When an excavator calls One Call in SD before digging near a house and the dig will affect the water service line or sewer service line running from the public right-of-way to the building, whose responsibility is it under SDCL chapter 49-7A to come out and mark the line: the water/sewer utility (operator) or the homeowner (property owner who arguably owns the service line)? And does the One Call locate obligation extend all the way from the right-of-way to the meter (water) or to the building (sewer), or does the homeowner take over at some point?

Plain-English summary

When somebody is going to dig near a house in SD (a new sidewalk, a fence, a tree planting, a pool, anything that disturbs the ground), they're supposed to call One Call first. One Call (codified at SDCL ch. 49-7A) notifies utility operators in the area, who then come mark their underground facilities so the excavator can dig safely.

In 2008, some water and sewer utilities had taken the position that the homeowner, not the utility, was responsible for marking the water and sewer service lines running from the right-of-way to the house. The utilities reasoned that the homeowner "owned" the service line (under typical service-area policies that say the service line is the customer's property), so the homeowner was the "operator" under SDCL 49-7A.

The result was that excavators were calling One Call, the locate tickets were going out, but the water and sewer service lines weren't getting marked. Excavators were hitting them and damage was common. The Dakota One Call Notification Board (the body that runs SD's One Call system) asked the AG to clarify.

The AG's answer was: the utility, not the homeowner.

The textual reason is straightforward. SDCL 49-7A-1(7) defines "operator" as "any person who operates an underground facility." The word "own" doesn't appear. The Legislature knows how to include "owner" in a definition: Colorado's One Call statute (C.R.S.A. § 9-1.5-102) defines "operator" as "Operator or Owner" expressly. Minnesota's statute (M.S.A. § 216 D.01) similarly includes "owner." SD chose not to. Under the canon that the Legislature knows how to include and exclude (Sanford v. Sanford, State v. Young), the omission of "owner" from SD's "operator" definition is purposeful. Operators are people who operate, not necessarily people who own.

The structural reasons reinforce. SDCL 49-7A-12 and 49-7A-13 both have an "if unknown" fallback: if the excavator can't determine who the operator is, the excavator notifies One Call. That fallback makes no sense if the operator were the property owner. The register of deeds would always tell the excavator who owned the land. The "unknown" fallback is meaningful only if "operator" means someone other than the property owner (the utility company, the municipality, etc., whose identity may not be immediately apparent at the site).

The absurd-result argument seals it (Martinmaas v. Engelmann, Gossman, Nelson). If homeowners were operators, every SD homeowner with a service line would have to:
- Become a One Call member (and pay membership fees).
- Submit the location of their service lines to One Call.
- Respond to locate tickets within 48 hours (or as little as 2 hours in emergencies, per ARSD 20:25:03:10).
- Get the marking equipment (paint, flags, stakes) and learn how to mark.
- Face civil liability and statutory penalties (SDCL 49-7A-18, -19) for failures.

That's an absurd burden. Most homeowners don't know where their service lines are precisely (and certainly couldn't mark them within 18 inches horizontally per SDCL 49-7A-8). The Legislature would not have intended to drop that obligation on homeowners.

The composition of the One Call Notification Board (SDCL 49-7A-3) also points the same direction. The 11-member board has seats for telecommunications companies, rural water systems, rural electric cooperatives, investor-owned electric utilities, investor-owned natural gas utilities, cable companies, municipalities, interstate gas/petroleum pipelines, and excavator contractors. No seat for private homeowners. The Legislature designed the One Call system as a utility-and-excavator system, with the rule-making and enforcement power over those two groups. Homeowners are not in the design.

The opinion also points to comparable readings of other states' statutes. The Colorado Court of Appeals in Wycon Construction (1993) read Colorado's "operator or owner" language to mean municipalities, not private owners. New York's City of Albany (1996) similarly held that ownership of the conduit was irrelevant; the operator was the entity actually running the facility. A Minnesota administrative ruling concluded that private homeowners and tenants were not operators under M.S.A. § 216 D.01. The cross-state consensus is that One Call rules target utilities and municipalities, not private property owners.

On the second question (whether the underground facility definition extends from the right-of-way to the meter/building):

SDCL 49-7A-15 exempts "underground facilities owned or operated by the landowner on his own land which do not extend beyond the boundary of the private property." The key qualifier is "which do not extend beyond the boundary of the private property." A water service line connecting from a water main under the public right-of-way to a meter on the homeowner's property extends across the property line. A sewer service line connecting from a sewer main in the right-of-way to a building extends across the property line. The SDCL 49-7A-15 exemption doesn't apply to those service lines because they extend beyond the private property boundary.

SDCL 49-7A-8 requires the operator to mark facilities "in the proposed excavation area." There's no internal limit at the meter or the building. If the excavation extends across the property to the meter or building, the operator has to mark to that point. If the excavation requires marking somewhat beyond the dig site for safety, SDCL 49-7A also supports that.

The bottom line: SD water and sewer utilities (and municipalities operating water/sewer systems) had to mark service lines all the way to the meter or building when an excavation came within the locate-ticket radius. They couldn't hand the duty off to the homeowner.

Currency note

This opinion was issued in 2008. 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. 49-7A has been amended periodically since 2008, and the One Call rules under ARSD 20:25 have evolved. The structural principle (utility marks; homeowner does not) is likely stable, but specific marking standards and fee structures should be checked.

What the opinion meant at the time

For SD water and sewer utilities (including rural water systems, municipal water/sewer departments, and investor-owned utilities) in 2008, the opinion forced an immediate change in practice. The utilities had to begin marking water and sewer service lines from the right-of-way to the meter or building. That meant more locate tickets per call, more field time, and more equipment to maintain accurate as-built records for service-line routing.

For excavators, the opinion was good news. The locate ticket should now produce a real marking of service lines, not just a marking that stops at the property line. Excavators could expect better damage prevention and fewer surprises in residential excavation work.

For private homeowners, the opinion confirmed they did not have to register with One Call, pay locate fees, mark their service lines, or face liability for unmarked lines. The duty stayed where the Legislature put it: with the utilities.

For the Dakota One Call Notification Board, the opinion validated the Board's interpretation and gave the Board clear AG authority to enforce against utilities that refused to mark service lines. The Board could pursue civil liability and the statutory penalty provisions of SDCL 49-7A-18 and -19.

For SD municipal public works directors operating water and sewer systems, the opinion specified what their crews had to do when a locate ticket landed on a residential service line. The municipality, as the operator, had to send out a locator (or contract for one) to mark to the meter or building.

For construction contractors and developers planning residential or commercial work, the opinion provided more reliable damage prevention. The whole point of One Call is to prevent expensive and dangerous service-line strikes; the opinion clarified that the system actually had to work the way it was designed.

Common questions

Q: Who is the "operator" under SDCL 49-7A?
A: Per SDCL 49-7A-1(7), a person who operates an underground facility. Not who owns it. Typically utility companies, municipalities (for municipally-owned water and sewer), rural water systems, telecommunications companies, electric utilities, and similar entities running underground systems.

Q: Is the homeowner ever responsible for marking?
A: Generally no. The SDCL 49-7A-15 exemption covers private underground facilities that don't extend beyond the homeowner's property boundary. That covers things like a homeowner's private well line, a buried wire from the house to a yard light, an underground sprinkler system, etc. It does not cover service lines that connect to public utilities in the right-of-way.

Q: Does the utility have to mark to the building or just to the meter?
A: To the building if the excavation extends there. SDCL 49-7A-8 requires marking "in the proposed excavation area." There's no statutory cut-off at the meter. For sewer (which doesn't typically have a meter), the operator marks to the first termination at the building. For water, the operator marks to the meter; if the excavation extends past the meter and the line continues, the operator may need to mark further depending on whether the post-meter line is part of the utility's facility or the homeowner's.

Q: What is SDCL 49-7A-15's exemption for?
A: It exempts purely private underground facilities owned and operated by the landowner that don't cross the property line. Examples: a buried garden hose run, a buried low-voltage landscape light wire, a buried water line from a private well to a barn (if all on the same property), a buried propane line from a private tank to a heating appliance (if all on the same property).

Q: What if a homeowner has done their own service-line work and the utility doesn't have good records?
A: The utility still has the duty to mark within 18 inches horizontally per SDCL 49-7A-8. If the utility's records are inadequate, that's the utility's problem to solve through better record-keeping or field investigation. The duty stays with the utility regardless of record quality.

Q: What about gas service lines from the gas main to the house?
A: Same analysis. The gas utility is the operator. The gas utility marks from the main to the meter (or whatever point the utility's facility ends). The homeowner is not responsible for marking even though the homeowner may own portions of the gas line under utility tariffs.

Q: What does an excavator do if the utility doesn't mark?
A: SDCL 49-7A-13 says if the excavator is unable to locate the underground facility (e.g., it wasn't marked when it should have been), the excavator notifies the operator (or One Call). The excavator should not dig blindly through a probable utility location. Subsequent damages caused by an utility's failure to mark may shift liability to the utility.

Q: Are there penalties for utilities that fail to mark?
A: Yes. SDCL 49-7A-2 makes operators subject to penalties under SDCL 49-7A-18 and -19 and to civil liability for damages caused by noncompliance.

Background and statutory framework

SD's One Call system was established by the 1993 Legislature in response to a national push to reduce damage to underground utilities during excavation. The framework is codified at SDCL chapter 49-7A.

The basic mechanics: an excavator who plans to dig contacts One Call (SDCL 49-7A-5). One Call notifies the operators of underground facilities in the area. Each operator has typically 48 hours (or as little as 2 hours in an emergency, per ARSD 20:25:03:10) to mark the facility's location within 18 inches horizontally (SDCL 49-7A-8). The excavator then digs with the marks as a guide. If something gets hit, the excavator must notify the operator (SDCL 49-7A-12).

The system depends on operators being identifiable and complying. SDCL 49-7A-2 makes all operators subject to membership and reporting requirements. SDCL 49-7A-3 specifies the composition of the 11-member One Call notification board, with seats reserved for major utility categories and excavator representatives.

The dispute the AG addressed was a classification question: when a utility runs a service line from a main in the right-of-way to a meter or building on private property, who is the "operator" of that service line for One Call purposes? The utility had argued that under typical service-area policies the homeowner owns the service line, so the homeowner is the operator. The Board had argued that the utility is the operator regardless of ownership.

The AG sided with the Board on textual, structural, and policy grounds.

Textually, "operator" in SDCL 49-7A-1(7) doesn't include "owner." The Legislature could have written "operator or owner" (as Colorado and Minnesota did). It didn't.

Structurally, the "if unknown" fallbacks in SDCL 49-7A-12 and -13 only make sense if "operator" is someone different from the property owner.

Policy-wise, treating homeowners as operators would create absurd obligations: register with One Call, submit facility locations, respond to tickets within 48 hours (or 2 in emergencies), maintain marking equipment, face civil liability. The Legislature obviously didn't intend that, as confirmed by the One Call Board's composition (no homeowner seats) and the regulatory framework's focus on utility-and-excavator relationships.

The SDCL 49-7A-15 exemption is consistent with this reading. It exempts a landowner's purely-private underground facilities. It doesn't exempt service lines that cross the property boundary to connect to a public utility. Service lines remain "underground facilities" under SDCL 49-7A-1(9) and the utility remains the operator.

The marking duty extends through the proposed excavation area without an internal cut-off at the meter or building. Marking has to reach wherever the excavation reaches, so a deep dig near a building gets a marking that extends to the building. The operator can't stop short to save effort.

The cross-state authorities support the same reading. Wycon Construction (Colo. 1993), City of Albany (N.Y. 1996), and a Minnesota administrative ruling all came out the same way under their respective One Call statutes. The pattern is clear: One Call rules target utilities and municipalities, not private property owners.

The 2008 opinion's effect was substantial for residential excavation safety in SD. Service-line marking went from a gap in the One Call system to a covered duty. Excavators had a reliable expectation that water and sewer service lines would be marked. Utilities took on the cost and operational duty that the system was designed for.

Citations and references

Statutes:
- SDCL ch. 49-7A (One Call Notification System)
- SDCL 49-7A-1(4), (7), (8), (9) (definitions)
- SDCL 49-7A-2 (operator obligations and penalties)
- SDCL 49-7A-3 (board composition)
- SDCL 49-7A-5 (excavator notice)
- SDCL 49-7A-8 (operator marking duty)
- SDCL 49-7A-12 (damage notification)
- SDCL 49-7A-13 (unlocatable or mismarked facility notification)
- SDCL 49-7A-15 (landowner exemption)
- SDCL 49-7A-18, 49-7A-19 (penalties)
- ARSD 20:25:03:10 (operator response timing)
- C.R.S.A. § 9-1.5-102 (Colorado One Call, comparator)
- M.S.A. § 216 D.01 (Minnesota One Call, comparator)

Cases:
- Sanford v. Sanford, 2005 S.D. 34, 694 N.W.2d 283
- State v. Young, 2001 S.D. 76, 630 N.W.2d 85
- Wycon Const. Co. v. Wheat Ridge Sanitation Dist., 870 P.2d 496 (Colo. 1993)
- City of Albany v. Central Locating Serv., 228 A.D.2d 920 (N.Y. 1996)
- Martinmaas v. Engelmann, 2000 S.D. 85, 612 N.W.2d 600
- Matter of Estate of Gossman, 1996 S.D. 124, 555 N.W.2d 102
- Nelson v. South Dakota State Bd. Of Dentistry, 464 N.W.2d 621 (S.D. 1991)
- State v. I-90 Truck Haven Service, Inc., 2003 S.D. 51, 662 N.W.2d 288
- Dorman v. Crooks State Bank, 225 N.W. 661 (S.D. 1929)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1583

Original opinion text

STATE OF SOUTH DAKOTA
OFFICE OF THE ATTORNEY GENERAL

August 11, 2008

Larry Englerth
Executive Director
Dakota One Call Notification Board
1012 N. Sycamore Ave.
Sioux Falls, SD 57110

OFFICIAL OPINION NO. 08-07

Responsibility to mark underground facilities as is required by SDCL 49-7A

Dear Mr. Englerth:

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

FACTS:

In an effort to protect underground facilities, provide a safe work environment for employees, and ensure the safety of the general public, the South Dakota Legislature established the South Dakota One Call Notification System (The System) in 1993. The System was codified in SDCL Title 49 Chapter 7A. This chapter requires that all operators of underground facilities become members of the System. Operators are then required to notify the System of where their underground facilities are located. Before any excavation may begin, excavators are required to specifically notify the System of their intention to excavate. The System then notifies all operators who potentially have underground facilities in the excavation area. Once the System has notified the operators, they normally have 48 hours to mark the location of the underground facilities they operate.

When an excavator provides notification of excavation, some utility companies do not mark the water or sewer lines located in either the public right-of-way or on private real property. These utility companies contend that these lines are owned by the real property owner, making he/she the actual operator under SDCL 49-7A. Private homeowners would then be required to adhere to the marking responsibilities of SDCL 49-7A. As a result, the underground facility is often unidentified for the excavator, significantly increasing the risk of serious damage to both person and property. Leaving underground facilities unmarked can also lead to the potential for legal disputes to determine who is responsible for damage to those facilities.

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

QUESTIONS:

1. Pursuant to SDCL 49-7A, who is the party responsible for marking the underground water and sewer facilities in the right-of-way as required by SDCL 49-7A-8—the facility operator or real property owner?

2. Does SDCL 49-7A-1(9) (definition of underground facility) include the water facility from the right-of-way to the meter, thus requiring the marking of all underground water facilities from a right-of-way to the meter, as required by SDCL 49-7A-8, or is the operation of the underground water facility included under SDCL 49-7A-15 and so is excluded from the underground facilities covered in SDCL 49-7A-1(9)?

3. Does SDCL 49-7A-1(9) (definition of underground facility) include the sewer facility from the right-of-way to the first termination at the building on the real property, thus requiring the markings of all underground sewer facilities from a right-of-way to the building, as required by SDCL 49-7A-8, or is the operation of this underground sewer facility included under SDCL 49-7A-15 and so is excluded from the underground facilities covered under SDCL 49-7A-1(9)?

IN RE QUESTION 1:

SDCL 49-7A-1 provides definitions of the terms used throughout the chapter:

. . . .

(4) "Excavator," any person who performs excavation;

. . . .

(7) "Operator," any person who operates an underground facility;

(8) "Person," an individual, partnership, limited liability company, association, municipality, state, county, political subdivision, utility, joint venture, or corporation, and includes the employer of an individual;

(9) "Underground facility," any item of personal property buried or placed below ground for use in connection with the storage or conveyance of water, sewage, electronic, telephonic or telegraphic communications, fiber optics, cablevision, electric energy, oil, gas, hazardous liquids, or other substances including pipes, sewers, conduits, cables, valves, lines, wires, manholes, and attachments.

SDCL 49-7A-5 provides in part:

No excavator may begin any excavation without first notifying the one-call notification center of the proposed excavation. The excavator shall give notice by telephone or by other methods approved by the board...

SDCL 49-7A-8 provides in part:

An operator shall, upon receipt of the notice, advise the excavator of the location of underground facilities in the proposed excavation area by marking the location of the facilities with stakes, flags, paint, or other clearly identifiable marking within eighteen inches horizontally from the exterior sides of the underground facilities.

SDCL 49-7A-12 provides:

If any underground facility is damaged, dislocated, or disturbed in advance of or during excavation work, the excavator shall immediately notify the operator of the facility, or, if unknown, the one-call notification center of such damage, dislocation, or disturbance. No excavator may conceal or attempt to conceal such damage, dislocation, or disturbance, nor may that excavator attempt to make repairs to the facility unless authorized by the operator of the facility.

SDCL 49-7A-13 provides:

If in the course of excavation the excavator is unable to locate the underground facility or discovers that the operator of the underground facility has incorrectly located the underground facility, he shall promptly notify the operator, or, if unknown, the one-call notification center.

SDCL 49-7A-15 provides:

Underground facilities owned or operated by the landowner on his own land which do not extend beyond the boundary of the private property are not subject to the provisions of this chapter.

Based on the language used in the above-mentioned statutes, the intent of the Legislature becomes clear. The Legislature specifically outlined how the system was to work. Excavators are to notify the System about an upcoming excavation, the System must notify the operators, who then are to mark their facilities. Therefore, operators and not excavators are always required to mark both the lines they operate in the public right-of-way and service laterals which may travel across private property. The question then becomes who is the operator—the facility operator or the real property owner? Based upon the language used in the above-mentioned statutes, it is clear that the operator is the person who operates the underground facility, not the real property owner under SDCL 49-7A.

The term "operator" is defined at SDCL 49-7A-1(7). The word "own" is not found in the definition of the term "operator." It is a long held presumption in South Dakota that the Legislature knows how to include and exclude items from its statutes. Sanford v. Sanford, 2005 S.D. 34, ¶ 19, 694 N.W.2d 283, 289 (citing State v. Young, 2001 S.D. 76, ¶ 12, 630 N.W.2d 85, 89) (further citations omitted). If the Legislature had intended that the real property owner of the underground facility be the operator, the Legislature would have used the word "owner" in the definition of the term "operator."

For example, the Colorado One Call Statute defines operator as "Operator" or "Owner" and means "any person, including public utilities, municipal corporations, political subdivisions, or other persons having the right to bury underground facilities in or near a public road, street, alley, right of way, or utility easement." C.R.S.A. § 9-1.5-102. See also M.S.A. § 216 D.01 (Minn. Statute that also contains the word owner).

Those statutes, unlike SDCL 49-7A-1(7), specifically use the word owner. However, even though the Colorado statute uses the word owner, the Colorado Court of Appeals has held that private owners were not required by the statute to mark the underground facilities on their property. Wycon Const. Co. v. Wheat Ridge Sanitation Dist., 870 P.2d 496, 498 (Colo. 1993). That court determined that the reasonable interpretation of the statute was that the municipality should be responsible for marking the underground facilities. Id.; see also City of Albany v. Central Locating Serv., 228 A.D.2d 920, 922 (N.Y. 1996) (owner of the conduit housing underground utility was irrelevant; because plaintiff operated the underground facility to interconnect its public safety services, he was the operator under the NY One Call Notification Statute); Report of the Administrative Law Judge, Office of Administrative Hearings, Department of Public Safety, State Of Minnesota, Re: Proposed Amendments to Rules Governing the Minnesota Excavation Notification System, 25-31 (3-31-2005) (private homeowners and tenants were not operators, only utility companies and municipalities were operators under M.S.A. § 216 D.01).

The South Dakota Supreme Court has held that when interpreting South Dakota statutes, words and phrases must be given their plain meaning and effect. Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611. "Operators" are the people who run the underground facilities not the people who own them. That is the plain meaning under SDCL 49-7A. It is clear that if the Legislature had intended that "owners" be "operators" under SDCL 49-7A, they would have included relevant language in that definition. Even our sister states that do have the aforementioned statutory language do not require private homeowners to mark their utilities.

The intent of these statutes must be determined from examining SDCL 49-7A as a whole. Sanford, 2005 S.D. 34, ¶ 13, 694 N.W.2d at 287 (citing State v. I-90 Truck Haven Service, Inc., 2003 S.D. 51, ¶ 3, 662 N.W.2d 288, 290 (citing Martinmaas, 2000 S.D. 85, ¶ 49, 612 N.W.2d at 611)). SDCL §§ 49-7A-12 and 49-7A-13 discuss what is to be done when there is an inability to locate or damage to the underground facility. These two statutes both provide that the excavator "shall immediately notify the operator of the facility, or if unknown, the one-call notification center" (SDCL 49-7A-12) and "shall promptly notify the operator, or, if unknown, the one-call notification center." (SDCL 49-7A-13). If the real property owner were the operator as defined by SDCL 49-7A-1(7), he or she would not be "unknown" for purposes of who the excavator shall notify. (The Register of Deeds would be able to provide ownership information.) Therefore, it is clear that the intent of the Legislature was to make the facility operator and not the real property owner the party responsible for marking underground facilities.

Additionally, SDCL 49-7A-15 sets up an exception as to whom the statute can be enforced against. It is clear from the language that the Legislature was not requiring private landowners to register their personal underground facilities. Logic dictates that the Legislature also did not intend for private homeowners to register their service lines that come from public utilities located in the public right-of-way. Most landowners simply lack the skill or experience to do so, a fact presumably known to the Legislature.

According to the South Dakota Supreme Court, if the result obtained from an interpretation of a statute is unpractical or absurd, then that interpretation is clearly erroneous. See Martinmaas, 2000 S.D. 85, ¶ 49, 612 N.W.2d at 611; Matter of Estate of Gossman, 1996 S.D. 124, ¶ 6, 555 N.W.2d 102, 104; Nelson v. South Dakota State Bd. Of Dentistry, 464 N.W.2d 621, 624 (S.D. 1991). It is clear that the Legislature did not intend for every private homeowner to be considered operators under SDCL 49-7A, for such would surely be "unpractical." Further support for this proposition flows from statute and rule.

SDCL 49-7A-2 provides in part:

All operators are subject to this chapter and the rules promulgated thereto. Any operator who fails to become a member of the one-call notification center or who fails to submit the locations of the operator's underground facilities to the center, as required by this chapter and rules of the board, is subject to applicable penalties under §§ 49-7A-18 and 49-7A-19 and is subject to civil liability for any damages caused by noncompliance with this chapter.

ARSD 20:25:03:10 provides in part:

Each operator required by SDCL 49-7A-2 to join the one-call system must respond to notification of excavation as required by SDCL chapter 49-7A or by the response intervals listed... If an excavation is being made in a time of emergency, as defined in SDCL 49-7A-1, each operator shall respond as follows: (1) The operator shall respond as soon as possible but not longer than two hours from the notification time during the business day and not longer than four hours from the notification time outside of the business day or by the start time on the ticket, whichever is later.

Including private homeowners in the definition of "operators" creates an unreasonable and absurd result with regard to these provisions. If private homeowners were considered operators under SDCL 49-7A, then every homeowner with underground utility lines under his/her yard would be forced to become a member of the System. The owner would also have to report the location of all buried utilities to the notification center. In an emergency, homeowners may have as little as two hours to mark their lines. Since this definition would create an unreasonable and absurd result, it is clearly not the Legislature's intent. See Martinmaas, 2000 S.D. 85, ¶ 49, 612 N.W.2d at 611. The Legislature did not intend to place this kind of burden on private homeowners and tenants. The Legislature intended to put this burden on the companies and municipalities that were already running these utilities. Furthermore, it is overly burdensome and unreasonable to force private homeowners to be part of this System.

In addition, SDCL 49-7A-3 provides:

The one-call notification center shall be governed by an eleven member board who shall serve without pay. The board shall consist of one member representing telecommunication companies offering local exchange service to less than fifty thousand subscribers; one member representing telecommunication companies offering local exchange service to fifty thousand or more subscribers; one member representing rural water systems; one member representing rural electric cooperatives; one member representing investor-owned electric utilities; one member representing investor-owned natural gas utilities; one member representing community antenna television systems; one member representing municipalities; one member representing underground interstate carriers of gas or petroleum; and two members representing contractors who perform excavation services. The board shall be appointed by the Governor and shall serve staggered three-year terms.

This language indicates that the System was designed to prevent excavators from hitting buried utility lines. The board has enforcement power over both excavators and operators. The board that enforces the marking of the underground facilities is made up of the groups which the board has disciplinary power over: utility companies, municipalities, and excavators. The board does not contain any private homeowners. This is because the Legislature only intended SDCL 49-7A to apply to excavators, utility companies, and municipalities, exactly the people mandated to enforce the statute. Therefore, private homeowners are not considered operators under SDCL 49-7A.

In sum, the term operator under SDCL 49-7A-1(7) means the person who actually runs or operates the underground facility. The people who run/operate the underground facility are utility companies and municipalities. Private homeowners are not operators. These homeowners may own the underground facility lines; however, they are merely customers of the operators. If property owners were included in the definition of "operators," underground facilities would go unmarked because these property owners likely do not know how to locate and mark these lines. Unlocated lines would lead to more broken lines by excavators. The South Dakota Supreme Court held that "it is the cardinal rule of interpretation that a statute must be construed with reference to the objects intended to be accomplished by it." Dorman v. Crooks State Bank, 225 N.W. 661, 665 (S.D. 1929). Based on this precedent, it is appropriate to determine the reason behind SDCL 49-7A. What was being accomplished by the passage of SDCL 49-7A was the protection of South Dakotans' safety and property by preventing underground facilities from being struck by excavators. Since incorporating property owners into the definition of the term "operators" would lead to more underground facilities being struck by excavators, that interpretation of SDCL 49-7A is erroneous. It was the Legislature's intent that the term operators means utility companies and municipalities or any person who operates (not just uses) an underground facility. Excavators are also not operators under SDCL 49-7A. Only operators are required to mark the underground facilities for the excavators. Therefore, SDCL 49-7A-8 requires that facility operators mark both the underground facilities in the public right-of-way, and any service laterals which extend from their facilities on to private property (which are in the excavation zone).

IN RE QUESTIONS 2 and 3:

Because the only difference between these two questions is that one deals with water lines and the other deals with sewer lines, and this distinction does not change the answer, these questions will be dealt with jointly.

As noted above, SDCL 49-7A-15 is an exception to the rules laid out in SDCL 49-7A. This statute says that landowners whose private underground facilities do not extend past their property lines are exempt from 49-7A enforcement. The Legislature, when enacting 49-7A-15, was specifying that private landowners would not have to become part of the System. However, the relevant language here is "on his own land which do not extend beyond the boundary of the private property." This language signifies that if the underground facilities extend to a public right-of-way or just off the private property, then the underground facilities are subject to the provisions of SDCL 49-7A. For example, if private service laterals extend off the property to a water main under the public right-of-way, the SDCL 49-7A-15 exception does not apply. Since both the water and sewer lines in these two questions are not wholly contained within private property and the water and sewage companies are utility companies and not private landowners, the exception in SDCL 49-7A-15 does not apply.

The two questions ask how close to personal residences do underground facilities need to be marked by their operators. The answer to both of these questions can be found in SDCL 49-7A-8. The pertinent part of that statute says "An operator shall, upon receipt of the notice, advise the excavator of the location of underground facilities in the proposed excavation area." The purpose of SDCL 49-7A and SDCL 49-7A-8 gives the answer. The purpose of 49-7A is to protect the public's property and safety by preventing underground facilities from being hit by excavators. SDCL 49-7A-8 says operators must mark all the underground facilities within the proposed excavation area. Therefore, operators must mark all utilities that they operate within the proposed excavation area. This rule applies regardless of whether private property is included in the excavation area, and regardless of how close to private residences the proposed excavation area is located.

Furthermore, if the excavators require the marking of lines to extend a reasonable distance past the actual dig site, in order to better understand underground facilities locations, SDCL 49-7A requires operators to do so. In Question 1 it was determined that private homeowners are not operators under SDCL 49-7A. This means that if the municipalities and utility companies were not responsible for marking all the underground facilities throughout the entire proposed excavation site, then these lines would not be marked. Having unmarked underground facilities would lead to an increase in accidental damage to those underground facilities. This result would go against the objectives intended to be accomplished by SDCL 49-7A, so it cannot be the correct interpretation of that statute. See Dorman, 225 N.W. at 665.

In sum, the determination of how much of the underground facility needs to be located and marked is not determined by meters or first terminations. All of the underground facility which is located within the proposed excavation site must be located and marked by the operator which operates that underground facility.

Respectfully submitted,

Lawrence E. Long
Attorney General

LEL/MND/dh