Does a sanitary sewer and water district have to record its survey map (plat) with the Register of Deeds, what certificates does the Register need to accept it, and does the surrounding township board have to certify the plat's accuracy?

Plain-English summary

In 1966 a South Dakota county or sanitary district official asked the Attorney General to clarify the plat-recording requirements for newly forming sanitary sewer and water districts outside city limits. The statute (SDC 45.38, as amended by Chapter 144 of the 1964 Session Laws and Chapter 146 of the 1966 Session Laws) required an "accurate survey and map" of the proposed district's territory, verified by the surveyor's certificate, as part of the application to incorporate. In practical terms that survey and map looked a lot like a plat. The questions were: did the plat have to be recorded at the Register of Deeds, what certificates did the Register need to see before accepting it, and did the local township board have to vouch for the plat's accuracy?

The AG worked through each question by interlocking the sanitary-district statutes with the general platting statutes.

On mandatory recording, the AG gave no express yes-or-no answer. It quoted SDC 45.2804's certification and acknowledgment requirements and advised strict compliance. It also quoted the county-commissioner submission rule for platting land outside municipalities and the director of equalization's certificate requirement for plats covered by those provisions. The second question expressly contemplated recording either because a law required it or because the district chose to record.

On the certificates the Register of Deeds had to see, the answer flowed from those same statutes. Strict compliance was required. The Register could not record a plat that lacked the surveyor's certificate, the proprietor's certificate and acknowledgment, the county treasurer's tax certificate, or the county director of equalization's receipt certificate. Any of those missing certificates was a basis to refuse the plat.

On township certification, the answer was no. The township board of supervisors had no statutory role in certifying plat accuracy. The accuracy certification was the surveyor's function under SDC 1960 Supp. 45.3802. The township, even if some or all of the district lay within its boundaries, did not have to sign off.

The AG also pointed back to a 1963-64 opinion (1963-64 AGR 328) addressed to the State Health Officer, which discussed sanitary districts serving incorporated areas, unincorporated areas, and industry through joint waste-collection and treatment facilities. Section 10 of Chapter 144 of the 1964 Session Laws validated earlier proceedings that complied with SDC 45.38 as it stood when they were taken or would have complied with its amended version.

Currency note

This opinion was issued in 1966. 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. The sanitary district statutes have been substantially restructured and renumbered since 1966, and the platting statutes have likewise been recodified. Modern Register of Deeds requirements, county commissioner review procedures, and any environmental review overlays differ from the 1966 framework; check the current SDCL provisions before relying on any step described here.

What the opinion meant at the time

For organizers of a sanitary district, the opinion identifies the required survey and map and the platting provisions to check before presenting a plat for recording. It does not decide that every district must record its map.

For a Register of Deeds, the quoted statutes state that a plat covered by them cannot be recorded without the required certificates and acknowledgments. The opinion advises strict compliance with those provisions.

For township boards of supervisors, the opinion was a relief. They did not need to take on responsibility for the surveyor's accuracy. The surveyor's professional certification carried that burden.

For sanitary district organizers, the opinion points to a prior 1963-64 opinion about joint collection and treatment facilities and to the 1964 validation provision. It also says that the earlier opinion "does not directly answer your questions," so this opinion does not establish the district's substantive geographic scope.

Common questions

Q: Why did the AG cite the platting statutes (45.2804 to 45.2806-2) instead of the sanitary-district-specific provisions?
A: The opinion quotes the district survey-and-map requirement, then cites the general platting provisions relevant to a plat submitted for recording. It does not expressly decide that recording is mandatory.

Q: Did the proprietor's certification create problems when the "proprietor" was a forming-district group?
A: The opinion did not address this. SDC 45.2804 required the certification by the proprietor or "his duly authorized agent," but the opinion did not work through how that applied to a forming district whose officers had not yet been elected.

Q: What if the county director of equalization refused to issue the receipt?
A: The opinion did not address that. It quoted SDC 1960 Supp. 45.2806-2, which barred recording the plats specified in that section unless they bore the director of equalization's certificate that he had received a copy.

Q: What did the 1963-64 AGR 328 opinion say about sanitary-district scope?
A: The 1966 opinion quotes the earlier opinion as saying that the 1964 amendments provided for a sewage district able to construct and operate joint collection and treatment facilities. It then says that the earlier opinion "does not directly answer your questions." The 1966 opinion therefore does not itself confirm that a district may include municipal territory or say what happens to an existing municipal sewer system.

Q: Did Section 10 of Chapter 144 (1964) save prior proceedings that did not comply with the amended statute?
A: The quoted provision validated prior proceedings that complied with SDC 45.38 as it stood when they were taken or would have complied with its amended version.

Q: Did the opinion address the timing of officer elections under SDC 1960 Supp. 45.3812 and 45.3813?
A: Only obliquely. The opinion described the factual posture (district incorporated by County Commissioners' declaration but officers not yet elected) as the framework for the recording questions. The election timing itself was outside the scope.

Background and statutory framework

South Dakota's sanitary sewer and water district statutes were a mid-twentieth-century response to the need for rural and suburban waste management infrastructure that fell outside municipal corporate limits. Many rural communities, agricultural processors, and unincorporated developments needed sewer and water service that small townships could not provide. The legislature created the special-district vehicle as a financing and governance mechanism.

The opinion discusses the 1964 and 1966 amendments to the sanitary-district statutes and points to the earlier 1963-64 opinion about joint collection and treatment facilities. It says that earlier opinion "does not directly answer your questions." The procedural side of district formation described here was a multi-step process: petitioning by interested property owners; survey and mapping; application for incorporation to the county auditor; county commissioner review; declaration of incorporation; officer elections; bond issuance and contracting.

The opinion quotes the certificate and acknowledgment rules for a plat offered for recording. It does not say the district must record every survey and map prepared for incorporation.

The county director of equalization's role under 45.2806-2 was tax-administrative: the director needed to know about new plats to update assessment rolls and ensure that newly platted land was correctly identified for property tax purposes. The receipt certificate was the director's acknowledgment that the assessment side had the information.

The 1964 Session Laws' Section 10 was a standard validation provision, common when legislatures amended organic statutes for special districts. The legislature did not want to disturb districts that had been organized correctly under prior law just because the rules had changed.

Citations and references

Statutes:

• SDC 1960 Supp. 45.38 (sanitary sewer and water districts outside municipalities), as amended by Chapter 144 of the 1964 Session Laws and Chapter 146 of the 1966 Session Laws
• SDC 1960 Supp. 45.3802 (survey and map; surveyor's certificate)
• SDC 1960 Supp. 45.3804 (application for incorporation), as amended
• SDC 1960 Supp. 45.3805 (filing with county auditor), as amended
• SDC 1960 Supp. 45.3811 (county commissioners' incorporation declaration)
• SDC 1960 Supp. 45.3812 and 45.3813 (elections of trustees and officers), as amended
• SDC 1960 Supp. 45.2806-1 (platting lands outside municipalities)
• SDC 1960 Supp. 45.2806-2 (county director of equalization receipt certificate)
• SDC 45.2804 (plat certification, acknowledgment, treasurer's certificate)
• Section 10 of Chapter 144 of the 1964 Session Laws (validation of prior proceedings)

Prior AG opinions:

• 1963-64 AGR 328 (May 12, 1964 opinion to G.J. Van Heuvelen, State Health Officer; sanitary district may include mixed territory)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1755

Original opinion text

Sanitary Districts. Sanitary Sewer and Water Districts outside of corporate limits.

In your letter relating to the above captioned matter you present the following factual situation and questions:

'"SDC 1960 Supp. 45.38, as amended by Chap. 144 of the 1964 Session Laws, and by Chap. 146 of the 1966 Session Laws, provides for organization of sewer and water districts without the boundary of any incorporated City or Town.

"SDC 1960 Supp. 45.3802 provides for an accurate survey and map to be made of such district which survey and map is displayed for examination prior to application for incorporation pursuant to SDC 1960 Supp. 45.3804, as amended. In a practical sense, it would seem that such survey and map would amount to a plat. It appears that such survey and map should be filed with the Co. Auditor when application for incorporation is made pursuant to SDC 1960 Supp. 45.3805 as amended.

"In regards to this particular request, assume that a sanitary sewer and water district has been declared incorporated by the Board of County Commissioners pursuant to SDC, 1960 Supp. 45.3811, but that as yet the officers and trustees of such district have not been elected as required by SDC 1960 Supp. 45.3812, and

45.3813 as amended."

Your specific questions read as follows:

"1. What requirements, if any, exist in regards to any mandatory recording of such survey and map (plat) in the Office of the Register of Deeds?

"2. If the survey and map (plat) are recorded in the Office of the Register of Deeds, whether such recording be in accordance with any law requiring same or if it be according to the wishes of the concerned district, what certificates and acknowledgments must be contained thereon before the Register of Deeds can accept such instrument for recording?

"3. If such district includes territory contained in an unincorporated town, located within an organized civil township, must the township board of supervisors certify as to the accuracy of such map and survey (plat)?"

See Chapter 144 of the 1964 Session Laws of this state, amended SDC Chapter 45.38 and Chapter 146 of the 1966 Session Laws relating to sanitary and water districts outside municipalities.

Answering Question No. 1, it is provided in SDC 1960 Supp. 45.3802 that "persons making application for the organization of a water district shall first cause an accurate survey and map to be made of the territory intended to be embraced within the limits of such sanitary district, showing the boundaries and area thereof, and the accuracy thereof shall be verified by a certificate of the surveyor."

SDC 1960 Supp. 45.2806-2 relating to plats provides that plats specified in Section SDC 45.2806 and SDC 45.2806-1 "shall not be entitled to record or be recorded unless the same bears a copy of the certificate of the County Director of Equalization that he has received a copy of such plat."

SDC 45.2804 relating to plats reads as follows:

"Certificate and acknowledgment. Every plat provided for in this chapter shall be certified by the surveyor as being in all respects true and correct and by the proprietor, or his duly authorized agent, as having been made at his request and under his direction for the purposes indicated therein, that he is the absolute and unqualified owner of all the land included therein, and that the same is free from any incumbrance. Such certificates shall be acknowledged before some officer authorized to take the acknowledgment of deeds and, with the certificate of such acknowledgment, shall be indorsed on or attached to the plat and be recorded as a part thereof in the office of the register of deeds of the proper county.

"There shall also be indorsed thereon or attached thereto the certificate of the county treasurer that all taxes which are liens upon any land included in such plat, as shown by the records of his office have been fully paid.

"No such plat shall be recorded until all the provisions of this section have been fully complied with."

In answering your specific Question No. 1, you are advised that the provisions of the above quoted statute should be strictly complied with.

I draw your attention to SDC 1960 Supp. 45.2806-1 relating to Platting lands outside municipalities, which provides:

"Whenever any person wishes to plat any lands lying outside the boundaries of a municipality which are not included in an addition or subdivision thereof as specified in section 45.2806, he shall be governed by and proceed in accordance with the provisions of chapter 44.28, except that before recording his plat in accordance with section 45.2806, he shall submit the same only to the board of county commissioners of the county wherein such lands are situated."

Your specific Question No. 2 is answered by the provision of the statute above cited and strict compliance should be made with this statute.

I draw your attention to SDC 1960 Supp. 45.2806-2 which provides:

"Plats specified in sections 45.2806 and 45.2806-1 shall not be entitled to record or be recorded unless the same bears a copy of the certificate of the county director of equalization that he has received a copy of such plat."

Your specific Question No. 3 is answered in the NEGATIVE.

Under date of May 12, 1964 this office issued an official opinion to G. J. Van Heuvelen, M. D., State Health Officer and Chairman, State Committee on Water Pollution, Pierre, South Dakota, (See 1963-64 AGR 328) which among other interrogatories, the following question was asked.

"Can incorporated areas, unincorporated areas, and industry be incorporated into a sanitary district for the construction and operation of joint waste collection and treatment facilities?"

This question was answered as follows:

"The recent amendments of Chapter 45.38 which were passed by the 1964 Legislature provides for the organization and financing of a sewage district which would be able to construct and operate joint collection and treatment facilities." (See Chapter 144, 1964 Session Laws).

Although the above quoted opinion does not directly answer your questions, I suggest that you carefully read this opinion as it may be helpful in your study of the laws of this state relating to sanitary sewer districts outside municipalities.

I draw your attention to Section 10 of Chapter 144 of the 1964 Session Laws of South Dakota which provides:

"That SDC 1960 Supp. 45.38 be, and the same is hereby, amended by adding thereto a new section reading as follows:

"All proceedings taken prior to the effective date of this act for the incorporation of sanitary districts, and all actions and proceedings taken by sanitary districts prior to such effective date, which were in accordance with the provisions of SDC 45.38 at the time when they were taken or would have conformed to the provisions of SDC 45.38 as herein amended, if this act had been in effect, are hereby legalized and validated; provided that any proceeding commenced prior to the effective date of this act shall be continued in accordance with the provisions of SDC 45.38 as herein amended."