South Dakota water project districts (special-purpose political subdivisions formed under SDCL ch. 46A-18) are funded by tax levy or special assessment, and bond elections need 60% approval. The TLC Water Project District wanted to know who actually gets to vote in those bond elections. Do 'registered voters' have to also be landowners? Do landowners voting on special assessments have to be registered voters, or residents of the district? After 1998 statutory reorganization muddied the rules, district presidents needed a clear answer.

Plain-English summary

A water project district in South Dakota is a special-purpose political subdivision formed to manage water resources for a particular area, usually rural. The Turner/Lincoln/McCook (TLC) Water Project District covered parts of three counties (Turner, Lincoln, McCook). It was organized under SDCL ch. 46A-18. Like other water project districts, it had statutory authority to fund projects out of general operating income or by levying special assessments against the benefited properties. Big projects needed bonds. Bond elections needed 60% approval (SDCL 46A-18-45). The hard question: who actually got to vote?

TLC's president, Gary Anderson, asked AG Larry Long for a written answer. The 2006 opinion (06-01) untangled the post-1998 statutory mess.

Before 1998, the rules were flexible. The original 1984 legislative scheme for water project districts let the organizers of each district pick the "qualified voters" of the district from three options: (a) registered voters of the district, (b) owners of real property listed on the county tax rolls, or (c) both. The organizers selected one of the three in the organizing petition, depending on whether the district was mostly residents, mostly absentee landowners, or a mix. The prevailing legislative philosophy was "those who pay should be the ones who vote." A lakeside summer-home district with mostly absentee landowners would pick "owners on the tax rolls." A typical rural district with mostly resident landowners would pick "registered voters." A mixed district might pick "both."

In 1998 the Legislature decided to standardize the creation procedure for a bunch of special-purpose districts (county road, ambulance, rural fire, sanitary, irrigation, watershed, water project). That standardization is now in SDCL ch. 6-16. The Legislature decided that for those creation elections, only "registered voters" could vote. Two side effects were big:

1. SDCL 46A-18-5 (the old definition of "qualified voter" for water project districts) got repealed. Once 46A-18-5 was gone, the statutes about director elections, director divisions, and nominating petitions still referenced "qualified voters" but with no statutory definition.

2. SDCL 46A-18-47 (the bond election voter eligibility statute) had pointed to the now-repealed 46A-18-5 to identify who could vote. In 2002 the Legislature came back to clean part of this up, amending SDCL 46A-18-23 (annual elections) to specify "registered voters" and amending SDCL 46A-18-47 to also say "registered voters are eligible to vote" in bond elections.

But the 2002 cleanup did not fully fix the picture. SDCL 46A-18-47's second sentence had been there since 1984 and said: "If special assessments are proposed, only those landowners subject to such assessments may vote." That sentence did not require those landowners to be registered voters, or even residents of the district.

The 2006 AG had to read these mismatched pieces together.

Tax-levy bonds. For bond elections where the project would be funded by tax levies and the bonds secured by those tax levies, SDCL 46A-18-47 first sentence controlled: registered voters were eligible to vote. The AG held that those registered voters had to be residents of the water project district (because "registered voters" of the district means registered voters residing in the district). They did not have to be landowners. A renter who was a registered voter of the district could vote on tax-levy bonds.

Special-assessment bonds. For bond elections where the project would be funded by special assessments and the bonds secured by those assessments, SDCL 46A-18-47 second sentence controlled: only the landowners subject to those assessments could vote. The AG held that those landowners did NOT have to be registered voters, and did NOT have to be residents of the district. A nonresident landowner whose property was subject to the special assessment could vote on the special-assessment bonds. The rationale tracked the 1984 legislative philosophy that those paying the bills should vote: special assessments target specific properties, so the property owners pay, and the property owners vote on whether to incur the obligation.

Combined bonds. If the bonds were to be secured partly by tax levies and partly by special assessments, SDCL 46A-18-47 required separate vote counts. The general-tax piece needed 60% of the registered voters voting, and the special-assessment piece needed 60% of the assessed landowners voting, with each piece counted separately. Both pieces had to clear 60% for the bonds to be approved.

The AG closed with a broader concern. Several other water-project-district statutes still used the term "qualified voter," but the 1998 repeal of SDCL 46A-18-5 had left "qualified voter" undefined in statute. SDCL 46A-18-4(5) requires a director to be a "qualified voter" of the district. SDCL 46A-18-25 requires nominating-petition signers to be "qualified voters." SDCL 46A-18-8 requires director divisions to provide equal representation based on the number of "qualified voters" in each area. These references created two possible readings: "qualified voter" might just mean "registered voter" (the simplest interpretation), or "qualified voter" might still refer to whatever the original organizing petition specified for a particular pre-1998 district (the more disruptive but arguably faithful interpretation). The AG did not resolve this ambiguity but flagged it as a legislative cleanup item.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL ch. 46A-18 has been amended several times since 2006, and the "qualified voter" issues the AG flagged may have been addressed by subsequent legislation. Anyone running a water-project-district bond election today should confirm the current text of SDCL 46A-18-47, 46A-18-45, and related provisions.

What the opinion meant at the time

For TLC Water Project District and other South Dakota water project districts contemplating bond financing, the opinion delivered a workable framework. The district's secretary or attorney could draft a bond resolution that specified whether the bonds were tax-levy, special-assessment, or combined, and the voter-eligibility rules followed automatically.

For tax-levy bond elections, the practical implication was that the district had to maintain a list of registered voters who were residents of the district. Standard county voter rolls, filtered by residence within the district boundaries, supplied that list.

For special-assessment bond elections, the practical implication was that the district had to maintain a list of the landowners subject to the proposed special assessment. This list included nonresident landowners (e.g., a summer-home owner who lived elsewhere full-time) and could include corporate or institutional landowners whose principal place of business was outside the district.

For combined bond elections, the practical implication was that the district had to run essentially two parallel elections. The voter rolls were different, the vote totals were counted separately, and the 60% threshold had to be cleared in each pool. Neither pool's approval alone was sufficient.

For directors of water project districts and for attorneys preparing nomination petitions, the opinion did NOT resolve who could sign a director-nomination petition or who could serve as a director. The "qualified voter" term remained ambiguous. The conservative practice after 2006 was probably to treat "qualified voter" as meaning "registered voter resident of the district" unless a pre-1998 organizing petition expressly preserved a different rule.

For nonresident landowners (the absentee-summer-home category that the original 1984 scheme had been written for), the opinion partially protected their voting rights: they could still vote on special-assessment bonds that affected their property. They could not, however, vote on tax-levy bonds even though tax levies (general property tax against the entire district) would also affect their property bills if they were paying property tax to the district. That asymmetry was not the AG's choice; it followed from the Legislature's repeal of SDCL 46A-18-5.

For state legislators and the SD water-project-district trade association, the opinion provided a roadmap of what needed legislative attention. "Qualified voter" needed to be defined or eliminated. The disenfranchisement of nonresident landowners in tax-levy elections needed to be evaluated. Director divisions needed a clear basis (registered voters versus landowners).

Common questions

Q: Who could vote in a water project district tax-levy bond election?
A: Registered voters of the district, residing within the district boundaries. They did not have to be landowners.

Q: Who could vote in a special-assessment bond election?
A: Landowners subject to the proposed special assessment. They did not have to be registered voters or residents of the district.

Q: What about combined tax-and-assessment bonds?
A: Two parallel pools. Registered resident voters voted on the tax-levy portion. Assessed landowners voted on the assessment portion. Each pool needed 60% approval. The vote totals were counted separately.

Q: Could a nonresident absentee landowner vote in tax-levy bond elections?
A: No. Only registered voters resident in the district could vote in tax-levy bond elections after the 1998 statutory changes (this represented a change from pre-1998 practice in some districts).

Q: Could a renter who was a registered resident of the district vote on tax-levy bonds?
A: Yes, if registered to vote in the district.

Q: What was the threshold to approve bonds?
A: 60% favorable vote (SDCL 46A-18-45).

Q: Did this opinion resolve who can serve as a district director?
A: No. The opinion flagged that SDCL 46A-18-4(5) still requires directors to be "qualified voters," but the 1998 repeal of SDCL 46A-18-5 left "qualified voter" undefined. The AG recommended a legislative fix.

Q: What about director divisions for equal representation?
A: Same issue. SDCL 46A-18-8 still references "qualified voters" as the basis for drawing director divisions. The AG flagged this as a problem in need of legislative attention.

Q: Why did the 1998 changes create this mess?
A: The 1998 Legislature was trying to standardize creation procedures across multiple types of special-purpose districts. The standardization made sense for creation elections, but the consequential repeal of SDCL 46A-18-5 (the qualified voter definition) propagated through other statutes that still referenced the now-undefined term.

Background and statutory framework

A water project district is a special-purpose political subdivision under SDCL ch. 46A-18, devoted to the prudent management of water resources. Districts are formed by petition and approved at a formation election. Districts have a board of directors. Districts have statutory authority to fund projects from general operating income, by tax levy, by special assessment, or by issuing bonds backed by any of those revenue streams.

The TLC Water Project District covered Turner, Lincoln, and McCook counties. The 2006 opinion request came from TLC's president and reflected real operational confusion about who could vote on financing decisions that had been on the table for the district.

The 1984 original framework. When the Legislature first authorized water project districts in 1984, SDCL 46A-18-4(6) (since repealed) gave organizers three options for "qualified voters":
- Registered voters of the district
- Owners of real property listed on the county tax rolls
- Both

Organizers chose one of the three in the organizing petition, depending on the district's expected makeup (resident-heavy, absentee-landowner-heavy, or mixed). The philosophy was that those who pay should vote.

The 1998 reorganization. SDCL ch. 6-16 was enacted to standardize creation procedures for special-purpose districts (county road, ambulance, rural fire, sanitary, irrigation, watershed, water project). Per SDCL 6-16-1, those formation elections allowed only registered voters to vote, with limited exceptions per SDCL 6-16-6 (irrigation districts and certain road districts).

SDCL 46A-18-5, the qualified-voter definition for water project districts, was repealed in 1998. Other statutes that referenced 46A-18-5 ceased to be self-consistent.

The 2002 partial cleanup. SDCL 46A-18-23 was amended in 2002 to specify "registered voters" voting in annual elections. SDCL 46A-18-47 was amended in 2002 to eliminate the cross-reference to the repealed 46A-18-5 and replace it with "registered voters are eligible to vote." The second sentence of 46A-18-47, about landowner voting on special assessments, was left unchanged from 1984.

The post-2002 reading. The 2006 AG's reading sliced the SDCL 46A-18-47 sentences:
- First sentence: registered voters are eligible to vote (interpreted as resident registered voters);
- Second sentence: landowners subject to special assessments may vote (interpreted as not requiring registration or residency);
- Third sentence: in combined-funding elections, the two pools are counted separately.

The opinion's secondary concern was the dangling "qualified voter" references in SDCL 46A-18-4(5), 46A-18-8, and 46A-18-25. Those statutes had not been amended in 2002 to track the changes in 46A-18-47. The AG noted that "qualified voter" could plausibly be read as either "registered voter" (the simplest interpretation post-1998) or as whatever the original organizing petition specified (a more disruptive interpretation for pre-1998 districts). The opinion did not pick a winner but flagged the ambiguity.

The opinion's larger structural complaint was directed at the Legislature. The 1998 reorganization had unintentionally disenfranchised nonresident landowners from district director elections and from the foundation of the director-division equal-representation rule. Those nonresident landowners had been part of the original design (the 1984 scheme had let absentee-landowner-heavy districts opt for the "owners on tax rolls" voter base). The 1998 changes washed that out by default. The AG recommended legislative attention but stopped short of holding the 1998 framework unconstitutional or invalid.

Citations and references

Statutes:
- SDCL ch. 46A-18 (water project districts)
- SDCL 46A-18-4(5) (director qualifications)
- SDCL 46A-18-4(6) (organizing petition; qualified voter selection; repealed 1998)
- SDCL 46A-18-5 (qualified voter definition; repealed 1998)
- SDCL 46A-18-8 (director divisions)
- SDCL 46A-18-23 (annual elections)
- SDCL 46A-18-25 (nominating petition signature)
- SDCL 46A-18-32(5), (6) (funding authority)
- SDCL 46A-18-42 (bonds)
- SDCL 46A-18-45 (60% bond election approval)
- SDCL 46A-18-47 (bond election voter eligibility)
- SDCL ch. 6-16 (uniform creation procedure)
- SDCL 6-16-1, 6-16-6 (scope and exceptions)

Cases:
- Sioux Falls Employees v. Sioux Falls, 233 N.W.2d 306 (S.D. 1975)
- Martinmaas v. Engelmann, 2000 S.D. 85, 612 N.W.2d 600

Prior AG opinions:
- South Dakota AGR 87-33 (water project district enumerated powers)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2006-01.pdf

Original opinion text

Official Opinion 06-01, Water Project District Elections

January 24, 2006

Mr. Gary Anderson
President, TLC Water Project District
111 Railway
Centerville, SD 57014

Re: Official Opinion 06-01
Water Project District Elections

Dear Mr. Anderson:

You have requested an opinion from this Office concerning the following factual situation:

FACTS:

Turner/Lincoln/McCook Water Project District (the "District") is a political subdivision of the State of South Dakota formed pursuant to SDCL Chapter 46A-18. The District is granted statutory authority to fund projects out of its general operating income or through special assessments as found in SDCL 46A-18-32(5) and (6). As a condition precedent to the exercise of the authority granted by SDCL 46A-18-32, the District must comply with SDCL 46A-18-45. As the District interprets this statute, the use of special assessments and bonding beyond the current fiscal year would require an election to approve the particular financing methodology to be employed.

SDCL 46A-18-47 indicates that approval of bonds or multi-year special assessments would require approval of the voters. The first sentence of that statute states that "registered voters are eligible to vote." The second sentence says that if "special assessments are proposed, only those landowners subject to such assessments may vote", but does not indicate that those landowners have to be registered voters. The statute does not appear to restrict this voting right to registered voters who own land within the District or who reside and are registered voters in the district. In the case of absentee landowners, while they may be registered voters, they may in fact be landowners residing outside the District boundaries or the State of South Dakota.

Based on these facts you have asked the following questions.

QUESTION:

For projects which require multi-year repayment by levy of taxes or special assessments, does SDCL 46A-18-47 require that "registered voters" have to be landowners in order to vote, and do such registered voters or landowners have to maintain their voting residence within the boundaries of the District?

IN RE QUESTION:

A water project district is a special purpose district devoted to the prudent management of water resources. It is a political subdivision which has only those powers specifically granted by the Legislature, together with those powers necessarily implied to carry out the express authority. Sioux Falls Employees v. Sioux Falls, 233 N.W.2d 306 (S.D. 1975); AGR 87-33. A water project district has the authority to borrow money to construct projects by issuing bonds. Those bonds may be secured by a tax levy, by special assessments, or by a combination of both. SDCL 46A-18-42. If the district tax levies or special assessments are obligated for longer than the current fiscal year, the financing has to be approved by a 60% favorable vote in an election of the district's voters. SDCL 46A-18-45.

The essence of the question you pose is who may vote in such an election. SDCL 46A-18-47 provides:

In the election provided in § 46A-18-45, registered voters are eligible to vote. If special assessments are proposed, only those landowners subject to such 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.

You ask whether the phrase "registered voters" as used in this statute means that such voters must also be landowners, and further whether such registered voters or landowners have to maintain a voting residence within the boundaries of the water project district. The question is one of legislative intent.

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.

Martinmaas v. Engelmann, 2000 S.D. 85, ¶49, 612 N.W.2d 600, 611.

To understand the intent of the statute it is necessary to examine the history of the right to vote in water project district elections. When the creation of these political subdivisions was first authorized in 1984, the Legislature defined the "qualified voters" of the district as either registered voters, owners of real property listed on the county tax rolls, or both. The organizers of the district were allowed to select in the organizing petition for the district which of those three options would apply in that district. SDCL 46A-18-4(6) (repealed 1998).

The rationale for the differing options lay with the variety of purposes for which these districts could be formed. Some were created around lakes and consisted largely of nonresident landowners with summer homes. Others undertook water projects that benefited more typical housing areas, and consisted of largely resident landowners. Some projects were in rural areas consisting largely of farmers and ranchers. At the time the prevailing philosophy in the Legislature was that those who benefited from these projects should pay, and those who paid should be the ones entitled to vote.

Thus originally there was some flexibility provided as to who constituted the "qualified voters" of a particular district to allow the organizers to choose the best fit in terms of those paying the bills. Those districts consisting of mostly resident landowners chose "registered voters" as their qualified voters. Those districts consisting mostly of nonresident landowners chose "owners of real property listed on the county tax rolls". Some undoubtedly chose the "both" option which meant that only registered voters who were owners real property listed on the county tax roles could vote.

That changed in 1998. As part of an effort to standardize the creation procedures for a variety of special purpose districts, the Legislature adopted what is now SDCL chapter 6-16. That chapter adopts a one size fits all approach for a variety of special purpose political subdivisions as it applies to elections for the creation of such districts and the initial election of the governing board of such districts. This chapter applies to county road, ambulance, rural fire protection, sanitary, irrigation, watershed, and water project districts. SDCL 6-16-1. The decision was made that only "registered voters" could vote in these formation elections. (There were exceptions for irrigation districts and certain road districts. SDCL 6-16-6.)

As it applies to water project districts, the problems arise not so much from the new statutes in SDCL chapter 6-16 governing those initial elections, but from the statutes in SDCL chapter 46A-18 that were repealed to accomplish that uniform creation procedure, and from statutes that were not changed and continue to use phrases or refer to statutes that were repealed in 1998.

SDCL 46A-18-5, which defined a qualified voter in a water project district, was repealed in 1998. This meant that, as it applied to the election of directors, the statutes were silent as to who was eligible to vote. SDCL 46A-18-23 simply said that voters could vote at annual elections.

SDCL 46A-18-47, however, continued to state that, for bond elections held in accordance with 46A-18-45, eligibility to vote was governed by SDCL 46A-18-5. The original intent of SDCL 46A-18-47 was that whomever the district organizers had originally selected to be qualified voters would be eligible to vote in a bond election. If they chose registered voters, that is who would vote. If they chose owners of real property listed in the county tax rolls, that is who would vote. With the repeal of the definition of qualified voter in 1998 it became very difficult to determine who was eligible to vote in bond elections.

The Legislature acted in 2002 to correct this problem by amending SDCL 46A-18-23 to provide that registered voters voted in annual elections. The Legislature also amended SDCL 46A-18-47 to eliminate the reference to the repealed SDCL 46A-18-5, and replace it with language that says "registered voters are eligible to vote" in bond elections.

The balance of SDCL 46A-18-47, however, has remained unchanged from its original 1984 form. The statute has consistently provided that if the project is being financed by special assessments "only those landowners subject to such assessments may vote." Thus, as it applies to projects funded by special assessment, I see no legislative intent to change that basic original philosophy that those who benefited from these projects should pay, and those who paid should be the ones entitled to vote.

It is against this backdrop that your questions must be examined. Accordingly it is my opinion that, if as a result of decisions made under SDCL 46A-18-45, the water project district has determined that the project will be funded by tax levies, and proposes to issue bonds secured by those tax levies, registered voters are entitled to vote in the bond election under SDCL 46A-18-47. In my opinion, those registered voters must be residents of the water project district, but I find no indication of legislative intent that these registered voters also have to be landowners.

If as a result of decisions made under SDCL 46A-18-45, the water project district has determined that the project will be funded by special assessments, and proposes to issue bonds secured by those special assessments, only those landowners subject to the special assessments are entitled to vote in the bond election under SDCL 46A-18-47. There is no legislative intent reflected in these statutory provisions as amended that indicates that the landowners subject to special assessment who are eligible to vote an election under SDCL 46A-18-47 need to be registered voters, or even resident landowners.

If both tax levies and special assessments are pledged to repay the bonds, "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." That means that 60% of the registered voters voting would have to approve the bonds, as well as 60% of the landowners subject to the special assessment in order for the bonds to be approved.

While that answers the question you raised, as it relates to water project districts, there are other questions arising from these legislative changes. I note that now only registered voters may vote in an annual election, even if the district was formed to be governed by owners of real property listed on the county tax roles, many of whom may have been nonresident landowners. This creates a situation which may disenfranchise a majority of those whose property is taxed to pay the bills and who, more than 10 years ago, were given the power to govern in their district when originally formed.

Second, SDCL 46A-18-4(5), which defines who may serve as a director, still provides that a director must be a "qualified voter" of the district. SDCL 46A-18-25, which deals with the signing of nominating petitions for directors, also still requires the signature of "qualified voters" to nominate a candidate. Director divisions in these water project districts were also drawn to insure equal representation based on the number of "qualified voters" in each area. SDCL 46A-18-8. "Qualified voter" is a term that is no longer defined in statute. Certainly it could be argued that the Legislature simply intended to make the term "qualified voter" mean "registered voter". It is equally as plausible that the Legislature intended that original delineation of eligibility to vote that was set forth in the initiating petition would continue to govern those water projects districts formed prior to 1998. Those districts were formed under an initiating petition that, in accordance with the governing statutes at the time, specified eligibility to vote in a water project district election, and thus eligibility to run for office. See SDCL 46A-18-4(6) (repealed 1998). It is simply not clear whether those original designations of eligibility to vote or serve as a director or sign a nominating petition continue to govern those particular districts, or whether the Legislature intended to fundamentally alter the way these existing political subdivisions govern themselves.

I raise these matters because they identify serious concerns about people's continued right to vote and eligibility to serve as directors in these pre 1998 districts, as well as concerns about the whether director divisions continue to provide for equality of representation. I strongly suggest these matters be addressed legislatively.

Respectfully submitted,

LARRY LONG
ATTORNEY GENERAL
1302 E. Highway 14, Suite 1
Pierre, SD 57501

LL:HHD: