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 recording, the answer was yes. SDC 45.2804 governed plats generally, requiring the surveyor's certificate of accuracy, the proprietor's (owner's) certification that the plat was made at their direction, attestation of the proprietor's clear title, acknowledgments before an officer authorized to take deed acknowledgments, and the county treasurer's certificate that all tax liens on the platted land had been fully paid. SDC 45.2806-1 governed platting lands outside municipalities, which routed the plat through the county commissioners before recording. SDC 45.2806-2 added that the county director of equalization had to certify receipt of a copy of the plat before the Register of Deeds could record it. All those provisions applied to a sanitary-district plat that fit the platting framework.
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 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 had confirmed that the 1964 amendments to SDC 45.38 let sanitary districts include incorporated areas, unincorporated areas, and industry within a single joint waste-collection and treatment facility. And Section 10 of Chapter 144 of the 1964 Session Laws had retroactively validated prior sanitary-district proceedings that had complied with either the pre-1964 SDC 45.38 or the 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 since 1966, including renumbering from SDC to modern SDCL Title 34A (Environmental Protection) chapter 5 (sanitary districts) and related chapters. The platting statutes are now in SDCL Title 11 (Planning, Zoning, and Housing Programs). Modern Register of Deeds requirements, county commissioner review procedures, and environmental review overlays differ from the 1966 framework.
What the opinion meant at the time
For newly forming sanitary districts in 1966, the opinion was a procedural checklist. The required path was: hire a surveyor; produce an accurate survey and map; get the surveyor's accuracy certificate; have the proprietor (the district's organizers acting through their officers, or the property owners) certify and acknowledge the plat; obtain the county treasurer's tax-clear certificate; get the county director of equalization's receipt; submit to the county commissioners; record at the Register of Deeds.
For Registers of Deeds, the opinion was a refusal-grounds checklist. Any plat presented without all the required certificates could be refused. The Register did not need to second-guess the substance, but did need to verify each certificate was present.
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 confirmed that the prior 1964 amendments enabled flexible district composition (mixed incorporated/unincorporated/industrial areas) and that older proceedings under the pre-1964 statute had been validated. The procedural map was clear; the substantive scope was broad.
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: SDC 45.3802 required the survey and map but did not detail the recording procedure. The AG inferred that the general platting statutes filled the recording-procedure gap, since the survey-and-map functionally was a plat. That filled the procedural details without inventing new rules.
Q: Did the proprietor's certification create problems when the "proprietor" was a forming-district group?
A: The opinion did not address this. In practice, the petitioning property owners or their authorized agent would have signed and acknowledged the plat. After incorporation, the district's officers (once elected under 45.3812 and 45.3813) would have had standing to certify district-owned property.
Q: What if the county director of equalization refused to issue the receipt?
A: The opinion did not address that. As a matter of administrative law, the director's duty to issue the receipt was likely ministerial once the director had received the copy. A district denied a receipt would have a mandamus remedy.
Q: Did the 1963-64 AGR 328 opinion mean a district could include municipal territory?
A: Yes. That opinion confirmed that the 1964 amendments authorized sanitary districts to include "incorporated areas, unincorporated areas, and industry" within a single district for joint waste-collection and treatment purposes. The municipal territory's existing sewer system would have been folded into or coordinated with the district's facilities.
Q: Did Section 10 of Chapter 144 (1964) save prior proceedings that did not comply with the amended statute?
A: Yes, but only if those proceedings had complied with either the pre-1964 SDC 45.38 or would have complied with the amended version. Wholly noncompliant prior proceedings were not retroactively validated.
Q: Did the opinion address the timing of officer elections under SDC 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 1964 amendments (Chapter 144) and the 1966 amendments (Chapter 146) had refined the statute, expanding district scope to include mixed incorporated and unincorporated territory and adding flexibility in financing. The procedural side of district formation, however, 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 plat recording requirement was an early-stage formality but a meaningful one. A recorded plat put the district's boundaries on the public record, established the territorial scope for tax-assessment purposes, and gave title companies and lenders a reliable reference document. The cross-references to SDC 45.2804 to 45.2806-2 brought the recording into the same regime as municipal-adjacent platting, which had its own well-developed certificate framework.
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 Ch. 144 (1964) and Ch. 146 (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
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."