corporation under the laws of this state and may sue and be sued and have and exercise the powers conferred by this chapter or any other provision of the laws of this state relating to drainage districts.
Source: SDC 1939, § 61.1101; SL 1964, ch 222, § 1; SDCL, § 46-23-3.
46A-13-4. Governing commission of interstate drainage district--Number and selection of members.
After the formation of the drainage district as prescribed in §§ 46A-13-1 to 46A-13-3, inclusive, a governing commission of three members shall be chosen as provided in this section. If the territory included within the district is within a single county, the governing board shall be chosen by the county commissioners of the county. If the territory included within the district lies within two counties, the governing board shall be chosen by the joint meeting and action of the boards of county commissioners of the counties. If the territory included within the district lies within three or more counties, the governing board shall be chosen by the chairs of the boards of county commissioners of the counties meeting and acting jointly. The boards of county commissioners, or the chair of the boards, as the case may be, shall promptly meet and appoint the governing board of the district.
Source: SDC 1939, § 61.1102; SDCL § 46-23-4; SL 2011, ch 165, § 506.
46A-13-5. Governing commission of interstate drainage district--Qualifications of members--Term of office of commissioners--Vacancies on commission, filling.
Such governing board shall consist of three resident freeholders of this state, who shall be voters of the drainage district and who shall be known as the commissioners of such district. Such commissioners shall hold office for a period of two years from and after the date of their appointment and until their successors are appointed and qualified, and vacancies on such board shall be filled by appointment as in the first instance.
Source: SDC 1939, § 61.1102; SDCL, § 46-23-5.
46A-13-6. Commissioners of interstate drainage district--Oath of office, filing--Bond, filing, approval by board of county commissioners.
The commissioners of such drainage district shall take the oath and give the bond provided by law for members of the board of county commissioners, which oath and bond shall be filed with the county auditor of the county wherein the petition for the formation of the drainage district was filed, and such bond shall be subject to the approval of the board of county commissioners of such county.
Source: SDC 1939, § 61.1102; SDCL, § 46-23-6.
46A-13-7. Organization of commission--Time--Officers--Costs.
The commissioners shall, within ten days after their appointment, meet at some convenient place within the drainage district and elect one of their members as chair. They shall appoint the county auditor of one of the counties having territory included within the district clerk of the commission, whose duties are to keep and preserve the records of the commission in his or her office and to act generally as the clerical officer of the commission. Thereafter, the office of the county auditor is the office of the drainage commission. The board of county commissioners of the county shall provide additional help and facilities necessary for the auditor to act as clerk of the commission. The cost of the additional help and facilities shall be ascertained by the commission, and included as part of the cost of the drainage proceeding conducted by the commission, and shall be collected by the commission and repaid to the county. The filing of any petition, report, or document with the county auditor for all purposes of this chapter is deemed a filing with the commission.
Source: SDC 1939, § 61.1104; SDCL § 46-23-7; SL 2011, ch 165, § 507.
46A-13-8. Compensation of commissioners.
The commissioners of such drainage district shall be paid the sum of seven dollars per day for each day actually and necessarily spent in performing the duties of their office and in addition their actual expenses incurred in performing such duties.
Source: SDC 1939, § 61.1102; SDCL, § 46-23-8.
46A-13-9. Contract for joint action with adjoining state for drainage or flood control.
The commissioners of a drainage district formed pursuant to this chapter may, if necessary or expedient to carry out the purposes of this chapter, enter into a contract or agreement with the court, board, or tribunal of an adjoining state having authority relative to drainage matters in that state, including the right to raise, lower, or fix the stage of water in boundary waters, or with the United States government under its authorized authority. The contract or agreement shall be for joint action with the adjoining state for drainage or flood control measures that cause benefits or damages to, or otherwise affect, property in this state and the adjoining state. The provisions of this section apply to any lake, pond, or other body of water, or any river, stream, or watercourse that forms to any extent a boundary line between this state and any other state, and to any land included within a natural drainage basin lying along or extending across the boundary line of the state. The contract or agreement may be for the following purposes:
(1) To facilitate drainage into or from, or to control to any extent flood waters into, through, or from any such lake, pond, body of water, river, stream, or watercourse, or into or from any such land;
(2) For purposes of flood control, to raise, lower, or otherwise affect the stage or depth of water;
(3) For the joint establishment and construction of all necessary ditches, drains, canals, dikes, levees, dams, locks, spillways, or other structures necessary to provide a proper watercourse;
(4) For deepening, widening, and straightening of the channels of any river, stream, or watercourse;
(5) For controlling by dikes or levees the flow of water in a manner necessary to effectuate the provisions of this chapter; and
(6) For securing and providing the necessary drainage facilities and control of flood waters into, through, and from the boundary waters and the rivers, streams, or ditches connected with the boundary waters and for properly draining any natural drainage basin.
In order to implement the contract or agreement the commissioners may determine the damages and benefits that may result to property located within the drainage district, and may provide funds to implement the contract or agreement by special assessment upon the property benefited according to the benefits received, as provided in this chapter.
Source: SDC 1939, § 61.1103; SDCL § 46-23-9; SL 2011, ch 165, § 508.
46A-13-10. Petition for improvement of interstate drainage project--Filing with commission, Contents--Jurisdiction--Joint survey--Appointment of engineers.
At least twenty-five South Dakota resident owners of not less than ten acres of land each within an interstate drainage district formed pursuant to this chapter, or the governing body of any county or municipality located within the district that is likely to be affected by a proposed improvement, may file a petition with the district commission setting forth the necessity for an improvement to be constructed by joint arrangement and cooperation with the authorities of another state. The petition shall include a general description of the proposed improvement. If the proposed improvement involves a ditch or watercourse, the petition shall describe the starting point, the general route, and terminus, together with a description of the territory likely to be affected. If the improvement involves the raising, lowering, or impounding of water in any body of water or stream, the petition shall include a description of the body of water or watercourse and the proposed changes to be made, and shall state the purpose for the changes and a description of the land likely to be affected by the changes. The petition shall request the construction of any of the drainage or flood control improvements referred to in this chapter.
The district commission has jurisdiction over all matters referred to in the petition in the counties named within the limits of the district. In addition, the commission may make joint contracts or agreements with the court, tribunal, or other body in the adjoining state, having authority relative to drainage and control of flood waters, for the appointment of one or more engineers to secure a joint survey of the territory affected by the proposed improvement. The joint survey shall be for purposes of considering the adoption of a joint plan for cooperation in supplying the necessary drainage of lands affected by the improvement, and impounding and controlling flood waters in and the outlet from the affected lands. In selecting the engineers, preference shall be given to state engineers or engineers in charge of state drainage in the respective states.
For purposes of this section, status as a resident owner of land within an interstate drainage district is as shown by the records in the offices of the register of deeds and the clerk of courts of the county in which the land is situated. If the land is sold under contract for deed, which is of record in the office of the register of deeds of the county, both the landowner and the individual purchaser of the land, as named in the contract for deed, shall be treated as owners.
Source: SDC 1939, § 61.1105; SL 1964, ch 222, § 2; SDCL § 46-23-10; SL 2011, ch 165, § 509.
46A-13-11. Bond of petitioners requesting improvement of interstate drainage project--Sureties, approval by commission--Amount--Conditions.
Before acting upon the petition for such improvements, such interstate drainage district commission shall require the petitioners to furnish a bond with proper sureties to be approved by such commission in such sum as it may designate, to secure the payment of all expenses which may be incurred in such proceeding in the event that such improvement be not ordered constructed by such commission.
Source: SDC 1939, § 61.1105; SL 1964, ch 222, § 2; SDCL, § 46-23-11.
46A-13-12. Survey and report of engineers--Time for completion and filing.
The interstate drainage district commission and the authorities representing drainage in the adjoining state may make all necessary orders and regulations relative to the making of the survey and report of the engineers appointed under § 46A-13-10 and may specify all information required in such report and the time within which the report shall be completed and filed with the commission and with the authorities in the adjoining state.
Source: SDC 1939, § 61.1105; SL 1964, ch 222, § 2; SDCL § 46-23-12; SL 2011, ch 165, § 510.
46A-13-13. Proposed improvement of interstate drainage project affecting water of United States--Use of government surveys or plans.
In the event the proposed improvement affects a navigable stream or body of water, and as such is under the control of the United States government, any surveys or plans for improvements made and furnished by the United States government engineers which may be submitted may be used for the purpose of securing and adopting a joint plan.
Source: SDC 1939, § 61.1105; SL 1964, ch 222, § 2; SDCL, § 46-23-13.
46A-13-14. Report of survey by engineers--Consideration by commission and officials of adjoining state--Joint plan for construction of improvement--Order to be record of commission.
Upon the filing of the report of the engineers appointed to make the joint survey, which in all instances shall be made at the earliest possible date, the interstate drainage district commission, together with the representatives of the adjoining state or states, shall consider the report with the view of providing a joint plan for the construction of the proposed improvement. After full consideration of the report and all information obtainable about the matters included in the report and the proposed improvement, the commission may arrange for a joint plan with the authorities or representatives of the other state or states, and adopt the joint plan for the construction of the proposed improvement, if the commission determines that the plan is practicable and for the best interests of the district. The order of the commission determining the joint plan, together with a copy of the plan, shall be made a record of the commission.
Source: SDC 1939, § 61.1106; SDCL § 46-23-14; SL 2011, ch 165, § 511.
46A-13-15. Commission of viewers--Appointment--Report.
Upon the adoption of the joint plan, the interstate drainage district commission, together with the representatives of any adjoining state, may appoint a commission of viewers consisting of three disinterested persons, at least one of whom shall be a citizen of this state, who may examine in detail the full improvement proposed and all property affected by the proposed improvement. The commission of viewers shall report of its findings, as the commission of the drainage district and the representatives of any adjoining state require, relative to all benefits and damages that will result from the improvement. The report shall address benefits and damages from the improvement affecting highways, railway companies, and municipal corporations, and shall include a description of each piece of property and the name of each company or corporation affected by the improvement. The report shall give the amounts of benefits and damages that may result to the property or corporations from the construction of the improvement, together with the estimated cost of the improvement including all damages and expenses connected with the improvement, and the aggregate amount of benefits that will result from the improvement.
Source: SDC 1939, § 61.1107; SDCL § 46-23-15; SL 2011, ch 165, § 512.
46A-13-16. Estimation of total cost of construction of proposed improvement of interstate drainage project.
In estimating the probable total cost of the construction of such improvement, all damages resulting therefrom and all expenses and fees attending the same, including counsel fees, except the expenses of the representatives of the various states, may be included.
Source: SDC 1939, § 61.1107; SDCL, § 46-23-16.
46A-13-17. Agreement of commission and representatives of adjoining state as to amount of costs to be borne by property within the respective states--Hearings.
Upon the filing of a copy of the viewers' report with the commission of the drainage district, the commission and the proper representatives of any adjoining state shall agree upon the proportionate amount of the cost of the improvement that shall be borne by the property located within the respective states, which shall be according to the benefits received. For the purpose of arriving at the determination of costs and benefits, the commission, with or without the representatives of any adjoining state, may hold hearings. From all the information obtained from the report of the viewers and from the hearings, the commission shall arrive at and agree with the representatives of any adjoining state upon the proportionate amount of the cost of the improvement to be borne by the property located within the drainage district, and shall enter the determination of record.
Source: SDC 1939, § 61.1107; SDCL § 46-23-17; SL 2011, ch 165, § 513.
46A-13-18. Determination by commission fixing proportion of cost payable by district--Finality.
The determination so made by the drainage commission fixing the proportion of the cost of the proposed improvement that shall be paid by such drainage district shall be final and conclusive on all persons and property within such district in case the improvement is constructed.
Source: SDC 1939, § 61.1107; SDCL, § 46-23-18.
46A-13-19. Joint plan for proposed improvement of interstate drainage project--Establishment--Determination of proportion of cost to be borne by respective states--Hearing on petition to construct.
After the establishment of the joint plan and the determination of the proportion of cost which shall be borne by the respective states, the drainage commission shall fix a time and place within the district for the hearing of the petition to construct such improvement according to the joint plan as adopted and with the cost to be divided and apportioned as determined.
Source: SDC 1939, § 61.1108; SDCL, § 46-23-19.
46A-13-20. Hearing on proposed improvement of interstate drainage project--Notice, publication and posting, description of plan, summoning of interested persons.
Notice of such hearing shall be given by publication for two consecutive issues in a legal weekly newspaper of each county affected by the proposed improvement, and by posting copies of such notice in at least three public places near the route of the proposed drainage within the drainage district. Such notice shall describe the location and plan of the proposed drainage improvement and the tract of country likely to be affected thereby in general terms, the separate tracts of land, if any, through which the proposed improvement will pass or be located, and give the names of the owners thereof as appears from the records of the office of the register of deeds at the date of the filing of the petition, and shall refer to the files in the proceedings for further particulars. Such notice shall summon and require all persons affected by the proposed improvement to appear at such hearing and show cause why such improvement should not be established and constructed, and shall summon all persons deeming themselves damaged by the proposed drainage or claiming compensation for the lands proposed to be taken or damaged by such improvement to present their claims therefor at such hearing.
Source: SDC 1939, § 61.1108; SDCL, § 46-23-20.
46A-13-21. Hearing on proposed improvement of interstate drainage project--Appearance for or against.
At such hearing any person interested may appear for or in opposition to the statements of the petition and matters set forth in the engineers' and viewers' reports and findings and agreement of the drainage commission with the representatives of the other state or states for a joint plan and for proportioning the cost of such improvement.
Source: SDC 1939, § 61.1109; SDCL, § 46-23-21.
46A-13-22. Adjournment of hearing on proposed improvement of interstate drainage project, purposes--Modification of joint plan, recording.
Such drainage commission may in its discretion adjourn such hearing for the purpose of conferring with the representatives of the other state or states relative to modifying the joint plan, or relative to modifying the findings as to the proportion of the cost to be borne by each state. If such modification is made, the same shall be entered of record as in case of the original order therefor.
Source: SDC 1939, § 61.1109; SDCL, § 46-23-22.
46A-13-23. Denial of petition for drainage improvement--Grounds--Liability of petitioners for costs of proceeding.
If the drainage commission has fully heard and considered the petition and the joint plan as adopted or modified, the report of the engineers and viewers, and the determination as to the proportion of cost to be borne by this state, and if the commission finds the proposed drainage improvement not conducive to the public health, convenience, or welfare, or not needed or practicable for the purpose of draining agricultural lands, or that the proportion of the cost of the proposed improvement to be borne by this state will be greater than the benefits conferred, the commission shall deny the petition for the drainage improvement. The petitioners are jointly and severally liable for the cost and expenses of the proceeding thus far made and incurred by the drainage commission, and the costs and expenses may be recovered in a civil action.
Source: SDC 1939, § 61.1109; SDCL § 46-23-23; SL 2011, ch 165, § 514.
46A-13-24. Establishment of drainage improvement by commission--Grounds--Designation of name.
If the drainage commission finds the drainage improvement proposed and finally agreed upon with the representatives of the other state or states conducive to the public health, convenience, or welfare, or necessary or practicable for draining agricultural lands, and that the cost thereof apportioned to be paid by this state does not exceed the benefits conferred, it shall establish such drainage improvement and give the same a name so far as the same shall be within the limits of this state.
Source: SDC 1939, § 61.1109; SDCL, § 46-23-24.
46A-13-25. Costs borne by state--Assessments--Warrants.
The cost of services and expenses of the drainage commission, all fees, costs and expenses relating to the procedure for assessing damages, costs of the equalization of benefits and costs of making assessments and issuance of warrants or bonds shall be added to the proportionate cost of construction of improvements borne by the state. It is intended that each state shall bear the expenses of its own representative or tribunal in making joint drainage improvement. All other costs and expenses of the procedure in making an improvement shall be borne jointly by the states according to the proportion of benefits theretofore determined. The commission may make one or more assessments for the purpose of raising money, or it may, in advance of making assessments, issue warrants payable only from assessments to be thereafter made. The warrants shall bear interest at a rate to be negotiated by the parties and may not be sold at less than their face value.
Source: SDC 1939, § 61.1111; SDCL, § 46-23-25; SL 1983, ch 28, § 61.
46A-13-26. Damages caused by construction of proposed improvement--Assessment, hearing, appeal.
The drainage commission shall also assess the damages sustained by each tract of land or other property within this state by the construction of the proposed improvement, and fix the compensation for any land or property taken or damaged. Any person interested may be heard in the matter of damages or compensation for property taken or damaged, and the determination of the drainage commission shall be final unless an appeal therefrom shall be taken as provided in this chapter, and failure to prosecute such appeal or to appear and contest an award of damages by the commission shall be conclusively deemed a waiver of any such damages or compensation, or of any claimant's right to have the same assessed by a jury.
Source: SDC 1939, § 61.1109; SDCL, § 46-23-26.
46A-13-27. Establishment of drainage improvement and determination of damages--Equalization of benefits.
After the establishment of the drainage improvement and the determination of the damages, if any, the drainage commission shall fix the proportion of benefits of the proposed drainage among the lands or municipal corporations affected and equalize the same in like manner and after like notice as provided for the equalization of benefits in drainage matters by boards of county commissioners.
Source: SDC 1939, § 61.1110; SDCL, § 46-23-27.
46A-13-28. Assessments for portion of cost of construction of drainage improvement required to be paid by drainage district--Property subject to assessment.
After the establishment of the drainage improvement and the determination of the damages and the fixing of the proportion of benefits by the drainage commission, such commission shall proceed to raise the money with which to pay the portion of the cost of the construction of such improvement required to be paid by such drainage district. Such money shall be raised by an assessment to be made by such commission against each tract and property affected by the improvement within the district in proportion to the benefits fixed.
Source: SDC 1939, § 61.1111; SDCL, § 46-23-28.
46A-13-29. Bonds to raise money for portion of cost of construction of drainage improvement required to be paid by drainage district--Issuance and sale.
For the prompt raising of money with which to bear the proportionate cost of such proposed drainage improvement, such commission may issue bonds in the same manner and with the same effect as boards of county commissioners are authorized to issue bonds in drainage proceedings. Such commission may sell such bonds at not less than the par value thereof as it may deem best for the interests of all persons within this state affected by such drainage, any premium received on such bonds to be credited to the fund of the particular drainage.
Source: SDC 1939, § 61.1111; SDCL, § 46-23-29.
46A-13-30. Assessments for drainage purposes--Authority of commissioners of interstate drainage district.
All of the provisions of the laws of this state relating to the making of assessments by the board of county commissioners for drainage purposes, so far as the same shall be applicable and not inconsistent with the provisions of this chapter, shall apply to assessments by such drainage commission, and such commission shall exercise within its drainage district the same power and authority relating to making assessments for drainage purposes as are conferred upon a board of county commissioners within its county.
Source: SDC 1939, § 61.1111; SDCL, § 46-23-30.
46A-13-31. Special assessment order of commissioners of interstate drainage district--Certified copy filed with county treasurer--Lien of assessment--Collection and disbursement of assessments.
After the drainage commission makes a special assessment, a certified copy of the order making the assessment, or as much as relates to property within each county, shall be filed with the county treasurer of each county for collection. From the time of filing, the assessments are due and payable. They are perpetual liens upon the respective tracts so assessed against all persons or governments, except this state and the United States. If they are not paid within ten days, they shall bear interest from the date of the order at the Category D rate of interest as established in § 54-3-16 payable annually. The assessments shall be paid to the county treasurer and held in a separate fund, all interest accrued to be credited to the fund, and shall be paid by the county treasurer upon warrants issued by the drainage commission.
Source: SDC 1939, § 61.1112; SDCL, § 46-23-31; SL 1983, ch 28, § 62; SL 1984, ch 319, § 30.
46A-13-32. Construction of drainage improvement--Provision for necessary funds--Letting of contract--Advertising for bids--Joint arrangements.
If the funds necessary to complete the improvement are provided by the proper authorities of each affected state, the commission in this state may join with the court or tribunal of any other affected state and, by acting jointly or by a commission appointed by the affected states for that purpose, construct the drainage improvement. The affected states or the commission may make all necessary arrangements for the letting of a contract for the construction of the drainage improvement and may advertise for bids for the construction in accordance with the plans and specifications which shall be reported and provided by the engineers appointed to make the joint survey. The bids shall be received and opened at a time and place designated in the notice, and the contracts shall be let in a manner designated in the notice. All or any portion of the improvement may be contracted for separately, and the contract shall contain such conditions and provisions as the respective authorities acting jointly may require. All provisions for the completion of the improvement, the supervision of the work, and the payment for the work may be provided for by joint arrangement between the representatives of the several states. The authorities of each state, however, are responsible only for the sums arranged to be furnished by assessment or otherwise within the limits of the state.
Source: SDC 1939, § 61.1113; SDCL § 46-23-32; SL 2011, ch 165, § 515.
46A-13-33. Maintenance and repair of drainage improvement constructed by joint arrangement--Assessments.
The maintenance and repair of any drainage improvement constructed by joint arrangement with the authorities of any other state, under the provisions of this chapter, may be provided for by joint arrangement with the other state in the same manner as the drainage improvement was originally established and constructed. Any provision of this chapter relating to the construction of a drainage improvement by joint action applies to the maintenance and repair of the drainage improvement if action is taken for maintenance and repair under the provisions of this chapter. The drainage commission may make assessments upon the property benefited, according to the benefit received, for the proportionate share of the maintenance and repair of any drainage improvement the maintenance and repair is arranged for under the provisions of this chapter.
Source: SDC 1939, § 61.1114; SDCL § 46-23-33; SL 2011, ch 165, § 516.
46A-13-34. Absence of arrangement for joint action--Repair and maintenance treated as drainage improvement within state.
In the absence of such an arrangement for joint action, the repair and improvement of any such drainage shall be treated as a drainage improvement within the state, and its repair and maintenance within the limits of this state shall be provided for in accordance with the drainage laws of this state. The repair and maintenance shall be made by the drainage commission of the drainage district, and the commission for the purpose of making the repair and maintenance shall exercise all the powers conferred upon it by this chapter in drainage matters and may make assessments for the repair and maintenance of the improvement within this state on the property benefited by the improvement as provided in this chapter to raise money for the construction of the improvement.
Source: SDC 1939, § 61.1114; SDCL § 46-23-34; SL 2011, ch 165, § 517.
46A-13-35. Defects not affecting substantial rights disregarded in suit to avoid assessment or invalidate proceeding--Substantial defect--Rights of parties determined by court-Reassessment.
Any defect or irregularity not affecting the substantial rights of the parties interested, occurring in any proceeding under this chapter, shall be disregarded in any action or proceeding seeking to avoid any assessment or to cancel, annul, or declare void any proceeding held under this chapter. If the defect is substantial, the court shall of its own motion determine the rights of the parties, validate the proceeding, and assess the costs as justice may require, if the court finds cause for the validation or that the action should have been taken in the first instance and all parties interested are before the court. If for any reason an assessment is held void or set aside, the court shall immediately make an order directing the reassessment of a proper sum, with interest, against all property on which the assessment is held invalid. Upon filing the order with the drainage commission, reassessment shall be made and enforced in accordance with the order.
Source: SDC 1939, § 61.1115; SDCL § 46-23-35; SL 2011, ch 165, § 518.
46A-13-36. Appeal from final determination of commission to circuit court--Manner and time of taking--Effect of taking.
An appeal shall lie from any final order or determination of the drainage commission fixing damages occasioned by the making of the drainage improvement, or fixing the proportion of assessments of benefits, to the circuit court for the county in which the property affected is located, by anyone aggrieved by any such order or determination. The appeal may be taken in the manner and within the time provided by law for appeals from the action of boards of county commissioners in drainage matters. The taking of such an appeal has the same effect and is determined by the court in like manner as appeals from boards of county commissioners in drainage matters, but does not stay the drainage proceedings. No appeal may be allowed from any action of the drainage commission except as provided in this section.
Source: SDC 1939, § 61.1116; SDCL § 46-23-36; SL 2011, ch 165, § 519.
CHAPTER 46A-14
WATERSHED DISTRICTS
46A-14-1 Purpose of chapter--Construction and administration.
46A-14-2 Definition of terms.
46A-14-3 46A-14-3. Repealed by SL 2013, ch 228, § 6.
46A-14-4 Conservation purposes supporting establishment.
46A-14-4.1 Functions and duties of commission.
46A-14-5 Initiating petition for establishment--Filing--Signatures required.
46A-14-6 Boundaries of district--Contiguous land ownerships.
46A-14-7 Inclusion of municipality.
46A-14-8 Initiating petition--Contents.
46A-14-9 46A-14-9. Repealed by SL 1998, ch 36, § 59
46A-14-10 46A-14-10. Repealed by SL 2013, ch 228, § 13.
46A-14-11 Duties of supervisors on receipt of initiating petition.
46A-14-12 46A-14-12. Repealed by SL 2013, ch 228, § 15.
46A-14-13 Time and place for hearing on initiating petition--Publication of notice--Contents.
46A-14-14 Hearing by conservation district on petition--Right of interested persons to be heard.
46A-14-15 Determination that public interest would be served by creation of district--Election on question.
46A-14-15.1 Eligible voter defined.
46A-14-16 Referendum unnecessary where petition signed by sixty percent of eligible voters.
46A-14-17 46A-14-17. Repealed by SL 2013, ch 228, § 20.
46A-14-18 46A-14-18 to 46A-14-25. Repealed by SL 1998, ch 36, §§ 64 to 71
46A-14-26 Organization to proceed on sixty percent favorable vote--New proposal permitted on defeat.
46A-14-27 46A-14-27. Repealed by SL 2013, ch 228, § 22.
46A-14-28 Name of district--Perpetual existence--Findings and order--Political subdivision.
46A-14-29 46A-14-29. Repealed by SL 2013, ch 228, § 24.
46A-14-30 Boundaries--Minor adjustments by managers without referendum--Exception.
46A-14-31 Annexation of additional areas to watershed district--Procedure.
46A-14-32 Combining of two or more watershed districts into one district--Procedure.
46A-14-33 Abolishment of original watershed district upon combining districts or annexing additional territory--Certification to secretary of state.
46A-14-34 Powers of district.
46A-14-35 Oath of office of managers--Filing with conservation district.
46A-14-36 Officers--Records--Transaction of district's business.
46A-14-37 Annual election of managers--Terms of office.
46A-14-38 Candidates for board of managers--Filing of application--Qualifications.
46A-14-39 Vacancies on board--Appointments--Terms of office.
46A-14-39.1 Watershed district--Reactivation--Hearing.
46A-14-39.2 Reactivated watershed district--Implementation of new tax levy.
46A-14-40 Advisory committee--Appointment by board of managers--Number of members--Duties.
46A-14-41 Appointment of personnel--Performance bond.
46A-14-42 Compensation of board members--Limitation.
46A-14-43 Duties of board of managers--Adoption of seal--Record of business transacted--Bylaws and regulations, adoption--Meetings, notice.
46A-14-43.1 District bylaws may be proposed by petition--Approval by board and special election.
46A-14-44 46A-14-44. Repealed by SL 2013, ch 228, § 33.
46A-14-45 Vested water rights--Exclusion from operation of chapter.
46A-14-46 Vested drainage rights--Exclusion from operation of chapter.
46A-14-47 General improvement plan--Consultation with advisory committee and supervisors of conservation districts--Contents--Steering committee preparation of preliminary plan.
46A-14-48 Determination of priority of specific projects--Surveys of work--Estimates--Reports of engineer, filing, public inspection.
46A-14-49 46A-14-49, 46A-14-50. Repealed by SL 2013, ch 228, §§ 35, 36.
46A-14-51 Examination of and hearings on plans--Resolution as to payment of costs by general tax levy, special assessment, or improvement bonds--List of benefited lands and owners.
46A-14-52 46A-14-52. Repealed by SL 2013, ch 228, § 38.
46A-14-53 Contract with conservation districts for funding.
46A-14-54 Publication of resolution and notice of hearing--Apportionment of benefits.
46A-14-55 Hearing and referendum on financing arrangements.
46A-14-56 Referendum on financing arrangements--Eligibility to vote--Counting of votes.
46A-14-57 Annual payments by municipality to district in lieu of tax or special assessment levies--Favorable vote by voters of municipality required.
46A-14-58 Resolution approving tax or assessment levy--Detailed reports.
46A-14-59 Assessed valuation for district tax purposes--Limitation on land taxed.
46A-14-60 Annual general tax levy against land and buildings--Maximum amount.
46A-14-61 Taxes collected by county officials--Delivery to district secretary-treasurer.
46A-14-62 Interested party aggrieved by apportionment of benefits or levy of taxes and assessments--Appeal, procedure.
46A-14-63 No-fund warrants to pay district obligations--Limitation on amounts.
46A-14-64 Long-term financing arrangement authorized by voters--Notice to landowners--Suit to set aside--Collection.
46A-14-65 Amended or supplemental general plan of improvements--Special election on additional taxes or special assessments.
46A-14-66 Annual maintenance of watershed project--Project schedule--Budgets.
46A-14-67 Annual operation and maintenance budget, provisions--Reserve fund.
46A-14-68 46A-14-68. Repealed by SL 1995, ch 253, § 10
46A-14-69 Budgeted operation and maintenance expense--Inclusion in tax assessment list.
46A-14-70 Budget--Operations and budget report--Publication--Hearing--Certification and collection of taxes and assessments.
46A-14-71 Contributions by board of county commissioners to watershed district supplies, labor, and equipment.
46A-14-72 Acquisition of real estate or easement therein by watershed district--Purchase--Condemnation, appraisal of premises involved.
46A-14-73 Contracts between district and others--Purposes--Referendum by voters where contract will require increased taxes or assessments.
46A-14-74 Funds of district--Deposit by secretary-treasurer in approved depository--Warrants.
46A-14-75 Claims against district--Payment by warrant or order--Registration.
46A-14-76 Services performed by county officials and Board of Water and Natural Resources free of charge.
46A-14-77 Annual reports of district engineer, secretary, and managers.
46A-14-78 46A-14-78 to 46A-14-79.1. Repealed by SL 2013, ch 228, §§ 51 to 53.
46A-14-80 Operation of watershed district, investigation by board--Hearings, order to correct detrimental operation--Enforcement of order by injunction.
46A-14-81 Dissolution of district where federal watershed project not certified infeasible--Special election--Notice--Ballots.
46A-14-82 Dissolution of district--Federal project not certified infeasible--Special election--Percent required to dissolve--Notice to creditors--Auction--Proration of funds remaining.
46A-14-83 Dissolution of district--Federal project not certified infeasible--Proposal defeated, three years before another vote on question.
46A-14-84 Request that federal project be certified infeasible.
46A-14-85 Dissolution of district where federal watershed project certified infeasible.
46A-14-86 Public hearing--Publication of notice.
46A-14-87 State Conservation Commission determination on proposed dissolution.
46A-14-88 Effective date of dissolution.
46A-14-89 Division and apportionment of funds and assets of dissolved district.
46A-14-90 46A-14-90. Repealed by SL 2013, ch 228, § 61.
46A-14-91 Vested rights protected.
46A-14-92 46A-14-92. Repealed by SL 2013, ch 228, § 62.
46A-14-93 46A-14-93, 46A-14-94. Repealed by SL 2012, ch 220, § 3, eff. Jan. 20, 2015.
46A-14-1. Purpose of chapter--Construction and administration.
In order to carry out conservation of the natural resources of the state through land utilization, flood control, and other needs, upon sound scientific principles, for the protection of the public health and welfare and the provident use of the natural resources, the creation of a public corporation as an agency of the state for the aforesaid purposes is herein provided. This chapter shall be construed and administered so as to make effective the following state policy:
(1) The general welfare of the people of South Dakota requires that the land and water resources of the state be conserved and put to optimum beneficial use.
(2) Worthwhile land and water resource developments by the people and organizations in the state are to be encouraged in every way possible by state government and state government shall control, coordinate, and regulate the interrelationship of, and interdependence of, land and water resource projects in order to assure and maintain maximum benefits to the people of the state.
(3) To this end, construction of land and water resource projects in the state shall receive the review, approval, and assistance of the administering agency of state government to the extent that proposed project works are complementary with other existing and proposed developments.
(4) To this end, also, land and water resource development project proposals shall include adequate attention to continuous maintenance in order to assure that the works constructed shall continue to provide the service for which they were built and sponsors of such projects and responsible administrators of state government shall perform their duties in such a manner as to assure the benefits that accrue to the people directly affected by land and water developments are maintained and do not become a menace to or produce damage to the property of others.
Source: SL 1957, ch 492, § 1; SDC Supp 1960, § 61.1501; SDCL, § 46-24-1.
46A-14-2. Definition of terms.
Terms used in this chapter mean:
(1) "Conservation district," a conservation district established in accordance with state law;
(2) "District," a proposed or existing watershed district as provided in this chapter;
(3) "Engineer," an engineer designated by the managers to act as the engineer of the district;
(4) "Hearing," a hearing scheduled and conducted by either the board of managers, conservation districts, or the Board of Water and Natural Resources, during which all interested parties shall be given a reasonable opportunity to be heard;
(5) "Initiating petition," a petition as provided in this chapter for the creation or modification of a watershed district;
(6) "Interested party," any public corporation or any person having an interest in the subject matter pending or involved and including the designated representative or any agency of government;
(7) "Landowner," any owner of land, as evidenced by records in the offices of the register of deeds and the clerk of courts in the county containing a proposed or existing watershed district. If land is sold under a contract for deed that is of record in the office of the register of deeds in the county in which the land is situated, both the landowner and the individual purchaser of the land, as named in the contract for deed, are treated as a landowner;
(8) "Managers," the board of managers of a watershed district;
(9) "Person," a natural person, firm, partnership, association, limited liability company, or corporation, but not a public or political subdivision;
(10) "Public corporation," a county, municipality, school district, or a political subdivision of the state, other than a watershed district; and
(11) "Work" or "works," any construction, maintenance, repairs, or improvements of a watershed district.
Source: SL 1957, ch 492, § 2; SL 1959, ch 452, § 1; SDC Supp 1960, § 61.1502; SL 1965, ch 303, § 1; SDCL § 46-24-2; SL 1984, ch 297, § 1; SL 1988, ch 367, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1992, ch 60, § 2; SL 1998, ch 36, § 57; SL 2013, ch 228, § 5.
46A-14-4. Conservation purposes supporting establishment.
A watershed district may be established for any of the following conservation purposes:
(1) Control or allocation of damage by floods by flood prevention structures including levees;
(2) Improvement of stream channels;
(3) Reclaiming or filling wet and overflowed lands;
(4) Providing water supply for irrigation;
(5) Regulating the flow and conserving the water of streams;
(6) Diverting or changing watercourses in whole or in part;
(7) Providing and conserving water supply for domestic, industrial, recreational, and other public use;
(8) Providing for sanitation and public health and regulating the use of streams, ditches, or watercourses for the disposition of waste;
(9) Relocate, extend, replace, modify, consolidate, or abandon in whole or in part, drainage systems within a watershed district and to operate and maintain drainage systems;
(10) Imposition of preventive or remedial measures for the control or alleviation of land and soil erosion and siltation of watercourses or bodies of water affected by erosion;
(11) Protection or enhancement of the water quality in watercourses or water basins;
(12) Protection of groundwater; and
(13) Improvement, restoration, and maintenance of lakes, streams, and wetlands.
Source: SL 1957, ch 492, § 4; SL 1959, ch 452, § 2; SDC Supp 1960, § 61.1504; SL 1965, ch 303, § 2; SDCL § 46-24-4; SL 1989, ch 389, § 1; SL 2013, ch 228, § 7.
46A-14-4.1. Functions and duties of commission.
The State Conservation Commission shall perform the following functions and duties with respect to watershed projects:
(1) Review proposed applications for watershed planning assistance under the Federal Watershed and Flood Prevention Act (P.L. 566, 83rd Congress), as amended to January 1, 2013;
(2) Develop policies and procedures for processing such applications in accordance with state law and policies;
(3) Conduct field examination of watersheds with all state and federal agencies and other groups having an interest in development of watersheds;
(4) Determine physical feasibility of proposals for watershed projects;
(5) Recommend priorities for watershed planning assistance under federal P. L. 566;
(6) Make recommendations concerning all applications for planning assistance under federal P. L. 566, to the Board of Water and Natural Resources for consideration in official actions on behalf of the State of South Dakota;
(7) Assist, counsel, and advise conservation district supervisors in the organization of watershed districts under this chapter;
(8) Assist conservation districts within limits of appropriations and personnel with installation and maintenance of the land treatment phase of watershed projects.
The Board of Water and Natural Resources is hereby designated the state agency to act on behalf of the State of South Dakota with respect to watershed projects in order to fulfill the provisions of the Federal Watershed and Flood Prevention Act (P.L. 566, 83rd Congress), as amended to January 1, 2013.
Source: SL 2013, ch 228, § 8.
46A-14-5. Initiating petition for establishment--Filing--Signatures required.
Any proceeding for the establishment of a watershed district shall be initiated by the filing of an initiating petition with each conservation district in which the proposed watershed district is located. The initiating petition shall be as provided in § 6-16-2. If the proposed watershed district includes land in more than one conservation district, the supervisors of each such conservation district shall act jointly as a board of supervisors on all matters concerning the watershed district that are specified in this chapter for a single conservation district.
An official of any municipality authorized by resolution of the governing body may sign the petition on behalf of the municipality if land located within the boundaries of the municipality is to be included in the watershed district. The petition need not be signed by any of the property owners of the municipality.
Source: SL 1957, ch 492, § 5; SL 1959, ch 452, § 3; SDC Supp 1960, § 61.1505 (1); SDCL § 46-24-5; SL 1992, ch 60, § 2; SL 1998, ch 36, § 58; SL 2013, ch 228, § 9.
46A-14-6. Boundaries of district--Contiguous land ownerships.
The boundaries of a watershed district may be entirely within or partly within a county or conservation district and may include the whole or any part of one or more counties or conservation districts. The land ownerships embraced within a watershed district shall be contiguous. If feasible, the district shall include all territory within the affected watershed or drainage basin, or all territory from which the water from natural or artificial channels finds its outlet through a main stream or channel. However, if the ownership of a parcel of land is not a matter of record in the office of the register of deeds of the county in which the land is situated, or if a parcel of land is not subject to payment of taxes or special assessments, the land may be excluded from a proposed or existing watershed district.
Source: SL 1957, ch 492, § 4; SL 1959, ch 452, § 2; SDC Supp 1960, § 61.1504; SL 1965, ch 303, § 2; SDCL § 46-24-6; SL 2011, ch 165, § 521; SL 2013, ch 228, § 10.
46A-14-7. Inclusion of municipality.
In order to carry out the powers granted to municipalities by the provisions of § 9-36-15, the governing body of a municipality may request that all or any portion of the corporate area of a municipality be included in a watershed district if, in the determination of the governing body, inclusion in a new or existing watershed district offers opportunities favorable to the municipality:
(1) For alleviation of flood water damages to roads, streets, waterworks, sewer works, river and stream improvements, public or private property, or other improvements within the municipality; or
(2) In lieu of or betterment of or supplementary to improvements by the municipality as may be under consideration by the governing body; or
(3) To take advantage of federal or other loans, as provided by § 9-43-137, or federal or other grants of funds or service; or
(4) To reduce capital investments or other obligations by the municipality which may be otherwise probable; or
(5) For betterment of the health, safety, or general welfare of the residents of the municipality.
Source: SL 1959, ch 452, § 3; SDC Supp 1960, § 61.1505 (2); SDCL § 46-24-7; SL 2013, ch 228, § 11.
46A-14-8. Initiating petition--Contents.
The initiating petition shall contain the following:
(1) The name of the proposed district;
(2) A statement that there is need in the interest of the public health, safety, and welfare for creation of a district to accomplish improvements in the watershed;
(3) A statement in general terms setting forth the purposes of the contemplated improvements, the territory to be included in the district, and all proposed subdivisions, if any, of the district;
(4) The number of and names of the initial board of managers of the proposed district, the provisions of §§ 6-16-5 and 6-16-5.2 notwithstanding. The initial managers shall serve for a period of one year or until the first annual meeting. The petition shall specify whether the board consists of three or five members. The managers shall be eligible voters of the proposed district or the designee of an eligible voter as provided in § 46A-14-15.1. However, no manager may be a public officer of the state or federal government;
(5) A map and legal description of the lands constituting the proposed district and the name of any municipality included partly or wholly within the boundaries of the proposed district; and
(6) The location of the official place of business of the proposed district.
Source: SL 1957, ch 492, § 5; SL 1959, ch 452, § 3; SDC Supp 1960, § 61.1505 (3); SDCL § 46-24-8; SL 1992, ch 60, § 2; SL 2000, ch 32, § 7; SL 2013, ch 228, § 12.
46A-14-11. Duties of supervisors on receipt of initiating petition.
Upon receipt of the initiating petition by the conservation district, its supervisors shall:
(1) Acknowledge receipt of the petition;
(2) Determine, by working in cooperation with the auditor of each county in which a portion of the proposed district is located, whether the petition contains sufficient signatures as required by § 6-16-2;
(3) Prepare a preliminary report based upon the initiating petition, and other available data, stating the feasibility and practicability of the proposed improvement and organization of the district, for the purpose of presentation by the conservation district supervisors at hearings as provided in this chapter;
(4) Adjust, as necessary, and fix the boundaries of the proposed district.
Source: SL 1957, ch 492, § 5; SL 1959, ch 452, § 3; SDC Supp 1960, § 61.1505 (6); SDCL § 46-24-11; SL 2013, ch 228, § 14.
46A-14-13. Time and place for hearing on initiating petition--Publication of notice--Contents.
If the conservation district supervisors and county auditors determine that a sufficient initiating petition has been filed, the conservation district supervisors shall within ten days, thereafter, by their order, fix a time and place, for a hearing on the petition. Notice of the hearing shall be given by the conservation district supervisors by publication once each week for at least two consecutive weeks in a newspaper of general circulation in the area covered by the proposed district. The last notice shall occur within ten days before the hearing and shall contain the following:
(1) A statement that an initiating petition has been filed with the conservation district supervisors and a copy of the petition with the county auditor of each affected county;
(2) A general description of the purpose of the contemplated improvement and the territory to be included in the proposed district;
(3) The date, time, and place of hearing;
(4) A statement that all persons affected by the petition or interested in the petition may appear and be heard.
Source: SL 1957, ch 492, § 6; SL 1959, ch 452, § 4; SDC Supp 1960, § 61.1506; SDCL § 46-24-13; SL 1972, ch 239, § 8; SL 2013, ch 228, § 16.
46A-14-14. Hearing by conservation district on petition--Right of interested persons to be heard.
At the time and place fixed for the hearing all persons interested in or affected by the proposed formation of the district shall be given an opportunity to be heard. The conservation district supervisors may continue the hearing from time to time as they may deem necessary.
Source: SL 1957, ch 492, § 7; SL 1959, ch 452, § 5; SDC Supp 1960, § 61.1507 (1); SDCL, § 46-24-14.
46A-14-15. Determination that public interest would be served by creation of district--Election on question.
After the hearing, if it appears to the conservation district supervisors that public interest in the conservation of the natural resources within the proposed watershed district, including wildlife, water resources, forests, and soils, will be served and protected; that the engineering and economic practicability of creating a district will be sound and feasible, when considered in relation to the public interest; and the resulting cost to the owners of the property to be assessed and that the purpose of this chapter would be served by the creation of a watershed district, the conservation district supervisors shall order a vote to be taken to determine whether a watershed district should be organized. The conservation district supervisors shall file a copy of the election order and a copy of the initiating petition with the county auditor of each county in which a portion of the proposed watershed district will be located. The election shall be conducted in accordance with the applicable provisions of §§ 6-16-2 to 6-16-6, inclusive.
Source: SL 1957, ch 492, § 7; SL 1959, ch 452, § 5; SDC Supp 1960, § 61.1507 (2); SL 1965, ch 303, § 4; SDCL § 46-24-15; SL 1998, ch 36, § 61; SL 2013, ch 228, § 17.
46A-14-15.1. Eligible voter defined.
For purposes of this chapter, the term, eligible voter, has the meaning specified in this section. Only persons or public corporations that are landowners of land located within the proposed or existing watershed district are eligible to vote in the formation election or any subsequent election of a watershed district, except as provided in this chapter. An eligible voter may reside within or outside the district. Any firm, partnership, limited liability company, association, estate, or corporation that holds title to land located within the proposed or existing watershed district is entitled to one vote and may designate an officer or agent to vote on its behalf by presenting a written instrument to that effect to the election officials. The vote of any eligible voter who is a minor or a protected person as defined by § 29A-5-102, may be cast by the parent, conservator, or legal representative of the minor or protected person. Any municipality that has been included in the watershed district pursuant to §§ 46A-14-5 or 46A-14-7 is entitled to one vote which may be cast by a representative designated by the municipality's governing body.
Source: SL 2013, ch 228, § 18.
46A-14-16. Referendum unnecessary where petition signed by sixty percent of eligible voters.
If the initiating petition is signed by sixty percent or more of the eligible voters in a proposed district who own at least sixty percent of the land in the proposed district, the petition may be accepted by the conservation district supervisors in lieu of the favorable vote at a referendum as specified in § 46A-14-26 and the referendum specified in § 46A-14-15 is not required.
Source: SL 1959, ch 452, § 3; SDC Supp 1960, § 61.1505 (1); SDCL § 46-24-16; SL 1998, ch 36, § 62; SL 2013, ch 228, § 19.
46A-14-26. Organization to proceed on sixty percent favorable vote--New proposal permitted on defeat.
If sixty percent or more of the votes cast at the referendum are in favor of the formation of the watershed district, then the conservation district supervisors shall proceed in its organization. If the proposition to form a watershed district is defeated at the referendum, the proposition may again be proposed in the same manner as the original proposal through initiating petition and subsequent procedure.
Source: SL 1957, ch 492, § 11; SL 1959, ch 452, § 9; SDC Supp 1960, § 61.1511; SDCL § 46-24-26; SL 2013, ch 228, § 21.
46A-14-28. Name of district--Perpetual existence--Findings and order--Political subdivision.
Upon certification of a favorable petition or vote, the conservation district supervisors shall establish and create the watershed district and give it a corporate name. A watershed district created under the provisions of this chapter has perpetual existence unless dissolved or abolished as provided for in this chapter. The supervisors shall file a certified copy of their findings and order with the secretary of state, at which time the watershed district becomes a political subdivision of the state, with the authority, powers, and duties as prescribed in this chapter. The supervisors shall serve copies of the findings and order upon each of the watershed district managers by certified or registered mail.
Source: SL 1957, ch 492, § 12; SL 1959, ch 452, § 10; SDC Supp 1960, § 61.1512; SDCL § 46-24-28; SL 2013, ch 228, § 23.
46A-14-30. Boundaries--Minor adjustments by managers without referendum--Exception.
After creation of a watershed district, minor adjustments to the boundaries of the district may be made by the managers, without referendum, if the adjustments do not delete lands from the district that have been subject to a special assessment during the budget year or the current year and if the adjustments do not include additional land in the district without the written approval of the landowner of the land.
Source: SL 1959, ch 452, § 11; SDC Supp 1960, § 61.1513 (2); SDCL § 46-24-30; SL 2011, ch 165, § 522.
46A-14-31. Annexation of additional areas to watershed district--Procedure.
A watershed district may annex additional areas, if the additional areas constitute a watershed as specified for a watershed district in § 46A-14-6. The annexation shall be accomplished by either:
(1) An initiating petition for the annexation by the eligible voters in the new area and in the existing watershed district, similar to the initiating petition specified in §§ 46A-14-5 and 46A-14-8; or
(2) An initiating petition by the eligible voters in the new area and a resolution by the managers of the watershed district.
Upon receipt of the initiating petition and the resolution by the managers, the appropriate conservation district supervisors shall proceed with the annexation in the same manner as prescribed for creation of a new watershed district.
Source: SL 1959, ch 452, § 11; SDC Supp 1960, § 61.1513 (4); SDCL § 46-24-31; SL 2011, ch 165, § 523; SL 2013, ch 228, § 25.
46A-14-32. Combining of two or more watershed districts into one district--Procedure.
Two or more watershed districts may be combined into a single watershed district by either:
(1) An initiating petition therefor, similar to the initiating petition specified in §§ 46A-14-5 and 46A-14-8; or
(2) Resolutions by the managers stating the desire to combine the watershed districts and containing essentially the same information as prescribed for an initiating petition.
Upon receipt of the initiating petition or resolution by the managers, the appropriate conservation district supervisors shall proceed with the combination of watershed districts in the same manner as prescribed for creation of a new watershed district.
Source: SL 1959, ch 452, § 11; SDC Supp 1960, § 61.1513 (3); SDCL, § 46-24-32.
46A-14-33. Abolishment of original watershed district upon combining districts or annexing additional territory--Certification to secretary of state.
Upon completion of proceedings for combination of watershed districts or for annexation of additional areas to a watershed district, the conservation district supervisors shall abolish the original watershed districts. Certification of abolishment shall be made by the conservation district supervisors to the secretary of state at the same time that certification is made to the secretary of state concerning the creation of the modified watershed district as provided in § 46A-14-28.
Source: SL 1959, ch 452, § 11; SDC Supp 1960, § 61.1513 (5); SDCL, § 46-24-33.
46A-14-34. Powers of district.
A watershed district created under the provisions of this chapter, to the extent necessary for lawful purposes as provided in this chapter, may:
(1) Sue and be sued;
(2) Incur debts, liabilities, and obligations;
(3) Exercise the power of eminent domain only if it is necessary to carry out an approved plan;
(4) Levy a tax not to exceed one dollar per thousand dollars of taxable valuation against the landowners' land and buildings as provided in this chapter;
(5) Provide for other taxes and assessments;
(6) Borrow money and issue certificates, warrants, and bonds;
(7) Make surveys or use other reliable surveys and data and develop projects to accomplish the purposes for which the district is organized;
(8) Cooperate or contract with any individual, person, state, state agency, political subdivision of a state, federal agency, or private or public corporation;
(9) Construct, clean, repair, alter, abandon, consolidate, reclaim, or change the course or terminus of any public ditch, drain sewer, river, watercourse, natural or artificial, within the district, in cooperation with other agencies having prior jurisdiction;
(10) Acquire, lease, operate, construct, and maintain dams, dikes, reservoirs, and pertinent works;
(11) Acquire by gift, lease, purchase, or eminent domain necessary real and personal property;
(12) Contract for purchase of insurance for protection of the district as necessary;
(13) Establish and maintain devices for acquiring and recording hydrological data;
(14) Enter into all contracts of construction authorized by this chapter; and
(15) Perform all acts expressly authorized in this chapter and all other acts necessary and proper for carrying out and exercising the powers expressly vested in the district.
Source: SL 1957, ch 492, § 13; SL 1959, ch 452, § 11; SDC Supp 1960, § 61.1513 (1); SDCL § 46-24-34; SL 1988, ch 367, § 3; SL 2013, ch 228, § 26.
46A-14-35. Oath of office of managers--Filing with conservation district.
Within thirty days after the establishment of the watershed district, the managers shall meet at the designated principal place of business of the district and shall take and subscribe the oath as defined in the Constitution of South Dakota. These oaths shall be filed with the conservation district which contains the majority of the lands of the district.
Source: SL 1957, ch 492, § 15; SL 1959, ch 452, § 12; SDC Supp 1960, § 61.1515; SDCL § 46-24-35; SL 1978, ch 336; SL 2013, ch 228, § 27.
46A-14-36. Officers--Records--Transaction of district's business.
The managers shall then organize by electing one of their members chair and one vice chair. The managers shall appoint a secretary-treasurer, who is not a member of the board of managers, and whose compensation and bond shall be set by the managers. The managers shall provide the necessary books, records, furniture, and equipment for the conduct and transaction of the district's official business.
Source: SL 1957, ch 492, § 15; SL 1959, ch 452, § 12; SDC Supp 1960, § 61.1515; SDCL § 46-24-36; SL 2013, ch 228, § 28.
46A-14-37. Annual election of managers--Terms of office.
Before May first of each year, on dates established by the managers, an annual meeting of the district shall be held during which the eligible voters of the district shall elect, by ballot, under the direction of the secretary of the district, managers to replace those whose terms have expired. At the first annual election, if the board of managers has three members, one shall be elected for one year, one for two years, and one for three years, and thereafter one shall be elected annually for three years. If the board of managers has five members, at the first annual meeting one shall be elected for three years, two shall be elected for two years, and two shall be elected for one year, and thereafter at the annual meeting the terms of those expired, shall be elected for three years.
Source: SL 1957, ch 492, § 17; SL 1959, ch 452, § 13; SDC Supp 1960, § 61.1517; SL 1965, ch 303, § 6; SDCL § 46-24-37; SL 2013, ch 228, § 29.
46A-14-38. Candidates for board of managers--Filing of application--Qualifications.
Candidates for the board of managers shall file their written applications with the secretary of the board of managers at least thirty days before the election. All managers and candidates shall be eligible voters of the district or designees of eligible voters as provided in § 46A-14-15.1. Eligible voters residing within or outside the district may vote in person or by absentee ballot.
Source: SL 1957, ch 492, § 17; SL 1959, ch 452, § 13; SDC Supp 1960, § 61.1517; SL 1965, ch 303, § 6; SDCL § 46-24-38; SL 2013, ch 228, § 30.
46A-14-39. Vacancies on board--Appointments--Terms of office.
Any vacancy in an unexpired term shall be filled by appointment within thirty days of the vacancy by the remaining managers. Any vacancy in an expired term for which no candidate's application has been filed pursuant to § 46A-14-38 shall be filled by appointment within thirty days of the election by the remaining managers. If there are no remaining managers on a board, upon request, the supervisors of the conservation district that contains the majority of the land of the watershed district shall fill the vacancies by appointment. An appointed manager shall hold office for the remainder of the term for which he or she has been appointed.
Source: SL 1957, ch 492, § 17; SL 1959, ch 452, § 13; SDC Supp 1960, § 61.1517; SL 1965, ch 303, § 6; SDCL § 46-24-39; SL 1989, ch 389, § 5; SL 2011, ch 165, § 524; SL 2020, ch 195, § 1, eff. Mar. 26, 2020.
46A-14-39.1. Watershed district--Reactivation--Hearing.
If the conservation district supervisors receive a request to reactivate a watershed district, the conservation district supervisors shall, within ten days thereafter, by their order, fix a time and place for a hearing on the request. Notice of the hearing shall be given by the conservation district supervisors by publication once each week for at least two consecutive weeks in a newspaper of general circulation in the area covered by the watershed district. The last notice shall occur within ten days before the hearing and shall contain the following:
(1) A statement that a request has been filed with the conservation district supervisors;
(2) A general description of the territory included in the watershed district;
(3) The date, time, and place of the hearing; and
(4) A statement that all persons affected by the request or interested in the request may appear and be heard.
Source: SL 2020, ch 195, § 2, eff. Mar. 26, 2020.
46A-14-39.2. Reactivated watershed district--Implementation of new tax levy.
If a watershed district is reactivated in accordance with § 46A-14-39.1, the reactivated watershed district shall comply with the provisions and procedures established in §§ 46A-14-47 through 46A-14-58 to implement any new tax levy authorized under this chapter. Once the new tax levy is implemented, the reactivated watershed district is no longer required to comply with the provisions of this section and will have met the requirements of §§ 10-13-35.12 and 10-13-35.13.
Source: SL 2020, ch 195, § 3, eff. Mar. 26, 2020.
46A-14-40. Advisory committee--Appointment by board of managers--Number of members--Duties.
The managers shall appoint an advisory committee consisting of not less than five members who shall be representatives of the major activities in the district including conservation district activities. The committee shall advise and make recommendations to the managers upon all matters affecting the interests of the district but the managers shall have final authority for decisions made.
Source: SL 1957, ch 492, § 18; SL 1959, ch 452, § 14; SDC Supp 1960, § 61.1518; SDCL, § 46-24-40; SL 1989, ch 389, § 6.
46A-14-41. Appointment of personnel--Performance bond.
The managers may appoint or employ an engineer, professional assistants, and such other employees as may be necessary, and provide for their qualification, duties, and compensation, which, with all other expenses may be included as a part of the cost of a project or improvement. The managers may require any officer or employee of the district to give a bond for the faithful performance of his or her duties, in an amount prescribed by the managers. The cost of the bond shall be paid from funds of the district.
Source: SL 1957, ch 492, § 19; SDC Supp 1960, § 61.1519; SDCL § 46-24-41; SL 2013, ch 228, § 31.
46A-14-42. Compensation of board members--Limitation.
Any member of a watershed district board may receive travel and subsistence expense at the rates set pursuant to chapter 3-9. In addition, per diem, not to exceed sixty dollars per day, may be paid each member for each day of actual service for attending meetings, hearings, or investigations of the watershed district board.
Source: SL 1957, ch 492, § 15; SL 1959, ch 452, § 12; SDC Supp 1960, § 61.1515; SDCL, § 46-24-42; SL 1989, ch 389, § 7; SL 2024, ch 20, § 20.
46A-14-43. Duties of board of managers--Adoption of seal--Record of business transacted--Bylaws and regulations, adoption--Meetings, notice.
The board of managers shall:
(1) Adopt a seal;
(2) Keep a record of all proceedings, minutes, certificates, contracts, bonds, or employees and other business transacted by the managers;
(3) Adopt bylaws and regulations consistent with the chapter;
(4) Meet annually and such other times as may be necessary. A meeting may be called at any time by the chairman or at the request of any manager through the chairman. When so requested the secretary of the district shall mail a notice of such meeting to each member at least ten days prior thereto.
Source: SL 1957, ch 492, § 15; SL 1959, ch 452, § 12; SDC Supp 1960, § 61.1515; SDCL, § 46-24-43; SL 1993, ch 256, § 86.
46A-14-43.1. District bylaws may be proposed by petition--Approval by board and special election.
In addition to the procedures provided in § 46A-14-43 for adopting watershed district bylaws, bylaws may be proposed by petition of twenty-five percent of the eligible voters of the district. The proposed bylaws shall be adopted if approved by the board of managers of the watershed district and if at least sixty percent of the votes cast in a special election on the issue are in favor of adopting the proposed bylaws.
Source: SL 1989, ch 389, § 8; SL 2013, ch 228, § 32.
46A-14-45. Vested water rights--Exclusion from operation of chapter.
Vested water rights, as defined by §§ 46-1-9 and 46-1-10, are excluded from the operation of this chapter. No watershed district and no members of the watershed district have any jurisdictional authority or control over waters subject to such vested rights.
Source: SL 1957, ch 492, § 1; SDC Supp 1960, § 61.1501 (5); SDCL § 46-24-45; SL 2011, ch 165, § 525.
46A-14-46. Vested drainage rights--Exclusion from operation of chapter.
Vested drainage rights as defined by chapters 46A-10A to 46A-13, inclusive, shall be excluded from the operation of this chapter, until such a time as the operation of any drainage district can be absorbed by the watershed district, to the satisfaction of the then controlling board of county commissioners, or board of commissioners appointed by the county commissioners, or the board of trustees elected by the people of the district.
Source: SL 1957, ch 492, § 1; SDC Supp 1960, § 61.1501 (6); SDCL, § 46-24-46.
46A-14-47. General improvement plan--Consultation with advisory committee and supervisors of conservation districts--Contents--Steering committee preparation of preliminary plan.
The managers shall within a reasonable length of time after qualifying, adopt an overall plan for improvements within the district for reclamation, drainage, erosion, and flood control, and improvement of lands, soils, waters, forests, wildlife, and all other authorized purposes. The plan finally adopted shall be made in conjunction with the advisory committee established pursuant to § 46A-14-40 and in consultation with the district supervisors of each conservation district in the watershed district, but the managers have final authority and full responsibility. This plan shall be designated the general improvement plan for the watershed district. The general improvement plan shall consist of a map showing the area to be benefited; the location of the proposed works of improvement; the location of buildings, roads, streams, and other topographic features as are pertinent to show the relation of the proposed works of improvement to the area of the district; and a narrative in which are stated the estimated benefits that will result and the proposed method of financing and accomplishing the work to be done. Upon receipt of a copy of the general improvement plan, the Board of Water and Natural Resources shall examine the plan and within thirty days transmit a report of their recommendations to the managers.
Before formation of a watershed district, requests for planning assistance, development of watershed work plans, and similar considerations may be undertaken by steering committees of local people with sponsoring assistance by conservation districts as permitted under state law and in accordance with federal laws. Such plans may be considered as the preliminary general improvement plan until the final general improvement plan is adopted as provided in this section.
Source: SL 1957, ch 492, § 21; SL 1959, ch 452, § 16; SDC Supp 1960, § 61.1521 (1); SDCL § 46-24-47; SL 1995, ch 253, § 6; SL 2013, ch 228, § 34.
46A-14-48. Determination of priority of specific projects--Surveys of work--Estimates--Reports of engineer, filing, public inspection.
After the general improvement plan of the district has been adopted, as provided in § 46A-14-47, the managers shall determine the order in which specific projects included in the general plan shall be undertaken and shall cause accurate surveys of all work deemed necessary to be done and accurate estimates and calculations to be made by the engineer, as provided in this chapter. The engineer shall make written reports showing the amount, character, and kind of work to be done and the location and estimated cost thereof. Any engineer's report shall include:
(1) A description of any area to be benefited by the project and each of the major works of improvement;
(2) The starting point, the route, and the terminus of any proposed drainage ditches or flood control canals;
(3) The course and length of any drain through each tract of land with the number of acres to be acquired from each tract for construction;
(4) A topographical map showing the location and size of any lake, pond, or depression in areas benefited by drainage or flood control canals, together with the approximate location of any natural subdivide;
(5) The project's probable cost;
(6) Data establishing the presence of a suitable outlet for project waters; and
(7) Any such other fact as may be material to determine the practicability of the various project features.
The reports shall be filed in the office of the managers and at all reasonable times shall be open to public inspection.
Source: SL 1957, ch 492, § 22; SL 1959, ch 452, § 17; SDC Supp 1960, § 61.1522; SDCL, § 46-24-48; SL 1985, ch 364, § 1; SL 1995, ch 253, § 7.
46A-14-51. Examination of and hearings on plans--Resolution as to payment of costs by general tax levy, special assessment, or improvement bonds--List of benefited lands and owners.
The managers shall carefully examine the plans and hold hearings on the proposals in the plans. By resolution, the managers shall resolve whether the proposed work, or any part of the proposed work, should be accomplished and whether its cost shall be paid by a general tax levy against all taxable landowners' land and buildings located within the district, or by special assessment against the landowners' lands and buildings within the district to be specially benefited by the project, or by both general tax levy and special assessment and the portion to be paid by each. The managers shall prepare a description of each tract of benefited land and shall list the names of the owners of the benefited land as shown by the county tax records, which document shall be on file in the district office and available for public inspection during regular business hours. The managers shall also determine in the resolution whether to issue improvement bonds of the district, or other authorized arrangement, to provide for the payment of the cost of the project by installments instead of levying the entire tax or special assessment at one time.
Source: SL 1957, ch 492, § 23; SL 1959, ch 452, § 18; SDC Supp 1960, § 61.1523 (1); SDCL § 46-24-51; SL 1985, ch 364, §§ 2, 4; SL 1995, ch 253, § 8; SL 2013, ch 228, § 37.
46A-14-53. Contract with conservation districts for funding.
The managers may enter into a contract with the supervisors of a conservation district or districts for funds necessary for operation, maintenance, and other obligations set forth in the watershed financial plan approved pursuant to § 46A-14-51, and funds for such purpose shall be made available to the conservation district by the county commissioners pursuant to § 38-8-49.1.
Source: SL 1971, ch 255; SDCL Supp, § 46-24-52.1; SL 1985, ch 77, § 39.
46A-14-54. Publication of resolution and notice of hearing--Apportionment of benefits.
Upon adoption of the resolution as provided in § 46A-14-51, the managers shall publish the resolution and a notice of hearing once each week for three consecutive weeks immediately preceding the hearing in a legal newspaper of general circulation in each county in which land of the district is located. The notice shall state the time and place for the hearing and state that the managers will meet for the purpose of hearing all parties interested in the apportionment of benefits by reason of the proposed improvements. The notice shall state that all such interested parties may provide testimony at the hearing in person, or by counsel, or may file written testimony. The managers shall conduct the hearing and shall make the apportionments fair and just according to benefits received from the improvements and give due credit for the work already done.
Source: SL 1957, ch 492, § 23; SL 1959, ch 452, § 18; SDC Supp 1960, § 61.1523 (4); SDCL § 46-24-53; SL 2013, ch 228, § 39.
46A-14-55. Hearing and referendum on financing arrangements.
For purposes of implementing the general plan of improvements, no construction or related commitments requiring district payments may be entered into, no taxes or assessments levied, no bonds issued, or other financing arrangement made relating to the general plan of improvements, unless the managers have initiated adequate hearings to clearly demonstrate the works proposed for construction and the benefits to accrue from the proposed works and have conducted a referendum in accordance with this chapter in which at least sixty percent of the eligible voters voting in the referendum vote in favor of the tax levy, bond issue, or other permissible financing arrangement. The hearing and referendum requirements specified in this section do not apply to taxes or other financing arrangements for operations, maintenance, or other district business as provided in §§ 46A-14-58 and 46A-14-69.
Source: SL 1957, ch 492, § 23; SL 1959, ch 452, § 18; SDC Supp 1960, § 61.1523 (3); SDCL § 46-24-54; SL 2011, ch 165, § 527; SL 2013, ch 228, § 40.
46A-14-56. Referendum on financing arrangements--Eligibility to vote--Counting of votes.
In the referendum, as provided in § 46A-14-55, the same eligibility to vote as prescribed by § 46A-14-15.1 shall govern in the case of proposed general tax levies. If special assessments are proposed, the votes of only those landowners subject to the special assessments may be counted. If the financing proposal provides for both general tax levies and special assessments, the votes applicable to the general tax and the votes applicable to the special assessments shall be counted separately and accepted separately for purposes of determining the outcome of the referendum.
Source: SL 1959, ch 452, § 18; SDC Supp 1960, § 61.1523 (3); SDCL § 46-24-55; SL 2013, ch 228, § 41.
46A-14-57. Annual payments by municipality to district in lieu of tax or special assessment levies--Favorable vote by voters of municipality required.
In lieu of tax or special assessment levies in municipalities, the managers and the governing boards of municipalities may enter into contracts for annual payments by the municipality to the district. The governing boards shall include amounts sufficient to cover the annual payments to the district in the annual appropriations of the municipalities. If contractual commitments between a district and a municipality are to meet in part obligations imposed by a contract or other agreement between the district and an agency of the United States, the commitments on behalf of a municipality shall be a continuing annual obligation during the life of the contract between the district and the United States in the same manner as though the municipality had entered into the contract or agreement with the United States under provisions of § 9-36-15 or 9-43-137. In no case may the governing board of a municipality execute a contract or agreement with the managers of a district until a favorable vote by the voters of the municipality has been obtained in order that claims for payment may be paid by the municipality under provisions of § 9-42-2.
Source: SL 1957, ch 492, § 23; SL 1959, ch 452, § 18; SDC Supp 1960, § 61.1523 (5)(b); SDCL § 46-24-56; SL 1970, ch 20, § 1 (4); SL 1992, ch 60, § 2; SL 2013, ch 228, § 42.
46A-14-58. Resolution approving tax or assessment levy--Detailed reports.
After completing the apportionment of benefits and the referendum pursuant to §§ 46A-14-54 and 46A-14-55 for purposes of implementing the general plan of improvements, the managers shall prepare and by resolution approve the tax or assessment levy against landowner's land and buildings outside of the corporate limits of municipalities and shall file a detailed report of the tax or assessment levy with the appropriate county auditor. In addition, the managers shall prepare and by resolution approve the tax or assessment levy for operations, maintenance, and other district business as provided in § 46A-14-69 and file a detailed report of the tax or assessment levy with the appropriate county auditor. The county auditor shall spread the district levy upon the county tax rolls and collect the district levy in the same manner as other county taxes.
Source: SL 1957, ch 492, § 23; SL 1959, ch 452, § 18; SDC Supp 1960, § 61.1523 (5)(a); SDCL § 46-24-57; SL 2013, ch 228, § 43.
46A-14-59. Assessed valuation for district tax purposes--Limitation on land taxed.
The assessed valuation for district tax purposes shall be the same assessed valuation that is used for general county levies. However, if a majority of the landowners to be taxed or assessed to finance works owns less than ten acres of land, no such landowner may be taxed or assessed against more than ten acres of land.
Source: SL 1957, ch 492, § 23; SL 1959, ch 452, § 18; SDC Supp 1960, § 61.1523 (6); SDCL, § 46-24-58; SL 1984, ch 297, § 4.
46A-14-60. Annual general tax levy against land and buildings--Maximum amount.
When adopting a financing plan or levying taxes to cover the estimated costs of district business, including costs relating to implementing the general plan of improvements, as provided in §§ 46A-14-51 and 46A-14-54 to 46A-14-59, inclusive, and operations and maintenance expense as provided in § 46A-14-66 to 46A-14-69, inclusive, no annual general tax levy against taxable land and buildings within the district may exceed the amount that can be collected by a one-mill levy. This limitation does not apply to special assessments nor to assessments required to meet payments, including interest, on district bonds.
Source: SL 1957, ch 492, § 30; SL 1959, ch 452, § 24; SDC Supp 1960, § 61.1530 (1); SDCL § 46-24-59; SL 2011, ch 165, § 528; SL 2013, ch 228, § 44.
46A-14-61. Taxes collected by county officials--Delivery to district secretary-treasurer.
After collection the appropriate county officials shall each month deliver the taxes collected on behalf of the district to the district secretary-treasurer.
Source: SL 1957, ch 492, § 23; SL 1959, ch 452, § 18; SDC Supp 1960, § 61.1523 (5)(c); SDCL, § 46-24-60.
46A-14-62. Interested party aggrieved by apportionment of benefits or levy of taxes and assessments--Appeal, procedure.
Any interested party claiming to be aggrieved by such apportionment of the benefits or taxes or assessments levied in accordance therewith may appeal in accordance with procedures established by state law for review of tax levies.
Source: SL 1957, ch 492, § 24; SL 1959, ch 452, § 19; SDC Supp 1960, § 61.1524; SDCL, § 46-24-61.
46A-14-63. No-fund warrants to pay district obligations--Limitation on amounts.
Following a favorable vote by the voters as provided in § 46A-14-55 and in anticipation of tax or special assessment collections, the managers may issue no-fund warrants to pay district obligations. However, the outstanding amounts of the no-fund warrants may not exceed the product of two mills times the assessed valuation of the landowner's taxable land and buildings within the district.
Source: SL 1957, ch 492, § 30; SL 1959, ch 452, § 24; SDC Supp 1960, § 61.1530 (2); SDCL § 46-24-62; SL 2011, ch 165, § 529.
46A-14-64. Long-term financing arrangement authorized by voters--Notice to landowners--Suit to set aside--Collection.
If a bond issue or other authorized long-term financing arrangement is authorized by the voters of the district, the managers shall immediately cause a written notice to be mailed to the owner or owners of each tract of land assessed of the amount of the assessment. The notice shall state that if the amount is not paid in full within thirty days after the date of the notice, bonds will be issued or payment contracts negotiated and that an assessment will be levied annually against the tract of ground for a period of not to exceed fifty years in an amount sufficient to pay the total assessment plus the interest due on the bonds. No suit to set aside the assessment may be brought after the expiration of thirty days from the date of the notice. The amount levied against each tract of land to pay for the bonds, or contract commitments, falling due each year and the interest on the bonds or contract commitments, shall be levied, certified to the proper county auditor, and collected the same as other taxes.
Source: SL 1957, ch 492, § 25; SDC Supp 1960, § 61.1525; SL 1961, ch 458; SDCL § 46-24-63; SL 2011, ch 165, § 530.
46A-14-65. Amended or supplemental general plan of improvements--Special election on additional taxes or special assessments.
The managers may amend the general plan of improvements or adopt a supplemental plan of improvements by using, as applicable, the same provisions and procedures in §§ 46A-14-47 to 46A-14-58, inclusive, that were used to establish the initial plan of improvements. The managers may call a special election and submit to the eligible voters of the district the question of whether additional taxes or special assessment shall be levied for the purpose of raising money to cover increased costs resulting from an amended or supplemental plan of improvements which are over and above the initial plan of improvements.
Source: SL 1957, ch 492, § 26; SL 1959, ch 452, § 20; SDC Supp 1960, § 61.1526; SDCL § 46-24-64; SL 1989, ch 389, § 9; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1995, ch 253, § 9; SL 2013, ch 228, § 45.
46A-14-66. Annual maintenance of watershed project--Project schedule--Budgets.
Once projects from the general plan of improvements are constructed, the managers shall provide for adequate annual maintenance of the watershed project works. They shall adopt an overall project schedule of routine operation and maintenance. They shall prepare annual operation and maintenance budgets for the following calendar year in which is stated the operation and maintenance work to be done during the budget year and the estimated cost.
Source: SL 1957, ch 492, § 27; SL 1959, ch 452, § 21; SDC Supp 1960, § 61.1527; SDCL § 46-24-65; SL 2013, ch 228, § 46.
46A-14-67. Annual operation and maintenance budget, provisions--Reserve fund.
The annual operation and maintenance budget shall include provisions for accumulation of a reserve fund for extraordinary maintenance or operation. The amount budgeted each year for the reserve fund shall be at least ten percent of the estimated cost of the annual routine operation and maintenance. Annual increments for the reserve fund shall be budgeted whenever the balance in the accumulated reserve fund is less than the current annual operation and maintenance budget. Expenditures from the reserve fund may be made by the managers whenever, in their judgment, extraordinary operation or maintenance of the project works is necessary.
Source: SL 1957, ch 492, § 27; SL 1959, ch 452, § 21; SDC Supp 1960, § 61.1527; SDCL, § 46-24-66.
46A-14-69. Budgeted operation and maintenance expense--Inclusion in tax assessment list.
Tax or special assessment levies in amount sufficient to cover the budgeted operation and maintenance expense for district projects and works as provided in § 46A-14-66 and other district operations and expenses shall be included by the managers in their tax assessment list as provided in § 46A-14-58, if the levies do not exceed the limitations specified in this chapter or do not exceed the amounts of taxes or special assessments voted favorably by the voters of the district.
Source: SL 1957, ch 492, § 27; SL 1959, ch 452, § 21; SDC Supp 1960, § 61.1527; SDCL § 46-24-68; SL 2011, ch 165, § 531; SL 2013, ch 228, § 47.
46A-14-70. Budget--Operations and budget report--Publication--Hearing--Certification and collection of taxes and assessments.
The board of managers of a watershed district shall at the time of the organization of the board and annually thereafter on a date established by the district, but before the first of October, adopt a budget and prepare an operations and budget report. The report shall present estimates and itemizations of all the expenses and obligations of the water development district. Before approval of the budget by the district board of managers, a public hearing shall be held. Notice of the hearing shall be published once each week for two successive weeks in the watershed district's official newspapers. With the first notice, the budget shall be published in a form approved by the auditor general. At the conclusion of the hearing, the board of managers may eliminate or amend any portion of the budget before adoption.
On or before the first day of October in each year and after the watershed district's budget hearing, the managers shall certify to the county auditor of the county in which the land is located, all taxes and assessments against the landowners' lands and buildings in the district. Extension of the taxes and assessments upon the tax and assessment lists shall be made as specified in § 46A-14-58. The taxes and assessments shall be collected in the same manner as other county taxes and assessments, and shall be deposited with the secretary-treasurer of the watershed district, who shall place them in the depository designated by the managers. The taxes and assessments shall be disbursed according to § 46A-14-75.
Source: SL 1957, ch 492, § 33; SL 1959, ch 452, § 27; SDC Supp 1960, § 61.1533; SDCL § 46-24-69; SL 2011, ch 165, § 532; SL 2013, ch 228, § 48.
46A-14-71. Contributions by board of county commissioners to watershed district supplies, labor, and equipment.
The board of county commissioners may contribute to watershed districts supplies, labor, and equipment to benefit the county highway system, for maintenance of flood control, water management, and erosion control measures. The contributions to the districts shall be paid for from the general fund.
Source: SDC 1939, § 12.0617 (14) as added by SL 1961, ch 30; SDCL, § 46-24-70; SL 1985, ch 77, § 30.
46A-14-72. Acquisition of real estate or easement therein by watershed district--Purchase--Condemnation, appraisal of premises involved.
The watershed district may purchase such real estate or easement therein as it may need and if it cannot agree on the purchase price on any needed real estate or easement therein, it may condemn the same. If the watershed district finds it expedient or necessary for the maintenance of any part of its improvement already constructed to add thereto further construction in the nature of settling basins, conservation lakes, or other improvements, the watershed district, if not able to agree with the landowner on the terms for the acquisition of the interest in land needed or the yearly cash rental of any premises taken and used for such purpose, may condemn for the purpose of fixing the amount to be paid for the interest in the land or the yearly rental for the land so taken. The appraisal of the premises involved shall be made by a committee composed of the aggrieved, a district manager, and these two shall elect a third member. If the watershed district takes or damages the real estate of any minor or protected person, the conservator of such minor or protected person may agree and settle with the watershed district for all damages or claims by reason of taking such real estate or easement, and may give valid releases and discharge therefor.
Source: SL 1957, ch 492, § 28; SL 1959, ch 452, § 22; SDC Supp 1960, § 61.1528; SDCL, § 46-24-71; SL 1993, ch 213, § 246.
46A-14-73. Contracts between district and others--Purposes--Referendum by voters where contract will require increased taxes or assessments.
The managers may enter into contracts or other arrangements with any agency of the United States government; with persons, railroads, or other corporations; with public and municipal corporations and the state government of this state; or with drainage, soil and water conservation, conservancy, sewer, park, sanitary, reclamation, public power, public power and irrigation, watershed, or other improvement districts, in this or other states, for cooperation, or assistance in constructing, maintaining, using, and operating the works of the districts, the waters of the districts, or in minimizing or preventing damage to the properties, works, and improvements of the districts from soil erosion; or for making surveys and investigations or reports on the surveys and investigations. However no contract or agreement for purposes of implementing the general plan of improvements that will require the levy of increased taxes or assessments may be signed by the managers without submitting the increased taxes or assessments to the eligible voters of the watershed district for approval.
Source: SL 1957, ch 492, § 29; SL 1959, ch 452, § 23; SDC Supp 1960, § 61.1529; SDCL § 46-24-72; SL 2011, ch 165, § 533; SL 2013, ch 228, § 49.
46A-14-74. Funds of district--Deposit by secretary-treasurer in approved depository--Warrants.
All funds of the district shall be deposited by the district secretary-treasurer in a depository designated and approved by the managers at a regular meeting, and all warrants as provided for in § 46A-14-75, shall be drawn on the watershed district.
Source: SL 1957, ch 492, § 32; SL 1959, ch 452, § 26; SDC Supp 1960, § 61.1532; SDCL, § 46-24-73.
46A-14-75. Claims against district--Payment by warrant or order--Registration.
All claims against watershed districts shall be paid by warrants or orders drawn on the district secretary-treasurer, signed by the chair of the district and countersigned by its secretary-treasurer. When warrants or orders have been issued and delivered, they may be presented to the treasurer of the watershed district. If necessary, the treasurer shall endorse them "not paid for want of funds." These orders or warrants shall be registered by the secretary-treasurer in order of presentation and shall draw interest per year at a rate negotiated by the parties from the date of registration. They shall be registered by the district secretary-treasurer in anticipated receipt of watershed district taxes or assessments due the district.
Source: SL 1957, ch 492, § 31; SL 1959, ch 452, § 25; SDC Supp 1960, § 61.1531; SDCL § 46-24-74; SL 1983, ch 28, § 63; SL 2011, ch 165, § 534.
46A-14-76. Services performed by county officials and Board of Water and Natural Resources free of charge.
All county officials shall perform the services outlined in this chapter free of charges to the district. The services of the Board of Water and Natural Resources as provided in this chapter, also shall be free of charges to the district.
Source: SL 1957, ch 492, § 32; SL 1959, ch 452, § 26; SDC Supp 1960, § 61.1532; SDCL, § 46-24-75.
46A-14-77. Annual reports of district engineer, secretary, and managers.
The engineer of the district shall make a full report to the managers each year or more often if necessary. At the end of each year the secretary-treasurer shall make a report to the managers. The managers shall annually make and file a report of financial conditions of the district, the status of all projects and work, the business transacted by the district, and other matters affecting the interests of the district.
Source: SL 1957, ch 492, § 19; SDC Supp 1960, § 61.1519; SDCL § 46-24-76; SL 1995, ch 253, § 11; SL 2013, ch 228, § 50.
46A-14-80. Operation of watershed district, investigation by board--Hearings, order to correct detrimental operation--Enforcement of order by injunction.
The Board of Water and Natural Resources may at any time investigate the operations of any watershed district and if it discovers such operations are detrimental to the proper utilization of waters or existing rights or that the conduct of the operations as to the waters in the particular district are not being conducted in a manner which the board believes is providing the greatest utilization of such waters, then the board may in its discretion hold a hearing to develop the necessary facts and information. Thereupon, if the board decides that affirmative action is required to correct the practices engaged in by such district the board shall order the managers to correct the detrimental operation. In case of failure by the managers to make the corrections ordered, the board is empowered to procure an order from a court of competent jurisdiction to prevent the district from further engagement in such detrimental operations.
Source: SL 1957, ch 492, § 20; SL 1959, ch 452, § 15; SDC Supp 1960, § 61.1520; SDCL, § 46-24-79.
46A-14-81. Dissolution of district where federal watershed project not certified infeasible--Special election--Notice--Ballots.
After a watershed district has been in existence for at least five years and contains a federal watershed project that has not been certified infeasible by the state conservationist of the United States Natural Resources Conservation Service, whenever twenty-five percent of the eligible voters of the district petition the managers to call a special election to submit to the eligible voters of the watershed district a proposition to vote on the discontinuance of the watershed district and a settlement of its bonded and other indebtedness, the managers shall call a special election for those purposes and shall publish notice of the election in a legal newspaper of general circulation in the county or counties in the watershed district once each week for three consecutive publications. The notice shall state that an election is to be held to determine whether the watershed district should be dissolved. The ballots shall read as follows:
For dissolution of (Name) Watershed District ()
Against dissolution of (Name) Watershed District ()
Source: SL 1957, ch 492, § 34; SL 1959, ch 452, § 28; SDC Supp 1960, § 61.1534; SDCL § 46-24-80; SL 1980, ch 312, § 1; SL 1989, ch 389, § 10; SL 2013, ch 228, § 54.
46A-14-82. Dissolution of district--Federal project not certified infeasible--Special election--Percent required to dissolve--Notice to creditors--Auction--Proration of funds remaining.
If sixty percent of the votes cast under the provisions of § 46A-14-81 are for dissolution, the managers shall immediately notify all persons having claims against the district in whatever form they may exist. The real and personal property of the district shall be sold by auction to the highest bidder, as directed by the managers. After all obligations have been met, the remaining funds, if any, shall be prorated back to the landowners in proportion to their last year of assessment.
Source: SL 1957, ch 492, § 34; SL 1959, ch 452, § 28; SDC Supp 1960, § 61.1534; SDCL, § 46-24-81; SL 1980, ch 312, § 3; SL 1988, ch 367, § 4.
46A-14-83. Dissolution of district--Federal project not certified infeasible--Proposal defeated, three years before another vote on question.
If the vote authorized by § 46A-14-81 is against dissolution there may not be another vote for three years.
Source: SL 1957, ch 492, § 34; SL 1959, ch 452, § 28; SDC Supp 1960, § 61.1534; SDCL, § 46-24-82; SL 1980, ch 312, § 3.
46A-14-84. Request that federal project be certified infeasible.
A watershed district board may request that the state conservationist of the United States Natural Resources Conservation Service certify a federal project as infeasible. If the project is certified as infeasible, the district board may proceed to dissolve the district under the provisions outlined in §§ 46A-14-85 to 46A-14-89, inclusive.
Source: SL 1980, ch 312, § 4; SDCL Supp, § 46-24-82.1; SL 2013, ch 228, § 55.
46A-14-85. Dissolution of district where federal watershed project certified infeasible.
If a watershed district's federal project is certified as infeasible, the district board may vote to dissolve the district. If a majority of board members vote for dissolution, a written statement of intent to dissolve the district shall be submitted to the State Conservation Commission for approval.
Source: SL 1980, ch 312, § 5; SDCL Supp, § 46-24-82.2; SL 2013, ch 228, § 56.
46A-14-86. Public hearing--Publication of notice.
Before action by the State Conservation Commission as provided in § 46A-14-85, a public hearing open to all eligible voters in the watershed district shall be held by the commission to determine public feeling within the district. The district board may conduct an informal vote to determine voter opinion on dissolution if the board feels a vote is necessary. Notice of the meeting shall be published by the watershed district board in the major newspaper in the district at least once a week for at least two weeks before the meeting.
Source: SL 1980, ch 312, § 6; SDCL Supp, § 46-24-82.3; SL 2013, ch 228, § 57.
46A-14-87. State Conservation Commission determination on proposed dissolution.
After the public hearing required by § 46-14-86, the State Conservation Commission shall determine whether the proposed dissolution is to be allowed. In making its determination, the commission shall consider written and verbal reports by the watershed district board, the public attitude displayed at the public hearing, and all other information the members of the commission deem relevant. At least one watershed district board member shall be present at the commission meeting to testify.
Source: SL 1980, ch 312, § 7; SDCL Supp, § 46-24-82.4; SL 2013, ch 228, § 58.
46A-14-88. Effective date of dissolution.
If the members of the State Conservation Commission choose to approve a watershed district dissolution, the dissolution is effective thirty days from the date of the commission meeting. Notice of the dissolution of a watershed district shall be sent to the secretary of state.
Source: SL 1980, ch 312, § 8; SDCL Supp, § 46-24-82.5; SL 2013, ch 228, § 59.
46A-14-89. Division and apportionment of funds and assets of dissolved district.
All funds and assets of a dissolved watershed district shall be divided among all conservation districts lying at least partially within the dissolved district. The funds and assets shall be apportioned on the basis of each conservation district's land area in areas within the dissolved district. The requirements of this section relating to the division and apportionment of watershed district funds and assets do not apply to any watershed district that is abolished pursuant to § 46A-14-33 in conjunction with combining the watershed district with another watershed district or annexing additional areas to the watershed district.
Source: SL 1980, ch 312, § 9; SDCL Supp, § 46-24-82.6; SL 2013, ch 228, § 60.
46A-14-91. Vested rights protected.
Nothing in this chapter in any way may affect the vested water or drainage rights of any person, governmental subdivision or public corporation organized or in existence prior to July 1, 1957.
Source: SL 1957, ch 492, § 35; SDC Supp 1960, § 61.1535; SDCL, § 46-24-83; SL 1985, ch 364, § 3.
CHAPTER 46A-15
MISSOURI RIVER DEVELOPMENT
46A-15-1 Cooperation with other governmental agencies in promotion and development--Authority of Governor.
46A-15-2 Disbursement of funds.
46A-15-3 46A-15-3. Repealed by SL 1988, ch 368.
46A-15-4 Improving navigation on Missouri river--Expenditure of funds by counties upon voter approval--Appropriations.
46A-15-5 Settlement of state claim relating to Pick-Sloan Missouri Basin Program authorized--Damages and obligations enumerated.
46A-15-6 Settlement framework--Short-term objectives.
46A-15-7 Long-term objectives.
46A-15-8 Authorization of additional future projects not precluded.
46A-15-9 Missouri River cost recovery program established as part of settlement--Use of revenue.
46A-15-10 Legislative finding as to Missouri River cost recovery program--Authorized as preferred, priority state objective.
46A-15-11 Missouri River cost recovery authority established--Recommendation of options by authority--Limits on recommended options.
46A-15-12 Composition of authority--Chairman--Submission of recommendations--Dissolution.
46A-15-13 Expenses of members--Staff services--Payment of expenses incurred.
46A-15-14 Governor authorized to negotiate, make agreements, with federal government.
46A-15-1. Cooperation with other governmental agencies in promotion and development--Authority of Governor.
The Governor is authorized to cooperate in behalf of the state with other states and with the federal government in the promotion of and development of the Missouri River as an agency to produce cheap power, create irrigational opportunity, lessen the cost of transportation by navigation thereof, and curtail the destructive effects of erosion and the carrying forward of silt and aid in the control of flood waters thereof.
Source: SDC 1939, § 55.4801; SDCL, § 46-27-1.
46A-15-2. Disbursement of funds.
The Governor may use funds appropriated by the Legislature or which may be received from any other source for such specific purpose in carrying out the provisions and intent of § 46A-15-1. The funds shall be disbursed by warrant of the state auditor upon the state treasurer upon vouchers approved by the Governor.
Source: SDC 1939, § 55.4802; SDCL § 46-27-2; SL 2011, ch 165, § 535.
46A-15-4. Improving navigation on Missouri river--Expenditure of funds by counties upon voter approval--Appropriations.
The county commissioners of any county bordering the Missouri River may, upon an affirmative vote of the qualified voters of the county, expend money for the purpose of improving navigation on the river where the river borders the county. The funds shall be expended in conjunction with appropriations made by the United States government in proportionate amounts as may be agreed upon by the county board of commissioners and the chief of engineers of the United States Army for the purpose of aiding in the securing of a permanent navigable channel in the river. The funds shall be expended in accordance with plans conforming to the character and approved methods of improvement of the river as determined by the chief of engineers of the United States Army.
The county commissioners may appropriate moneys out of the general funds of the county available for county purposes to meet the expense of any such improvements.
Source: SDC 1939, § 12.2902; SDCL § 46-27-4; SL 2011, ch 165, § 536.
46A-15-5. Settlement of state claim relating to Pick-Sloan Missouri Basin Program authorized--Damages and obligations enumerated.
The state shall proceed as quickly as possible to enact and implement at the state and federal levels a settlement, pursuant to §§ 46A-15-5 to 46A-15-14, inclusive, of South Dakota's claims resulting from damages and unfulfilled federal obligations to South Dakota relating to the Pick-Sloan Missouri Basin Program created by the Congress of the United States in the 1944 Flood Control Act. The damages and obligations include, but are not limited to, the loss of nearly five hundred thirty thousand acres of land inundated in South Dakota by four Pick-Sloan dams constructed in South Dakota, failure of the federal government to honor its commitment to develop nine hundred seventy-two thousand acres of Pick-Sloan irrigation in South Dakota, a grossly inequitable distribution of Pick-Sloan benefits and costs among the states of the Missouri Basin, significant environmental and bank erosion damages caused by the construction and operation of the Pick-Sloan dams, the loss to South Dakota's economy of more than one billion one hundred million dollars in foregone economic activity because of the removal from production of inundated lands, and the loss of future opportunity for development by the state of the resources of the Missouri River.
Source: SL 1988, ch 369, § 1.
46A-15-6. Settlement framework--Short-term objectives.
South Dakota's Pick-Sloan settlement framework shall consist of short-term objectives enumerated in this section, long-term objectives pursuant to § 46A-15-7, and the Missouri River cost recovery program pursuant to § 46A-15-9. The short-term objectives shall include, at federal expense, the projects and total project costs enumerated in this section, subject to nonfederal cost-sharing requirements established by Congress and agreed to by the Governor or a designated agent of the Governor and the appropriate local project sponsors. The short-term objectives and the estimated 1986 costs, subject to adjustments as needed, to achieve such objectives are as follows:
(1) Completion of the following projects already under construction:
(a) The Belle Fourche Irrigation Rehabilitation Project at forty-two million two hundred thousand dollars remaining total cost;
(b) The WEB Rural Water Development Project at twenty-five million dollars remaining total cost;
(2) Development of the following projects proposed for construction, for which planning has been completed:
(a) The Lake Andes-Wagner/Yankton Sioux (Marty II) Irrigation Project at one hundred sixty-five million dollars total cost;
(b) The Mni Wiconi Rural Water System at one hundred million dollars total cost;
(3) Development of the following projects proposed for construction for which further planning is required:
(a) Multipurpose water supply and irrigation features of the Gregory County Hydroelectric Pumped Storage Facility at one hundred million dollars total cost;
(b) James River Flood Control at twenty million dollars total cost;
(c) The Mid-Dakota Rural Water System at one hundred million dollars total cost;
(d) Missouri River Fish and Wildlife Mitigation at thirty-five million dollars total cost;
(e) Missouri River Streambank Erosion Control at seventy-five million dollars total cost;
(f) Integration into the Pick-Sloan program for Missouri River Riverside Irrigation Projects at five million dollars for federal study purposes, subject to recommendation by the Missouri River Cost Recovery Authority;
(g) Rural and municipal water systems at one hundred million dollars total cost; and
(h) Lewis and Clark Rural Water System at one hundred million dollars total cost.
Source: SL 1988, ch 369, § 2; SL 1990, ch 365; SL 1992, ch 254, § 15; SL 2023, ch 3, § 39.
46A-15-7. Long-term objectives.
The long-term objectives of the Pick-Sloan settlement shall include the future development of irrigation and hydroelectric power projects when conditions are appropriate for such development. Any final settlement of South Dakota's Pick-Sloan claims shall fulfill the long-term objectives as recommended by the Board of Water and Natural Resources in its report to the Governor entitled "South Dakota Missouri River Pick-Sloan Water Initiative", December 1987.
Source: SL 1988, ch 369, § 3; SL 1991, ch 17 (Ex. Ord. 91-4), § 17.
46A-15-8. Authorization of additional future projects not precluded.
Nothing in §§ 46A-15-5 to 46A-15-14, inclusive, is intended, nor may be construed, to preclude the state, any Indian tribes or any other eligible entity from seeking Congressional authorization and appropriation to plan, design, and construct additional projects in the future. Nothing in §§ 46A-15-5 to 46A-15-14, inclusive, prevents the authorization of other projects as units of the Pick-Sloan Missouri Basin Program.
Source: SL 1988, ch 369, § 4.
46A-15-9. Missouri River cost recovery program established as part of settlement--Use of revenue.
There is hereby established as a part of South Dakota's Pick-Sloan settlement the Missouri River cost recovery program to provide revenues to the state using the resources of the Pick-Sloan system. Such revenues shall be deposited in the water and environment fund established pursuant to § 46A-1-60 and shall be used to meet water project cost-sharing requirements and for contemporary and future state and local water projects and resource management activities in South Dakota.
Source: SL 1988, ch 369, § 5; SL 1992, ch 254, § 8.
46A-15-10. Legislative finding as to Missouri River cost recovery program--Authorized as preferred, priority state objective.
The Legislature finds that the following water resources project is necessary for the general welfare of the people of the state and authorizes the project pursuant to § 46A-1-2 to be included in the state water resources management system to serve as a preferred, priority objective of the state: Missouri River cost recovery program.
Source: SL 1988, ch 369, § 6.
46A-15-11. Missouri River cost recovery authority established--Recommendation of options by authority--Limits on recommended options.
There is hereby established the Missouri River cost recovery authority to evaluate, analyze, and recommend options, including, but not limited to, state-financed upgrading of Pick-Sloan hydroelectric power generation facilities, integration into the Pick-Sloan program of Missouri River riverside irrigation projects and state-financed development of hydroelectric pumped storage facilities, such as the Gregory County hydroelectric pumped storage facility, under the Missouri River cost recovery program for providing revenues to the state. However, any option recommended by the authority may not result in increased rates for consumers of existing federal hydropower, may not affect the eligibility under federal law for existing hydropower, and may not impair long-term wholesale power supply contracts.
Source: SL 1988, ch 369, § 7.
46A-15-12. Composition of authority--Chairman--Submission of recommendations--Dissolution.
The Missouri River cost recovery authority shall be composed of nine members: two at-large members appointed by the Governor, two members of the Board of Water and Natural Resources appointed by the Governor, two members of the Legislature appointed by the Governor, one member appointed by the South Dakota Rural Electric Association, one member appointed by the South Dakota Municipal Electric Association, and one member appointed by the investor owned electric companies of South Dakota. The Governor shall appoint the chairman of the authority from among its membership. The authority shall submit its recommendations to the Governor and the Legislature during the 1989 Legislative Session, at which time the authority shall be dissolved, unless otherwise directed by the Legislature.
Source: SL 1988, ch 369, § 8; SL 1991, ch 17 (Ex. Ord. 91-4), § 17.
46A-15-13. Expenses of members--Staff services--Payment of expenses incurred.
No member of the Missouri River cost recovery authority may receive any compensation for services rendered under §§ 46A-15-5 to 46A-15-14, inclusive. Members shall be reimbursed for per diem and necessary expenses incurred in connection with the duties and powers of the Missouri River cost recovery authority. All staff services required by the authority shall be provided by the Department of Agriculture and Natural Resources. All expenses incurred in carrying out the work of the authority, including the per diem and travel expenses of the authority members and staff, shall be paid out of funds appropriated or otherwise made available to the authority.
Source: SL 1988, ch 369, § 9; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-15-14. Governor authorized to negotiate, make agreements, with federal government.
The Governor may enter into negotiations and subsequent agreements with Congress and the federal government for resolution of South Dakota's Pick-Sloan entitlements.
Source: SL 1988, ch 369, § 10.
46A-16-1
South Dakota-Minnesota Boundary Waters Commission--Creation--Composition.
46A-16-2
Repealed.
46A-16-3
Legal advisers to commission.
46A-16-4
Plan for controlling levels of boundary waters.
46A-16-5
Hearings on desirable water level and plan of regulation--Orders.
46A-16-6
Hearings by commission--Time and place--Publication of notice--Final orders of
commission, publication.
46A-16-7
Orders to further purposes of chapter.
46A-16-8
Investigations, surveys and hearings--Procedure for conduct.
46A-16-9
Order of determination of commission regulating water levels--Appeal by aggrieved
party to circuit court--Notice of appeal, service--Appeal from judgment of district
court to Supreme Court.
46A-16-10
Injunction restraining violation of order or notice of commission.
46A-16-11
Expenses not to be incurred without adequate appropriation.
46A-16-12
Construction of artificial controls to maintain boundary water levels.
46A-16-13
Big Stone lake water level--Maintenance, operation, and discharge limitation of Big
Stone control dam.
46A-16-14
Concurrence of Minnesota necessary to make chapter effective.
46A-16-15
Lake protection and rehabilitation projects--Commission powers.
46A-16-16
Local advisory committees for lake projects.
46A-16-1. South Dakota-Minnesota Boundary Waters Commission--Creation--Composition.
There is hereby created an interstate commission to be known as the South Dakota-Minnesota Boundary Waters Commission, which shall consist of the secretaries of the Departments of Agriculture and Natural Resources and Game, Fish and Parks of South Dakota and the commissioner of natural resources and the director of the pollution control agency of Minnesota, or their legal successors, and an engineer appointed by the mutual consent of the Governors of South Dakota and Minnesota for a period of four years.
Source: SL 1939, ch 294, § 1; SDC Supp 1960, § 55.5301; SDCL § 46-29-1; SL 1980, ch 313, § 1; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 2021, ch 1 (Ex. Ord. 21-3), § 53, eff. Apr. 19, 2021.
46A-16-3. Legal advisers to commission.
The attorneys general of both states shall act as legal advisers of the South Dakota-Minnesota Boundary Waters Commission.
Source: SL 1939, ch 294, § 6; SDC Supp 1960, § 55.5306; SDCL, § 46-29-2.
46A-16-4. Plan for controlling levels of boundary waters.
The South Dakota-Minnesota Boundary Waters Commission may investigate and determine the most desirable and beneficial levels of boundary waters artificially controlled and may prescribe a plan for controlling and regulating the water levels.
Source: SL 1939, ch 294, § 2; SDC Supp 1960, § 55.5302 (1); SDCL § 46-29-3; SL 2011, ch 165, § 537.
46A-16-5. Hearings on desirable water level and plan of regulation--Orders.
The South Dakota-Minnesota Boundary Waters Commission may hold hearings and take evidence that is presented, either after complaint or upon its own initiative, as to the desirability of any water level and plan of regulation and may make orders concerning the water level and plan of regulation as in the opinion of the commission are for the best interests of the public.
Source: SL 1939, ch 294, § 2; SDC Supp 1960, § 55.5302 (4); SDCL § 46-29-4; SL 2011, ch 165, § 538.
46A-16-6. Hearings by commission--Time and place--Publication of notice--Final orders of commission, publication.
Said hearings shall be held at such time and place as may be designated by the South Dakota-Minnesota Boundary Waters Commission in either state, in any county affected by the subject matter. At least two weeks' publication notice of said hearings shall be given by publication of the notice in all legal newspapers in each county bordering on the boundary waters which may be affected by the subject matter of said hearings. All final orders of the commission shall be published once each week for two consecutive weeks in a legal newspaper in each county bordering on the boundary waters which may be affected thereby. The printer's affidavit of publication of all notices and orders shall be filed with the commission.
Source: SL 1939, ch 294, § 3; SDC Supp 1960, § 55.5303; SL 1961, ch 278, § 1; SDCL, § 46-29-5.
46A-16-7. Orders to further purposes of chapter.
The South Dakota-Minnesota Boundary Waters Commission may make orders necessary to further the purposes of this chapter.
Source: SL 1939, ch 294, § 2; SDC Supp 1960, § 55.5302 (3); SDCL § 46-29-6; SL 2011, ch 165, § 539.
46A-16-8. Investigations, surveys and hearings--Procedure for conduct.
The South Dakota-Minnesota Boundary Waters Commission may prescribe procedure for the conduct of its investigations, surveys, and hearings.
Source: SL 1939, ch 294, § 2; SDC Supp 1960, § 55.5302 (2); SDCL, § 46-29-7; SL 1993, ch 256, § 87.
46A-16-9. Order of determination of commission regulating water levels--Appeal by aggrieved party to circuit court--Notice of appeal, service--Appeal from judgment of district court to Supreme Court.
Any party aggrieved by any order of determination of the South Dakota-Minnesota Boundary Waters Commission establishing or regulating water levels as above provided for may appeal therefrom to the district court or circuit court as the case may be of any county in either state in which the subject matter of the order of determination is wholly or partially located or to the district court of the county in either state where the capital thereof is located. Notice of appeal must be served upon the commission or any member thereof, within thirty days from the last date of publication of the order appealed from. Appeals may likewise be taken from the judgments of the district court to the Supreme Court of its respective state.
Source: SL 1939, ch 294, § 8; SDC Supp 1960, § 55.5308; SDCL, § 46-29-8.
46A-16-10. Injunction restraining violation of order or notice of commission.
The South Dakota-Minnesota Boundary Waters Commission may, upon verified petition, apply to the district court or circuit court in either state as the case may be, in any county affected by the subject matter, for an injunction restraining the violation of any order or notice made by it pursuant to the provisions of this chapter.
Source: SL 1939, ch 294, § 6; SDC Supp 1960, § 55.5306; SDCL, § 46-29-9; SL 1993, ch 256, § 88.
46A-16-11. Expenses not to be incurred without adequate appropriation.
The South Dakota-Minnesota Boundary Waters Commission may not incur any obligation for expenses except after an adequate legislative appropriation.
Source: SL 1939, ch 294, § 5; SDC Supp 1960, § 55.5305; SDCL § 46-29-10; SL 2011, ch 165, § 540.
46A-16-12. Construction of artificial controls to maintain boundary water levels.
The Game, Fish and Parks Commission may participate with the state of Minnesota in the construction of artificial controls deemed necessary to maintain the most desirable and beneficial levels of boundary waters as determined by the South Dakota-Minnesota Boundary Waters Commission. The Game, Fish and Parks Commission may expend funds for that purpose.
Source: SL 1953, ch 114; SDC Supp 1960, § 55.5309; SDCL § 46-29-11; SL 2011, ch 165, § 541.
46A-16-13. Big Stone lake water level--Maintenance, operation, and discharge limitation of Big Stone control dam.
It is hereby determined that the most desirable and beneficial level for the waters of Big Stone Lake from May first to October first of each year is elevation 967, project datum. The South Dakota-Minnesota Boundary Waters Commission, the South Dakota secretary of game, fish and parks and the Minnesota commissioner of conservation shall maintain and operate the Big Stone Control Dam in conformance herewith. Water discharges from the control dam may not exceed one hundred cubic feet per second unless it is determined to be impracticable to do so by the South Dakota-Minnesota Boundary Commission, the South Dakota secretary of game, fish and parks and the Minnesota commissioner of conservation.
Source: SDC 1939, § 55.5309 as enacted by SL 1961, ch 278, § 2; SDCL, § 46-29-12; SL 1981, ch 325, § 1.
46A-16-14. Concurrence of Minnesota necessary to make chapter effective.
This chapter shall become effective immediately after the passage of an act in substantial conformance herewith by the Legislature of Minnesota.
Source: SL 1939, ch 294, § 7; SDC Supp 1960, § 55.5307; SDCL, § 46-29-13.
46A-16-15. Lake protection and rehabilitation projects--Commission powers.
The South Dakota-Minnesota Boundary Waters Commission may plan, coordinate, hold public hearings on, and propose lake protection and rehabilitation projects for boundary water lakes. The commission may accept and distribute grants from any source for the purposes set forth in this section. The commission shall seek the advice of local units of government and encourage them to voluntarily implement projects proposed by the commission and to enter into agreements with one another for that purpose.
Source: SL 1980, ch 313, § 2; SL 1981, ch 325, § 2; SDCL Supp, § 46-29-14.
46A-16-16. Local advisory committees for lake projects.
The South Dakota-Minnesota Boundary Waters Commission shall establish a local advisory committee for each lake protection and rehabilitation project. The committee shall consist of a majority of locally elected officials of governmental units within the lake watershed including tribal government.
Source: SL 1980, ch 313, § 3; SDCL Supp, § 46-29-15.
46A-17-1
Compact with Wyoming--Ratification and approval--Text of compact.
46A-17-2
Effective date of compact--Notice of ratification.
46A-17-1. Compact with Wyoming--Ratification and approval--Text of compact.
Ratification and approval is hereby given to the Belle Fourche River Compact as signed at the city of Cheyenne in the state of Wyoming on the eighteenth day of February, A. D. 1943, by L. C. Bishop, the state engineer and interstate streams commissioner of the state of Wyoming, and the above-named assistant commissioners, under and in accordance with the authority of the act of the Twenty-sixth Wyoming Legislature approved on the twenty-fourth day of February, 1941, entitled "An Act relating to the appointment of Interstate Streams Commissioner and assistant Commissioners to negotiate agreements relative to interstate streams and providing for the Governor of Wyoming to notify the Governors of other states as to the appointment of said Commissioner, detailing the authority of said Commissioner," which compact was also signed by the duly authorized commissioners of the State of South Dakota and approved by the representative of the United States, which Belle Fourche River Compact is in full as follows:
BELLE FOURCHE RIVER COMPACT
The states of South Dakota and Wyoming, parties signatory to this compact (hereinafter referred to as South Dakota and Wyoming, respectively, or individually as a state, or collectively as the states), have resolved to conclude a compact as authorized under the act of Congress of February 26, 1927, chapter 216, 44 Stat. 1247, and, after negotiations participated in by the following named state commissioners, For South Dakota: M. Q. Sharpe, G. W. Morsman, S. G. Mortimer, W. D. Buchholz. For Wyoming: L. C. Bishop, Samuel McKean, L. H. Robinson, Mrs. E. E. McKean and by Howard R. Stinson, appointed as the representative of the United States of America, have agreed upon the following articles, to wit:
ARTICLE I
A. The major purposes of this compact are to provide for the most efficient use of the waters of the Belle Fourche River Basin (hereinafter referred to as the basin) for multiple purposes; to provide for an equitable division of such waters; to remove all causes, present and future, which might lead to controversies; to promote interstate comity; to recognize that the most efficient utilization of the waters within the basin is required for the full development of the basin; and to promote joint action by the states and the United States in the efficient use of water and the control of floods.
B. The physical and other conditions peculiar to the basin constitute the basis for this compact; and none of the states hereby, nor the Congress of the United States by its consent, concedes that this compact establishes any general principle or precedent with respect to any other interstate stream.
C. Either state and all others using, claiming or in any manner asserting any right to the use of the waters of the Belle Fourche River under the authority of that state, shall be subject to the terms of this compact.
ARTICLE II
As used in this compact:
A. The term, Belle Fourche River, shall mean and include the Belle Fourche River and all its tributaries originating in Wyoming.
B. The term, basin, shall mean that area in South Dakota and Wyoming which is naturally drained by the Belle Fourche River, and all its tributaries.
C. The term, beneficial use, is herein defined to be that use by which the water supply of a drainage basin is depleted when usefully employed by the activities of man, and includes water lost by evaporation, and other natural causes from streams, canals, ditches, irrigated areas, and reservoirs.
D. Where the name of the state or the term, state or states, is used, these shall be construed to include any person or entity of any nature whatsoever using, claiming, or in any manner asserting any right to the use of the waters of the Belle Fourche River under the authority of that state.
ARTICLE III
It shall be the duty of the two states to administer this compact through the official in each state who is now or may hereafter be charged with the duty of administering the public water supplies, and to collect and correlate through such officials the data necessary for the proper administration of the provisions of this compact. Such officials may, by unanimous action, adopt rules and regulations consistent with the provisions of this compact.
The United States geological survey, or whatever federal agency may succeed to the functions and duties of that agency, in so far as this compact is concerned, shall collaborate with the officials of the states charged with the administration of this compact in the execution of the duty of such officials in the collection, correlation, and publication of information necessary for the proper administration of this compact.
ARTICLE IV
Each state shall itself or in conjunction with other responsible agencies cause to be established, maintained, and operated such suitable water gauging stations as it finds necessary to administer this compact.
ARTICLE V
A. Wyoming and South Dakota agree that the unappropriated waters of the Belle Fourche River as of the date of this compact shall be allocated to each state as follows: ninety percent to South Dakota; ten percent to Wyoming; provided, that allocations to Wyoming shall be exclusive of the use of these waters for domestic and stock use, and Wyoming shall be allowed unrestricted use for these purposes, except that no reservoir for such use shall exceed twenty acre-feet in capacity. For storage of its allocated water, Wyoming shall have the privilege of purchasing at cost not to exceed ten percent of the total storage capacity of any reservoir or reservoirs constructed in Wyoming for irrigation of lands in South Dakota, or may construct reservoirs itself for the purpose of utilizing such water. Either state may temporarily divert, or store for beneficial use, any unused part of the above percentages allotted to the other, but no continuing right shall be established thereby.
B. Rights to the use of the waters of the Belle Fourche River, whether based on direct diversion or storage, are hereby recognized as of the date of this compact to the extent these rights are valid under the law of the state in which the use is made, and shall remain unimpaired hereby. These rights, together with the additional allocations made under A of this article, are agreed to be an equitable apportionment between the states of the waters of the basin.
C. The waters allocated under A of this article and the rights recognized under B of this article are hereinafter referred to collectively as the apportioned water. For the purposes of the administration of this compact and determining the apportioned water at any given date within a given calendar year, there shall be taken the sum of:
(1) The quantity of water in acre-feet that passed the Wyoming-South Dakota state line during the period from January first of that year to that given date.
(2) The quantity of water in acre-feet in storage on that date in all reservoirs built in Wyoming on the Belle Fourche River subsequent to the date of this compact.
ARTICLE VI
Any person, entity, or state shall have the right to acquire necessary property rights in another state by purchase or through the exercise of the power of eminent domain for the construction, operation and maintenance of storage reservoirs and of appurtenant works, canals, and conduits required for the enjoyment of the privileges granted by article V and article VII A; provided, however, that the grantees of such rights shall pay to the political subdivisions of the state in which such works are located, each and every year during which such rights are enjoyed for such purposes, a sum of money equivalent to the average annual amount of taxes assessed against the lands and improvements thereon during the ten years preceding the use of such lands in reimbursement for the loss of taxes to said political subdivisions of the state.
ARTICLE VII
A. Either state shall have the right, by compliance with the laws of the other state, to file applications for and receive permits to construct or participate in the construction and use of any dam, storage reservoir, or diversion works in such state for the purpose of conserving and regulating the apportioned water of the other state; provided, that such right is subject to the rights of the other state to control, regulate, and use water apportioned to it.
B. Each claim hereafter initiated for storage or diversion of water in one state for use in another state shall be filed in the office of the state engineer of the state in which the water is to be stored or diverted, and a duplicate copy of the application including a map showing the character and location of the proposed facilities and the lands to be irrigated shall be filed in the office of the state engineer of the state in which the water is to be used. If a portion or all the lands proposed to be reclaimed are located in a state other than the one in which the water is to be stored or diverted, then, before approval of the application shall be granted, said application shall be checked against the records of the appropriate office of the state in which the water is to be used, and a notation shall be placed thereon by the officer in charge of such records to the effect that the land description does not indicate a conflict with existing water rights. All endorsements shall be placed on both the original and duplicate copies of all such maps filed to the end that the records in both states may be complete and identical.
C. Appropriations may hereafter be adjudicated in the state in which the water is stored or diverted, and where a portion or all of the lands irrigated are in the other state, such adjudications shall be confirmed in the latter state by the proper authority. Each adjudication is to conform with the laws of the state where the water is stored or diverted and shall be recorded in the county and state where the water is used.
ARTICLE VIII
In case any reservoir is constructed in Wyoming, to be used principally for irrigation of lands in South Dakota, sufficient water not to exceed ten cubic feet per second shall be released at all times for stock water use.
ARTICLE IX
No reservoir hereafter built solely to utilize the water allocated to Wyoming shall have a capacity in excess of one thousand acre-feet.
ARTICLE X
The provisions of this compact shall remain in full force and effect until amended by action of the Legislature of the states and consented to and approved by the Congress of the United States in the same manner as this compact is required to be ratified to become effective.
ARTICLE XI
This compact may be terminated at any time by unanimous consent of the states, and upon such termination, all rights then established hereunder or recognized hereby shall continue to be recognized as valid by the states notwithstanding the termination of the other provisions of the compact.
ARTICLE XII
Nothing in this compact shall be construed to limit or prevent either state from instituting or maintaining any action or proceeding, legal or equitable, in any federal court or the United States Supreme Court for the protection of any right under this compact or the enforcement of any of its provisions.
ARTICLE XIII
Nothing in this compact shall be deemed:
A. To impair or affect any rights or powers of the United States, its agencies, or instrumentalities, in and to the use of the waters of the Belle Fourche River nor its capacity to acquire rights in and to the use of said waters;
B. To subject any property of the United States, its agencies, or instrumentalities to taxation by either state or subdivision thereof, nor to create an obligation on the part of the United States, its agencies, or instrumentalities, by reason of the acquisition, construction or operation of any property or works of whatsoever kind, to make any payments to any state or political subdivision thereof, state agency, municipality, or entity whatsoever in reimbursement for the loss of taxes;
C. To subject any property of the United States, its agencies, or instrumentalities, to the laws of any state to an extent other than the extent to which these laws would apply without regard to the compact.
ARTICLE XIV
This compact shall become operative when approved by the Legislature of each of the states, and when consented to by the Congress of the United States by legislation providing, among other things, that:
A. Any beneficial uses hereafter made by the United States, or those acting by or under its authority, within a state, of the waters allocated by this compact, shall be within the allocations hereinabove made for the use into that state and shall be taken in account in determining the extent of use within that state.
B. The United States, or those acting by or under its authority, in the exercise of rights or powers arising from whatever jurisdiction the United States has in, over and to the waters of the Belle Fourche River and all its tributaries, shall recognize, to the extent consistent with the best utilization of the waters for multiple purposes, that beneficial use of the waters within the basins is of paramount importance to development of the basin, and no exercise of such power or right thereby that would interfere with the full beneficial use of the waters shall be made except upon a determination, giving due consideration to the objectives of this compact and after consultation with all interested federal agencies and the state officials charged with the administration of this compact, that such exercise is in the best interest of the best utilization of such waters for multiple purposes.
C. The United States, or those acting by or under its authority, will recognize any established use, for domestic and irrigation purposes, of the apportioned waters which may be impaired by the exercise of federal jurisdiction in, over, and to such waters; provided, that such use is being exercised beneficially, is valid under the laws of the appropriate state and in conformity with this compact at the time of the impairment thereof, and was validly initiated under state law prior to the initiation or authorization of the federal program or project which causes such impairment.
ARTICLE XV
Should a court of competent jurisdiction hold any part of this compact to be contrary to the Constitution of any state or of the United States, all other severable provisions shall continue in full force and effect.
In Witness Whereof the commissioners have signed this compact in triplicate original, one of which shall be filed in the archives of the department of state of the United States of America and shall be deemed the authoritative original, and of which a duly certified copy shall be forwarded to the Governor of each of the states.
Done at the city of Cheyenne in the state of Wyoming, this eighteenth day of February, in the year of Our Lord, One Thousand Nine Hundred and Forty-three.
Commissioners for South Dakota Commissioners for Wyoming
M. Q. SHARPE L. C. BISHOP
G. W. MORSMAN SAMUEL MCKEAN
S. G. MORTIMER L. H. ROBINSON
W. D. BUCHHOLZ MRS. E. E. MCKEAN
I have participated in the negotiation of this compact and intend to report favorably thereon to the Congress of the United States. HOWARD R. STINSON, Representative of the United States of America.
Source: SL 1943, ch 283, § 1; SDC Supp 1960, § 55.5101; SDCL, § 46-30-1.
46A-17-2. Effective date of compact--Notice of ratification.
Said compact shall not be binding or obligatory upon any of the high contracting parties thereto unless and until the same shall have been ratified by the Legislature of each of the said states and approved by the Congress of the United States. The Governor of South Dakota shall give notice of the ratification and approval of said compact by the South Dakota Legislature to the Governors of each of the said states and to the President of the United States.
Source: SL 1943, ch 283, § 2; SDC Supp 1960, § 55.5102; SDCL, § 46-30-2.
CHAPTER 46A-18
WATER PROJECT DISTRICTS
46A-18-1 Legislative findings and policy.
46A-18-2 Petition to submit to an election the establishment of water project district.
46A-18-2.1 Voting restricted to qualified voters.
46A-18-2.2 Conditions for specifying qualified voter of district or director division is owner of real property located within district or director division.
46A-18-3 46A-18-3. Repealed by SL 1990, ch 366, § 2.
46A-18-4 Petition--Contents.
46A-18-5 46A-18-5. Repealed by SL 1998, ch 36, § 73.
46A-18-6 Lands includable in district.
46A-18-7 Organization of district within or partly within boundaries of another district.
46A-18-8 Directors to be elected at large or from divisions--Establishment of division boundaries.
46A-18-9 Election of directors--Procedure--Terms.
46A-18-10 Signatures required on petition--Number.
46A-18-11 46A-18-11. Repealed by SL 1998, ch 36, § 75.
46A-18-12 Petition--Maps and documents to accompany filing.
46A-18-13 Petition examined by board--Investigation--Payment of estimated costs--Representation of petition.
46A-18-14 Findings by board--Dismissal or approval of petition--Election date after approval.
46A-18-15 Notice of petition and election--Publication--Contents.
46A-18-16 46A-18-16 to 46A-18-19. Repealed by SL 1998, ch 36, §§ 78 to 81.
46A-18-20 Establishment of district--Vote required.
46A-18-20.1 Payment of election costs.
46A-18-21 Initial district directors.
46A-18-22 Organization of directors--Chairman--Secretary-treasurer.
46A-18-23 Annual district meeting--Election of directors.
46A-18-24 Notice of annual meeting and election.
46A-18-25 Nominating petitions for directors.
46A-18-26 Director vacancies--Filling.
46A-18-27 Boundary adjustments.
46A-18-28 Annexation or withdrawal of areas.
46A-18-29 Combining districts.
46A-18-30 Combining districts--Certification of creation.
46A-18-31 Corporate powers vested in directors.
46A-18-32 Powers of district.
46A-18-33 Oath of directors.
46A-18-34 Employment of personnel--Bonds.
46A-18-35 Indemnification of officers, employees, and agents.
46A-18-36 Compensation and reimbursement of expenses--Directors--Vouchers.
46A-18-37 Duties of directors.
46A-18-38 Powers of directors.
46A-18-39 District control over water rights.
46A-18-40 Plan for improvements--Contents.
46A-18-41 Priority of projects--Reports by engineer on each project--Contents.
46A-18-42 Examination, hearing, and resolution on project--Financing.
46A-18-43 Financing determined in resolution.
46A-18-44 Publication of resolution--Notice of hearing--Apportionment of benefits.
46A-18-45 Election to approve financing--Vote required.
46A-18-46 Limitation of general tax levies and special assessments.
46A-18-47 Eligibility to vote on tax levies and assessments.
46A-18-48 Municipality contracting for payments to district--Election required.
46A-18-49 Tax levy or assessment resolution--Filing--Collection.
46A-18-50 Assessed valuation.
46A-18-51 Delivery of tax collections to district.
46A-18-52 Review of tax levies.
46A-18-53 Warrants issued in anticipation of tax or special assessment collections.
46A-18-54 46A-18-54. Repealed by SL 1990, ch 366, § 15.
46A-18-55 Special election on additional taxes or special assessments--Eligibility to vote.
46A-18-56 Operation and maintenance of completed projects--Budget.
46A-18-57 Reserve fund for extraordinary maintenance or operation.
46A-18-57.1 Reserve fund for project development and construction.
46A-18-58 46A-18-58. Repealed by SL 1995, ch 253, § 20.
46A-18-59 Levies for operation and maintenance.
46A-18-60 Certification of taxes and assessments--Collection--Deposit and disbursement of proceeds.
46A-18-61 Acceptance of grants and gifts.
46A-18-62 County contributions to districts.
46A-18-63 Acquisition of real property and easements--Condemnation.
46A-18-64 Contracts and arrangements by district authorized.
46A-18-65 Contracts to furnish water--Other contracts.
46A-18-66 Pledge of security for obligations--Revenue.
46A-18-67 Depository for district funds.
46A-18-68 Claims against district--Payment by warrant or order--Registration.
46A-18-69 Services provided without charge to district.
46A-18-70 46A-18-70, 46A-18-71. Repealed by SL 1995, ch 253, §§ 22, 23.
46A-18-71.1 Repealed.
46A-18-72 Investigation of district operations--Hearing--Order for correction.
46A-18-73 Municipalities' powers as to waterworks unaffected.
46A-18-74 Petition for dissolution of district--Election--Notice--Ballots.
46A-18-75 Vote required for dissolution--Winding-up procedure.
46A-18-76 Resolution dissolving district--Filing.
46A-18-77 Satisfaction of obligations outstanding after dissolution.
46A-18-1. Legislative findings and policy.
Conservation, management, and development of the state's water resources are vital to the public interest, welfare, convenience, and necessity and require, in some circumstances, the creation of water project districts for the purposes of sponsoring and implementing water projects for the conservation, storage, distribution, and utilization of water and for the prudent management of water resources.
Source: SL 1984, ch 293, § 1; SL 1990, ch 366, § 1.
46A-18-2. Petition to submit to an election the establishment of water project district.
Persons desiring to establish an area as a water project district may petition the Board of Water and Natural Resources to submit to an election the question of whether such area shall become a water project district.
Source: SL 1984, ch 293, § 2.
46A-18-2.1. Voting restricted to qualified voters.
Except as provided in § 46A-18-2.2, and except as otherwise provided in this chapter, no person may vote in any election held pursuant to this chapter unless the person is a qualified voter of the water project district. A qualified voter of the district is a person who is a registered voter and a resident of the district. If the election is conducted based on director divisions, no person may vote in the election unless the person is a qualified voter of the person's respective director division. A qualified voter of a director division is a person who is a registered voter and a resident of the director division.
Source: SL 2007, ch 257, § 1; SL 2011, ch 35, § 3.
46A-18-2.2. Conditions for specifying qualified voter of district or director division is owner of real property located within district or director division.
If fewer than one hundred fifty persons reside within the boundaries of an existing water project district on July 1, 2011, the board of directors of the district may, by a resolution adopted not later than July 1, 2014, specify that a qualified voter of the district or director division is an owner of real property located within the district or director division, rather than a registered voter and resident of the district or director division.
For purposes of this section, the term, owner of real property, includes any person listed as the owner of real property in the records in the office of the register of deeds of the county in which the property is located. If real property is sold under a contract for deed that is of record in the office of the register of deeds, the purchaser of the real property, as named in the contract for deed, is treated as the owner. A landowner or joint landowners who own a tract of land within the district are entitled to one vote collectively. The vote of any person who is a minor or a protected person as defined by § 29A-5-102, may be cast by the parent, conservator, or legal representative of the minor or protected person.
Source: SL 2011, ch 35, § 4.
46A-18-4. Petition--Contents.
The petition established pursuant to § 46A-18-2 shall contain:
(1) The name of the proposed district;
(2) The object and purpose of the water project and works proposed to be constructed or acquired, together with a general description of the nature, location, and method of operation of the proposed works or program of activities;
(3) A legal description of the lands constituting the proposed district and the name of any municipality included partly or wholly within the boundaries of the proposed district;
(4) The location of the principal place of business of the proposed district; and
(5) The number of members of the board of directors of the proposed district, which number may not be fewer than three nor more than seven, and a statement as to whether the directors are to be elected at large or are to be elected by director divisions. Each director shall be a qualified voter of the district and, if director divisions are provided for, shall be a qualified voter of the respective division the director is to represent.
Source: SL 1984, ch 293, § 3; SL 1992, ch 60, § 2; SL 1998, ch 36, § 72; SL 2000, ch 32, § 8.
46A-18-6. Lands includable in district.
The lands proposed to be included within a district need not consist of contiguous parcels. A district may consist of lands wholly within or wholly outside the limits of municipalities, or of lands partly within and partly outside such limits and a district may include all or part of the area within one or more such municipalities.
Source: SL 1984, ch 293, § 5; SL 1992, ch 60, § 2.
46A-18-7. Organization of district within or partly within boundaries of another district.
Nothing in this chapter prevents the organization of a district within, or partly within, the territorial boundaries of another district organized hereunder or of another district organized under the provisions of Title 46A, so long as the Board of Water and Natural Resources certifies that the works, the operations of the works, the exercise of powers, and the assumptions of duties and responsibilities on the part of such district will not nullify or unreasonably conflict with those on the part of the other district.
Source: SL 1984, ch 293, § 6.
46A-18-8. Directors to be elected at large or from divisions--Establishment of division boundaries.
Directors of the proposed district may be elected either at large or from director divisions, without regard to whether municipality areas are included within the district. If the petition states that the directors shall be elected from director divisions, the petition shall describe the boundaries of the divisions, which boundaries may be drawn either with or without regard to the corporate limits of any municipality included partly or wholly within the district boundaries. The director division boundaries shall be drawn so as to provide equitable representation for the qualified voters of the district.
Source: SL 1984, ch 293, § 7; SL 1992, ch 60, § 2.
46A-18-9. Election of directors--Procedure--Terms.
In the petition, whether the directors are to be elected at large or by division, the directors named shall be divided into three groups, to be designated Group 1, Group 2, and Group 3, respectively. The members of Group 1 shall hold office until their successors, elected at the first regular district election thereafter, shall be qualified. The members of Group 2 shall hold office until their successors, elected at the second regular district election thereafter, shall be qualified. The members of Group 3 shall hold office until their successors, elected at the third regular district election thereafter, shall be qualified. Thereafter, all directors elected shall serve for a term of three years and until their successors are elected and qualified. After the name of each director shall be stated which of the three groups he belongs to.
Source: SL 1984, ch 293, § 8.
46A-18-10. Signatures required on petition--Number.
The formation petition shall be signed by the number of signers required by § 6-16-2.
Source: SL 1984, ch 293, § 9; SL 1990, ch 366, § 4; SL 1998, ch 36, § 74.
46A-18-12. Petition--Maps and documents to accompany filing.
A petition, if filed with the Board of Water and Natural Resources, shall be accompanied by maps showing the location of lands within the proposed district land and by such other maps, plans, and estimates as may be necessary to describe fully the operation and effects of the proposed project.
Source: SL 1984, ch 293, § 11.
46A-18-13. Petition examined by board--Investigation--Payment of estimated costs--Representation of petition.
The Board of Water and Natural Resources shall examine the petition, and if it determines that the petitioners have complied with the requirements of this chapter, the board may make an immediate investigation of the proposed district and of its proposed works, systems, or plans and of the engineering and economic feasibility of the project. The board may make an estimate of the cost of the investigation and may require the petitioners to defray part or all of the estimated cost before proceeding with the investigation. If the petition is dismissed by the board, the petitioners may present a new petition covering the same matter or the same petition with additional signatures if additional signatures are necessary.
Source: SL 1984, ch 293, § 12; SL 1995, ch 253, § 14.
46A-18-14. Findings by board--Dismissal or approval of petition--Election date after approval.
The Board of Water and Natural Resources, within ninety days from the receipt of a petition, or within ninety days from the time funds become available to defray the cost of an investigation, shall determine whether the proposed project is feasible and conforms to public convenience and welfare. If the project is deemed not feasible or not conforming to public convenience and welfare, the board shall dismiss the petition. If the board determines that the project is feasible and conforms to public convenience and welfare, the board shall by resolution approve the petition and call an election of the qualified voters of the proposed water project district on the question of whether the proposed district should be established. The election shall be held as provided in §§ 6-16-4 to 6-16-6, inclusive.
Source: SL 1984, ch 293, § 13; SL 1998, ch 36, § 76; SL 2007, ch 257, § 2.
46A-18-15. Notice of petition and election--Publication--Contents.
The Board of Water and Natural Resources shall perform the duties of the county auditor as provided in §§ 6-16-4 to 6-16-6, inclusive.
Source: SL 1984, ch 293, § 14; SL 1998, ch 36, § 77.
46A-18-20. Establishment of district--Vote required.
If at least sixty percent of the votes cast in an election are in favor of formation of the water project district, the Board of Water and Natural Resources shall by resolution create and establish the water project district and give it a corporate name. Upon filing of a true copy of the resolution with the secretary of state, the district shall become a political subdivision of the state with the authority, power, and duties prescribed by this chapter.
Source: SL 1984, ch 293, § 19.
46A-18-20.1. Payment of election costs.
If at least sixty percent of the votes cast in the initial election are in favor of the formation of the water project district, the costs of the election shall be paid by the new water project district. If less than sixty percent of the votes cast in the initial election are in favor of the formation of the water project district, the counties having land in the proposed district shall pay the costs of the election in proportion to each county's share of the equalized assessed valuation of the land within the proposed district.
Source: SL 1985, ch 366.
46A-18-21. Initial district directors.
The initial district directors shall assume the duties of office and serve until successors are duly elected and qualified.
Source: SL 1984, ch 293, § 20; SL 2000, ch 32, § 9.
46A-18-22. Organization of directors--Chairman--Secretary-treasurer.
The directors shall organize by electing one of their members chairman and one vice-chairman and by appointing a secretary-treasurer, who is not a member of the board and whose compensation and bond shall be set by the directors. The directors shall provide the necessary books, records, furniture, and equipment for the conduct and transaction of official business.
Source: SL 1984, ch 293, § 21.
46A-18-23. Annual district meeting--Election of directors.
Before May first of each year, on a date established by the directors, an annual meeting of the district shall be held during which the qualified voters of the district shall elect, by ballot, under the direction of the secretary of the district, directors to replace those whose terms have expired. Newly elected directors shall assume office at the time of their election.
Source: SL 1984, ch 293, § 22; SL 2002, ch 144, § 7; SL 2007, ch 257, § 3.
46A-18-24. Notice of annual meeting and election.
The water project district directors shall publish a notice once each week for three consecutive weeks immediately prior to the annual election and meeting stating the time, place, and purpose of the election and meeting, the names of the director candidates and the director division that each candidate is to represent in a legal newspaper of general circulation in each county that has land situated within the district. The notice shall also include information on any project reserve fund established by the district, as provided in § 46A-18-57.1.
Source: SL 1984, ch 293, § 23; SL 1990, ch 366, § 6.
46A-18-25. Nominating petitions for directors.
Nominations of director candidates to be elected at the annual election shall be by nominating petition signed by at least twenty-five qualified voters or ten percent of the qualified voters, whichever is less, in the district, if the directors are elected at large, or signed by at least ten qualified voters or ten percent of the qualified voters, whichever is less, in the director division if the directors are elected by division. The petitions shall be in a form prescribed by the State Board of Elections and shall be filed with the secretary of the district at least thirty days prior to the election.
Source: SL 1984, ch 293, § 24; SL 1990, ch 366, § 7.
46A-18-26. Director vacancies--Filling.
Any vacancy in an unexpired term shall be filled by appointment within thirty days of the vacancy by the remaining directors of the district. Any vacancy in an expired term for which no candidate's nominating petition has been filed pursuant to § 46A-18-25 shall be filled by appointment within thirty days of the election by the remaining directors. An appointed director shall hold office for the remainder of the term for which he has been appointed.
Source: SL 1984, ch 293, § 25; SL 1990, ch 366, § 8.
46A-18-27. Boundary adjustments.
After the creation of a water project district, minor adjustments to the boundaries of the district may be made by the directors, without referendum. Such adjustments may not delete lands from the district that have been subject to a special assessment during the budget year or the current year and such adjustments may not include additional land in the district without the written approval of the owner of the land.
Source: SL 1984, ch 293, § 26.
46A-18-28. Annexation or withdrawal of areas.
An additional area may be annexed or an area withdrawn from a water project district by:
(1) Circulation of an initiating petition therefor by the qualified voters in the new area and in the existing district, similar to an initiating petition specified in § 46A-18-2; or
(2) Circulation of an initiating petition by the qualified voters in the affected area and passage of a resolution therefor by the directors of the water project district.
Upon receipt of an initiating petition and passage of a resolution by the directors, the Board of Water and Natural Resources shall annex or withdraw the area in the same manner as prescribed for creation of a new water project district.
Source: SL 1984, ch 293, § 27.
46A-18-29. Combining districts.
Two or more water project districts may be combined into a single district by:
(1) Circulation of an initiating petition therefor, similar to the initiating petition specified in this chapter; or
(2) Passage of resolutions by the directors stating the desire to combine the water project districts and containing the same information as prescribed for an initiating petition.
Upon receipt of an initiating petition or passage of a resolution by the directors, the Board of Water and Natural Resources shall combine water project districts in the same manner as prescribed for creation of a new water project district.
Source: SL 1984, ch 293, § 28.
46A-18-30. Combining districts--Certification of creation.
After proceedings are completed to combine water project districts, the Board of Water and Natural Resources shall certify to the secretary of state of the creation of the combined water project district.
Source: SL 1984, ch 293, § 29; SL 1990, ch 366, § 9; SL 1991, ch 17 (Ex. Ord. 91-4), § 17.
46A-18-31. Corporate powers vested in directors.
The corporate powers of the water project district shall be vested in and exercised by the board of directors of the district.
Source: SL 1984, ch 293, § 30.
46A-18-32. Powers of district.
A water project district shall have perpetual existence, unless dissolved, with the following powers:
(1) To sue and be sued;
(2) To incur debts, liabilities, and obligations;
(3) To exercise the power of eminent domain only as necessary to carry out its purposes and duties as provided in this chapter;
(4) To levy taxes not to exceed one dollar per thousand dollars of taxable valuation on each dollar of taxable property in the district;
(5) To levy special assessments, as limited by this chapter and in proportion to the benefits to be received, on taxable property that benefits by a water project or other program;
(6) To borrow money and to issue certificates, warrants, general obligation bonds, special assessment bonds, and revenue bonds pursuant to this chapter. The district may continue to levy taxes and assessments within an area that has been withdrawn from the district as is necessary to pay the area's share of the district's obligations existing at the time of the withdrawal. No lands may be annexed to the district unless the owners or lessees of the lands pay or obligate the lands to pay the same rate for benefits provided by the district as all other lands within the district have originally paid or have been obligated to pay to cover costs of construction and project studies;
(7) To enter into contracts to furnish water and other services; and
(8) To do and perform all acts herein authorized and all other acts necessary and proper for carrying out and exercising the powers vested in the district.
Source: SL 1984, ch 293, § 31.
46A-18-33. Oath of directors.
Within thirty days of assuming office, the directors shall meet at the designated principal place of business of the district and shall take the oath as defined in the Constitution of South Dakota.
Source: SL 1984, ch 293, § 32; SL 1995, ch 253, § 15.
46A-18-34. Employment of personnel--Bonds.
The directors may contract for the services of or employ a manager, an engineer, professional assistants, and such other employees as are necessary and provide for their qualification, duties, and compensation, which, with all other expenses, shall be included as a part of cost of any project. The directors may require any officer or employee of the district to hold a bond for faithful performance of his duties, in a prescribed amount, the cost thereof to be paid from funds of the district.
Source: SL 1984, ch 293, § 33.
46A-18-35. Indemnification of officers, employees, and agents.
A water project district may indemnify any person made a party or threatened to be made a party to any action, whether civil, criminal, administrative, or investigative in his capacity as director, officer, employee, or agent of the district or by serving at the request of the district in another enterprise. The indemnity may include reasonable expenses paid in settlement and incurred by him in connection with the action if he has acted in good faith, believed his actions to be in the best interests of the water project district or had no reasonable cause to believe his conduct unlawful. However, this section does not apply to any action by the water project district.
Source: SL 1984, ch 293, § 34.
46A-18-36. Compensation and reimbursement of expenses--Directors--Vouchers.
The board of directors of a water project district shall establish amounts to reimburse each district director for expenses for lodging, meals, and mileage, and to provide compensation for each day of actual service for traveling to, attending, and returning from a meeting, hearing, or any other official activity required of the water project district board. Any reimbursement or compensation authorized by this section must be paid on vouchers verified and approved according to procedures determined by the board.
Source: SL 1984, ch 293, § 35; SL 2023, ch 153, § 1.
46A-18-37. Duties of directors.
The district board of directors shall:
(1) Adopt a seal;
(2) Keep a record of all proceedings, minutes, certificates, contracts, bonds, and employees' records and other business transacted by the directors;
(3) Adopt bylaws, procedures, and requirements consistent with this chapter;
(4) Meet annually and at such other times as may be necessary. A meeting may be called at any time by the chairman or at the request of any director through the chairman. If so requested, the secretary of the district shall mail a notice of such meeting to each member at least ten days prior to the meeting.
Source: SL 1984, ch 293, § 36; SL 1993, ch 256, § 90.
46A-18-38. Powers of directors.
The district board of directors may:
(1) Make surveys or utilize other surveys and data to plan and develop water projects;
(2) Cooperate or contract with any person, state, or subdivision thereof, federal agency or private or public corporation as necessary;
(3) Construct, clean, repair, alter, abandon, consolidate, reclaim, or change any watercourse, natural or artificial, within the district in cooperation with other state or federal public bodies having jurisdiction;
(4) Acquire, lease, operate, construct, and maintain dams, dikes, reservoirs, or other works as necessary;
(5) Acquire by gift, lease, purchase, or eminent domain any real and personal property as necessary;
(6) Sell, lease, or otherwise dispose of unneeded district property;
(7) Contract for purchase of insurance;
(8) Establish and maintain devices for acquiring and recording hydrological data;
(9) Enter into contracts for construction authorized by this chapter; and
(10) Acquire property and construct works outside the boundaries of the district.
Source: SL 1984, ch 293, § 37.
46A-18-39. District control over water rights.
No water project district may have jurisdictional authority or control over water rights.
Source: SL 1984, ch 293, § 38.
46A-18-40. Plan for improvements--Contents.
The district directors, within a reasonable length of time after qualifying, shall adopt an overall plan for improvements within the district. This plan shall be designated the general improvement plan for the water project district. The general improvement plan shall consist of a map showing the area to be benefited, the location of the proposed works of improvement and the location of buildings, roads, streams, and other topographic features necessary to show the relation of the proposed works of improvement to the area of the district and a narrative stating the estimated benefits and the proposed method of financing and accomplishing the project. The district directors may amend a previously adopted general improvement plan.
Source: SL 1984, ch 293, § 39; SL 1990, ch 366, § 10; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1995, ch 253, § 16.
46A-18-41. Priority of projects--Reports by engineer on each project--Contents.
Upon adoption of a general improvement plan or amendment, the district directors shall set the order in which specific projects in the plan shall be undertaken and shall obtain accurate surveys of the projects by a competent engineer. The engineer shall make written reports showing the amount, character, and kind of work to be done and the location and estimated cost of the work.
Source: SL 1984, ch 293, § 40; SL 1990, ch 366, § 11; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1995, ch 253, § 17.
46A-18-42. Examination, hearing, and resolution on project--Financing.
After approval by the board, the directors shall examine the plans, hold hearings on the proposals, and by resolution state that the proposed work, or any part thereof, should be accomplished. The resolution shall state whether the cost shall be paid by a general tax levy against all taxable real property located within the district, by a special assessment against real property within the district that will specially benefit by the project or by both a general tax levy and a special assessment with the portion to be paid by each.
Source: SL 1984, ch 293, § 41; SL 1990, ch 366, § 12.
46A-18-43. Financing determined in resolution.
The directors shall determine in the resolution whether to issue bonds of the district or other authorized financing to provide for payment of the cost of the project by installments.
Source: SL 1984, ch 293, § 42.
46A-18-44. Publication of resolution--Notice of hearing--Apportionment of benefits.
The resolution, upon being adopted, shall be published once a week for three successive weeks in a legal newspaper of general circulation in each county in which land of the district is located. The publication shall state the time and place the directors shall meet for hearing all parties interested in the apportionment of benefits by reason of the improvement and the time and place such parties may appear or file written objections thereto. The directors shall hear and consider the testimony and make the apportionments just, according to benefits received from the improvement, accounting for work already accomplished.
Source: SL 1984, ch 293, § 43.
46A-18-45. Election to approve financing--Vote required.
No bonds may be issued and no financial commitments requiring the obligation of district taxes or assessments beyond the current fiscal year may be entered into, unless the directors have initiated hearings on the works proposed for construction and the benefits to accrue therefrom and have conducted an election in accordance with this chapter. A sixty percent favorable vote shall grant approval of a bond issue or other permissible financing arrangement.
Source: SL 1984, ch 293, § 44.
46A-18-46. Limitation of general tax levies and special assessments.
No annual general tax levy, whether for annual district operation and maintenance expense or for payment of long term obligations, may exceed one dollar per thousand dollars of taxable valuation. No limitation applies to special assessments, except that special assessments may not be used to pay an obligation beyond the current business year of the district unless approved by an election of the affected landowners as provided in §§ 46A-18-45 and 46A-18-47.
Source: SL 1984, ch 293, § 45; SL 2007, ch 257, § 4.
46A-18-47. Eligibility to vote on tax levies and assessments.
In the election provided in § 46A-18-45, all qualified voters of the district are eligible to vote. However, if special assessments are proposed, only those qualified voters of the district who are also landowners subject to the proposed assessments may vote. If the financing proposal provides for both general tax levies and special assessments, the votes applicable to the general tax and the votes applicable to the special assessments shall be counted separately and accepted separately for purposes of determining the outcome of the election.
Source: SL 1984, ch 293, § 46; SL 2002, ch 144, § 8; SL 2007, ch 257, § 5.
46A-18-48. Municipality contracting for payments to district--Election required.
In lieu of tax levies or special assessments in municipalities, the district directors and the governing bodies of municipalities may enter into contracts for annual payments by the first or second municipality to the district. The governing bodies shall obligate amounts sufficient to cover annual payments to the district in the annual budgets of such municipalities. If contractual commitments between a district and a municipality are to meet, in part, obligations imposed by contract or other agreement between the district and an agency of the United States or the state, such commitments on behalf of a municipality shall be a continuing annual obligation during the life of the contract between the district and the United States in the same manner as though the municipality had entered into the contract or agreement with the United States under the provisions of § 9-36-15 or 9-43-137. In no case may the governing board of a municipality execute a contract or agreement with the district until a favorable vote by the electorate of the municipality has been obtained for payment by the municipality under provisions of § 9-42-2.
Source: SL 1984, ch 293, § 47; SL 1992, ch 60, § 2.
46A-18-49. Tax levy or assessment resolution--Filing--Collection.
The directors, having completed an apportionment of benefits, shall prepare and by resolution approve a tax levy or assessment against real property within the district, or outside of the corporate limits of municipalities if a contract or contracts as provided in § 46A-18-48 are used, and shall annually file a detailed report with the appropriate county auditor by August first. The county auditor shall apply the district levy to the county tax rolls and collect the district levy in the same manner as other county taxes.
Source: SL 1984, ch 293, § 48; SL 1990, ch 366, § 13.
46A-18-50. Assessed valuation.
The assessed valuation for district tax purposes shall be the same assessed valuation that is used for general county levies.
Source: SL 1984, ch 293, § 49.
46A-18-51. Delivery of tax collections to district.
After collection, county officials shall monthly deliver taxes collected on behalf of the district to the district secretary-treasurer.
Source: SL 1984, ch 293, § 50; SL 1987, ch 332, § 4.
46A-18-52. Review of tax levies.
Any party claiming to be aggrieved by the apportionment of the benefits or taxes or assessments may appeal in accordance with procedures established by state law for review of tax levies.
Source: SL 1984, ch 293, § 51.
46A-18-53. Warrants issued in anticipation of tax or special assessment collections.
Following a favorable vote as provided in § 46A-18-45 and in anticipation of tax or special assessment collections, the directors may issue no-fund warrants to pay district obligations. However, the outstanding amounts of such no-fund warrants may not exceed the product of one dollar per thousand dollars of taxable valuation times the assessed valuation of the taxable real property within the district.
Source: SL 1984, ch 293, § 52; SL 1990, ch 366, § 14.
46A-18-55. Special election on additional taxes or special assessments--Eligibility to vote.
The directors may at any time call a special election to determine whether additional taxes or special assessments may be levied for the purpose of raising money for increased costs of district business or for a supplemental plan of improvements over and above the initial plan of improvements. Eligibility to vote in the special election is determined in accordance with the provisions of § 46A-18-47.
Source: SL 1984, ch 293, § 54; SL 1995, ch 253, § 18; SL 2007, ch 257, § 6.
46A-18-56. Operation and maintenance of completed projects--Budget.
The directors shall provide for adequate annual maintenance of the district's project works once constructed. They shall adopt an overall project schedule of routine operation and maintenance. They shall prepare annual operation and maintenance budgets for each calendar year in which is stated the operation and maintenance work to be done during the budget year and the estimated cost.
Source: SL 1984, ch 293, § 55.
46A-18-57. Reserve fund for extraordinary maintenance or operation.
The annual operation and maintenance budget shall include provisions for accumulation of a reserve fund for extraordinary maintenance or operation. The amount budgeted each year for the reserve fund shall be at least ten percent of the estimated cost of the annual routine operation and maintenance. Annual increments for the reserve fund shall be budgeted whenever the balance in the accumulated reserve fund is less than the current annual operation and maintenance budget. Expenditures from the reserve fund may be made by the directors if, in their judgment, extraordinary operation or maintenance of project works is necessary.
Source: SL 1984, ch 293, § 56.
46A-18-57.1. Reserve fund for project development and construction.
In addition to the fund authorized in § 46A-18-57, the directors may establish a separate reserve fund for project development and construction. The directors shall publish the amount budgeted for the fund for the following calendar year, the amount of money in the fund, and an explanation of the intended use of the money in the fund with the notice of the annual meeting required in § 46A-18-24.
Source: SL 1990, ch 366, § 16; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1995, ch 253, § 19.
46A-18-59. Levies for operation and maintenance.
Tax or special assessment levies in an amount sufficient to cover the budgeted operation and maintenance expense shall be included by the district directors in their tax assessment list. However, the levies may not exceed the limitations specified in this chapter and may not exceed the amounts of taxes or special assessments approved by the electorate of the district.
Source: SL 1984, ch 293, § 58; SL 1986, ch 381, § 3.
46A-18-60. Certification of taxes and assessments--Collection--Deposit and disbursement of proceeds.
On or before the first day of August of each year, the directors shall certify to the county auditor of each county in which district lands are located all taxes and assessments against the real property in the district. Extension of the taxes upon the tax and assessment lists shall be made as specified in this chapter and the taxes shall be collected in the same manner as other county taxes and assessments. These funds shall be deposited with the secretary-treasurer of the water project district, who shall place them in the depository designated by the directors. They shall be disbursed as provided in this chapter.
Source: SL 1984, ch 293, § 59; SL 1990, ch 366, § 17.
46A-18-61. Acceptance of grants and gifts.
Any district organized pursuant to this chapter may obtain grants or loans from any federal or state agency pursuant to any acts of Congress or the Legislature independently or in conjunction with any other power conferred by this chapter and may accept, from private owners or other sources, gifts, deeds, or instruments of trust or title relating to any form of property.
Source: SL 1984, ch 293, § 60.
46A-18-62. County contributions to districts.
In addition to other powers specified by law, a board of county commissioners may contribute to districts assistance as necessary for the benefit of the county highway system, for maintenance of flood control or for water management and erosion control measures from the road fund.
Source: SL 1984, ch 293, § 61.
46A-18-63. Acquisition of real property and easements--Condemnation.
A district may purchase real property, rights-of-way, or easements as necessary. If necessary, it may condemn them. If a district finds it necessary for maintenance of any part of improvements already constructed to add further construction or other improvements, the district, if not able to agree with the landowner on the terms for the acquisition of the interest in land needed for such purpose, may condemn the property for the purpose of fixing the amount to be paid for the interest in property so taken. Appraisal of the property shall be made by a committee of appraisers approved by the directors.
Source: SL 1984, ch 293, § 62; SL 1995, ch 253, § 21.
46A-18-64. Contracts and arrangements by district authorized.
The district directors may enter into contracts or other arrangements with the United States government or any department, with persons, with public and municipal corporations, with the government of this state, with drainage, soil and water conservation, conservancy, sewer, park, sanitary, reclamation, public power, irrigation, watershed, or other improvement districts, in this or other states. The contracts or arrangements may be for cooperation or assistance in constructing, maintaining, using, and operating the works of the districts, the waters thereof, or in minimizing or preventing damage to the properties, works and improvements of the districts from soil erosion, or for making surveys and investigations or reports thereon.
Source: SL 1984, ch 293, § 63.
46A-18-65. Contracts to furnish water--Other contracts.
The district board may enter into contracts to furnish water and other services and may, subject to the provisions of this chapter, fix and establish prices, rates, and charges at which the resources and facilities made available under the provisions of this chapter shall be sold and disposed of. The board may enter into contracts and agreements and do any things which in its judgment are necessary, convenient, or expedient for the accomplishment of the purposes and objects of this chapter, under such general regulations and upon such terms, limitations, and conditions as it shall prescribe.
Source: SL 1984, ch 293, § 64.
46A-18-66. Pledge of security for obligations--Revenue.
A district may pledge security for any district obligations. Any district issuing obligations under the provisions of this chapter may pledge all or any part of the revenues which the district may derive from the sale, conveyance, or distribution of water or other services as security for payment of the principal and interest. Any pledge of revenues shall be made by the directors of the district by resolution or by agreement with the holders of district obligations. Any resolution or agreement may specify the particular revenues that are pledged, the terms and conditions to be performed by the district and the rights of the holders of district obligations and may provide for priorities of liens on any revenues between holders of district obligations issued at different times or under different resolutions or agreements.
Source: SL 1984, ch 293, § 65.
46A-18-67. Depository for district funds.
All funds of the district shall be deposited by the district secretary-treasurer in a depository designated and approved by the directors and all warrants shall be drawn on the district.
Source: SL 1984, ch 293, § 66.
46A-18-68. Claims against district--Payment by warrant or order--Registration.
All claims against water project districts shall be paid by warrants or orders drawn on the district secretary-treasurer, signed by the chair of the district, and countersigned by its secretary-treasurer. If warrants or orders have been issued and delivered, they may be presented to the secretary-treasurer of the district. If necessary, the secretary-treasurer shall endorse them "not paid for want of funds." These orders or warrants shall be registered by the secretary-treasurer in order of presentation and shall draw interest annually at a rate negotiated by the parties from the date of registration. They shall be registered by the district secretary-treasurer in anticipated receipt of water project district taxes or assessments due the district.
Source: SL 1984, ch 293, § 67; SL 2011, ch 165, § 542.
46A-18-69. Services provided without charge to district.
All county officials shall perform the services outlined in this chapter free of charge to the district. The services of the Board of Water and Natural Resources, as provided in this chapter, also shall be free of charge to the district.
Source: SL 1984, ch 293, § 68.
46A-18-72. Investigation of district operations--Hearing--Order for correction.
The Board of Water and Natural Resources may at any time investigate the operations of any district. If it discovers the operations are detrimental to proper utilization of waters or existing rights, the board may in its discretion hold a hearing to obtain facts and information. After the hearing, the Board of Water and Natural Resources may order the district directors to correct the operation. If the directors fail to make the ordered corrections, the board may procure a court order to prevent further detrimental operations.
Source: SL 1984, ch 293, § 71.
46A-18-73. Municipalities' powers as to waterworks unaffected.
This chapter may not be construed to deprive any municipality within the state, located either wholly or partially within any district, from the exercise of any rights to construct, acquire, operate, maintain, or dispose of waterworks or to perform other of its lawful functions. However, any municipality may contract with any district for storage, purchase, or distribution of water for municipal, domestic, or industrial purposes.
Source: SL 1984, ch 293, § 72; SL 1992, ch 60, § 2.
46A-18-74. Petition for dissolution of district--Election--Notice--Ballots.
Twenty-five or more qualified voters or twenty-five percent of the qualified voters of a water project district, whichever is less, may petition the district directors to submit to an election the question of dissolving the district and settling its bonded and other indebtedness. Upon receipt of the petition the directors shall call a special election to be held within no less than sixty days but no more than ninety days after receipt of the petition. Notice of the election shall be published in a legal newspaper of general circulation in each county or counties in the district once each week for three successive weeks. The notice shall state that an election is to be held to determine whether the water project district shall be dissolved. The ballots shall read as follows:
For dissolution of (Name) Water Project District ()
Against dissolution of (Name) Water Project District ().
Source: SL 1984, ch 293, § 73; SL 1990, ch 366, § 18.
46A-18-75. Vote required for dissolution--Winding-up procedure.
If less than sixty percent of the votes cast in the election are for dissolution of the district, the district shall continue in operation and there may not be another vote on dissolving the district for one year. If at least sixty percent of the votes cast are for dissolution, the directors shall immediately in writing notify the Board of Water and Natural Resources and all persons having claims against the district. The real and personal property of the district shall be sold by auction to the highest bidder, as arranged by the directors, after notice of the time, place, and method of conducting the auction has been published in legal newspapers of general circulation in each county that has land within the district for two consecutive weeks prior to the auction. The proceeds of the auction shall be applied to the outstanding obligations of the district. After all obligations have been met, the remaining funds, if any, shall be prorated back to the landowners in proportion to the latest assessment rolls. However, if the district, prior to dissolution, has received any grants or loans from any federal or state agency or the Legislature independently or in conjunction with any other power conferred by this chapter or has received from private owners or other sources, gifts, deeds, or instruments of trust or title relating to any form of property, the unused portion of the items shall be returned to the contributing entity or person. If the contributing entity or person will not accept a return or is no longer in existence or alive and no direction as to disposition upon dissolution was given by the contributor, the unused portion shall be deposited in the water and environment fund, established pursuant to § 46A-1-60.
Source: SL 1984, ch 293, § 74; SL 1990, ch 366, § 19; SL 1991, ch 17 (Ex. Ord. 91-4), § 17; SL 1992, ch 254, § 8; SL 1995, ch 253, § 24.
46A-18-76. Resolution dissolving district--Filing.
Upon notification by the district directors of a vote to dissolve the district, the Board of Water and Natural Resources shall by resolution dissolve the water project district and shall file a copy of the resolution with the secretary of state.
Source: SL 1984, ch 293, § 75.
46A-18-77. Satisfaction of obligations outstanding after dissolution.
If, after a water project district has been dissolved and all assets of the district have been disposed of, any obligations of the district remain outstanding, the Board of Water and Natural Resources shall exercise the power and authority of the district board of directors until such time as all responsibilities, obligations, and contractual commitments of the dissolved district have been satisfied.
Source: SL 1984, ch 293, § 76.
CHAPTER 46A-19
RIVER BASIN NATURAL RESOURCE DISTRICTS [REPEALED]
46A-19-1 Repealed.
46A-19-2 Repealed.
46A-19-3 Repealed.
46A-19-4 Repealed.
46A-19-5 Repealed.
46A-19-6 Repealed.
46A-19-7 Repealed.
46A-19-8 Repealed.
46A-19-9 Repealed.
46A-19-10 Repealed.
46A-19-11 Repealed.
46A-19-12 46A-19-12 to 46A-19-15. Executed.
46A-19-16 Repealed.
46A-19-17 Repealed.
46A-19-12 to 46A-19-15. Executed.