SDCL 46-5-6.4 lets the Department of Agriculture take water samples from wells to validate analyses submitted with irrigation permit applications. Does the Department's validation power continue after a permit has been approved or a water right has been acquired? And who pays for the validation sampling?

Plain-English summary

The South Dakota Department of Agriculture's Division of Conservation handles irrigation permits. As part of the application, the applicant submits water sample analyses to show that the well's water is compatible with the soil where it will be used for irrigation. SDCL 46-5-6.4 authorizes the Department to take its own water samples to validate the applicant's submitted analyses.

The Department had been using this authority only for pending applications. But some applications had been conditionally approved with sample analyses that the Department now had reason to doubt. The submitted samples appeared higher quality than would be expected from the rock formations the applicants claimed to have sampled. Secretary Roberts asked AG Meierhenry whether the Department could validate samples after the permit had been conditionally approved, what happens if the permit had been unconditionally approved, and what happens if a water right had been acquired based on the permit.

Meierhenry's five-question answer worked through the authority and its limits.

Question 1 (is the validation authority ongoing?): Yes. SDCL 46-5-6.4 is not limited to pre-permit validation. The Department may validate during the application process or subsequently.

Question 2 (any other statute authorizing post-permit action?): No specific statute, but administrative agencies have inherent power to correct errors caused by fraud, mistake, or inadvertence, as long as the power is exercised within a reasonable time. Schultz v. Montgomery Planning Board (Maryland), Anchor Casualty Company v. Bongards Co-op Creamery Association (Minnesota), and Ruvoldt v. Nolan (New Jersey) all support this inherent-powers principle. The Department's authority to validate water samples is logically included in that inherent power.

Question 3 (any difference if a water right has been obtained?): The acquisition of a water right does not cut off the Department's power, but it does affect what the Department can do with the validation results. Modifying or withdrawing a permit after a water right has been acquired requires diligence and reasonable time. Where the error is the applicant's (fraud, failure to follow regulations), the modification can happen even after a water right exists. Where the error is the Department's own (clerical, sample testing), the reasonable time is shorter and is generally measured by the time prior to water right acquisition.

Question 4 (any difference between conditional and unconditional approval?): No. The validation power applies the same way regardless of conditional or unconditional approval status.

Question 5 (who pays for the validation sampling?): The Department. No statute authorizes charging the applicant for validation sampling, so the cost falls on the Division of Conservation.

The opinion read SDCL 46-5-6.4 as granting ongoing validation power. It also cited decisions recognizing an agency's inherent power to correct errors caused by fraud, mistake, or inadvertence within a reasonable time.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. SDCL chapter 46-5 governing irrigation permits may have been amended since 1982, and the state's water-resource functions may have been reorganized. Modern questions about water sample validation, permit modification, and water-right impacts should be verified against current SDCL chapter 46-5 and the current agency's regulations.

What the opinion meant at the time

For the Division of Conservation, the opinion permitted validation after conditional approval. It also discussed when a permit granted in error could be modified or withdrawn, taking account of the source of the error, timing, and the permit holder's justifiable reliance.

For irrigation permit applicants, the submitted sample was not necessarily a one-time check. The Department could validate it during the application process or later, even after a water right was acquired. The opinion specifically discussed fraud and failure to follow sample-collection regulations as possible sources of error.

For water-right holders, acquisition of the right did not end the Department's validation power. Any permit modification or withdrawal after an error still had to account for diligence, reasonable time, the source of the error, and justifiable reliance.

For the Department's budget, the opinion confirmed that validation sampling was a Department cost. Building validation activity into the annual budget made sense.

Common questions

Q: What is soil-water compatibility?
A: The opinion refers to water-sample analyses submitted with irrigation permit applications to assess soil-water compatibility. It does not define the technical criteria for compatibility.

Q: Why would someone submit an invalid sample?
A: The Department reported invalid samples caused by improper sampling techniques. Petitions also questioned samples whose reported water quality seemed better than the source formations could produce. The opinion did not establish why those particular samples were inaccurate.

Q: What did the Department do once validation showed a problem?
A: The opinion did not describe an actual validation result or remedy. It said an erroneously granted permit could be modified or withdrawn within a reasonable time, subject to limits that depend on the source of the error and justifiable reliance.

Q: How long is a "reasonable time" to correct an error?
A: Anchor Casualty said an agency should have at least as long as a party's appeal period to correct its own error. For Department errors involving irrigation permits, Meierhenry identified the period before acquisition of a water right as a reliable yardstick. He said a reasonable time depends on the source of the error and the permit holder's justifiable reliance.

Q: Could the Department charge the applicant if the validation found fraud?
A: The opinion says no, no statute authorizes that. A subsequent statutory or regulatory change could shift the cost; until then, validation sampling was the Department's expense.

Q: What is a "water right" versus a "permit"?
A: The opinion treated them as different. It described an irrigation permit as the state's permission to do an otherwise prohibited act, not a constitutionally vested property right. A water right acquired on the permit is the firmer interest, which is why the opinion said modifying a permit after a water right has been acquired requires more diligence and a shorter reasonable-time window when the Department itself was the source of the error.

Background and statutory framework

South Dakota water law combines administrative permitting (the Department of Agriculture's Division of Conservation handled irrigation permits in 1982) with a more enduring water-right interest. As the opinion notes, a permit is "merely the state's permission to do an otherwise prohibited act and is not a constitutionally vested property right," while a water right acquired on that permit is treated as a firmer interest, which is why the opinion handled post-water-right modification more carefully.

The Department used water-sample analyses submitted with irrigation applications. Secretary Roberts asked whether it could validate an applicant's sample after a permit was conditionally approved because petitions challenged the reported water quality.

Meierhenry cited decisions recognizing inherent agency power to correct errors caused by fraud, mistake, or inadvertence, provided the power is exercised within a reasonable time. He explained that the reasonable period depends on the source of the error and justifiable reliance.

For Department errors, Meierhenry said the reasonable time to correct the error would be shorter and identified the period before acquisition of a water right as a reliable yardstick. He said applicant fraud or failure to follow sample-collection rules could permit modification or withdrawal even after a water right was obtained.

Citations and references

Statutes:

• SDCL 46-5-6.4 (water sample validation authority)

Cases:

• Schultz v. Montgomery Planning Board, 185 A.2d 502 (Md. 1962)
• Anchor Casualty Company v. Bongards Co-op Creamery Association, 91 N.W.2d 122 (Minn. 1958)
• Ruvoldt v. Nolan, 305 A.2d 434 (N.J. 1973)
• Donovan v. Delaware Water and Air Resources Commission, 358 A.2d 725 (Del. 1976)
• Shady Acres Nursing Home, Inc. v. Canary, 316 N.E.2d 481 (Ohio 1973)
• B & H Investments v. City of Coralville, 209 N.W.2d 115 (Iowa 1973)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=880

Original opinion text

Validation of Water Samples Submitted for Soil-Water Compatibility

Dear Secretary Roberts:

You have requested an official opinion from this office based upon the following factual situation:

FACTS:

SDCL 46-5-6.4 authorizes the Department of Agriculture to take water samples from wells to validate water sample analyses taken at the time of applying for an irrigation permit.

This authorization has become increasingly important as the Division of Conservation of the Department of Agriculture has obtained many samples taken by applicants which have been proved to be invalid because of improper sampling techniques.

To date, the Department has only used this authorization in validating pending permit applications. However, the Department recently received several petitions which indicate that validation of the water sample taken for a permit, which has already been conditionally approved, is in order. No water right has as yet been granted on this permit. (The petitions allege the quality of the water samples submitted is far better than could possibly be obtained from the particular formations from which the water was allegedly taken.)

Based on the above factual situation, you have asked the following questions:

QUESTIONS:

1. Does SDCL 46-5-6.4 authorize the Department to validate the water sample used to obtain this irrigation permit?

2. Is there any other statute authorizing the Department to proceed in this fashion?

3. Would it make any difference if a water right, based on this irrigation permit, had been obtained?

4. What if the irrigation permit had been unconditionally approved, instead of conditionally approved as in this instance?

5. Will the Division of Conservation have to pay for obtaining such a sample, or can the costs be billed to the applicant?

IN RE QUESTION NO. 1:

SDCL 46-5-6.4 provides:

The department of agriculture shall have the power to take water samples from wells and surface water bodies to be used for irrigation purposes for the purpose of validating water sample analyses taken at the time of application.

In my opinion, this is an ongoing power given the Department of Agriculture, the reason and the purpose being that the Department may during the application process or subsequently need to validate the water sample analyses that were submitted to the Department at the time of application.

IN RE QUESTION NO. 2:

I am aware of no other statute that expressly authorizes the Department to proceed in this fashion. Many courts, however, hold that an administrative agency has inherent power to correct errors made due to fraud, mistake or inadvertence, so long as such power is exercised within a reasonable time, Schultz v. Montgomery Planning Board, 185 A.2d 502 (Maryland 1962); Anchor Casualty Company v. Bongards Co-op Creamery Association, 91 N.W.2d 122 (Minn. 1958); Ruvoldt v. Nolan, 305 A.2d 434 (N.J. 1973). Logically included in such inherent power would be the power to validate water samples submitted with an application for an irrigation permit, even after the permit has been granted. Of course, the sooner the sample is validated and any error corrected, the more likely it is that it will be within a reasonable time.

IN RE QUESTION NO. 3:

The acquisition of a water right would not cut off the power of the Department to check the validity of a water sample submitted with the application for an irrigation permit. There are limits, however, on the power to modify or withdraw permits which the validations indicate were erroneously granted. An agency's power to correct errors must be exercised with diligence and within a reasonable time. The length of time which is reasonable will depend on the source of the error and the extent of justifiable reliance by the permit holder, Ruvoldt v. Nolan, supra. Where the source of the error is fraud by the applicant or failure to follow regulations governing sample collection, an irrigation permit may be modified or withdrawn even though a water right has been obtained.

Where the Department is the source of the error, such as a clerical or sample testing error, a reasonable time to correct the error would be shorter. In Anchor Casualty Company v. Bongards Co-op Creamery Association, supra, the court held that a reasonable time for an agency to correct its own error should be at least as long as the time within which a party could appeal the decision. In the context of a reasonable time for correcting errors caused by the Department in granting irrigation permits, a reliable yardstick would be the time prior to the acquisition of a water right. Although a permit is merely the state's permission to do an otherwise prohibited act and is not a constitutionally vested property right, Donovan v. Delaware Water and Air Resources Commission, 358 A.2d 725 (Del. 1976); Shady Acres Nursing Home, Inc. v. Canary, 316 N.E.2d 481 (Ohio 1973), it has been held in at least one case that expenditures in justifiable reliance on a duly issued permit may restrict revocation of the permit in some circumstances, B & H Investments v. City of Coralville, 209 N.W.2d 115 (Iowa 1973). By modifying or withdrawing the irrigation permit before a water right is obtained, there is less likelihood of the applicant making expenditures in reliance on an erroneously granted permit.

IN RE QUESTION NO. 4:

The power to validate the water sample is unaffected regardless of whether the irrigation permit was conditionally or unconditionally approved.

IN RE QUESTION NO. 5:

It is my opinion that the Division of Conservation bears the cost of validating soil-water compatibility samples as no express authority exists to charge the applicant.

Respectfully submitted,

Mark V. Meierhenry

Attorney General