SDCL 46-5-6.4 lets the Department of Agriculture take water samples from wells to validate water analyses submitted with irrigation permit applications. Some samples submitted by applicants turn out to be invalid (improper sampling, fraud). Does the Department's validation power continue after the irrigation permit has been conditionally or unconditionally approved, or after a water right based on the permit 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 v. Bongards (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's main innovation is the inherent-powers argument. SDCL 46-5-6.4 alone might be read narrowly (only for pending applications), but combined with the general administrative-law principle of error correction, the authority stretches to post-permit and even post-water-right situations.
Currency note
This opinion was issued during AG Mark Meierhenry's tenure (1979-1987). 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 has been amended multiple times, and the Department of Agriculture's water resource functions have been reorganized (now under the Department of Agriculture and Natural Resources). Modern questions about water sample validation, permit modification, and water-right impacts should be verified against current SDCL chapter 46-5 and any applicable regulations.
What the opinion meant at the time
For the Division of Conservation, the opinion authorized aggressive enforcement of sample integrity. The Division could validate suspect samples even on permits already conditionally approved, and could in principle modify permits based on what validation revealed.
For irrigation permit applicants, the opinion was a warning that submitted samples were not a one-time check. The Department could come back later (during the application, after approval, even after a water right was acquired) and validate. Fraudulent or improperly collected samples could come back to bite.
For water-rights holders, the opinion preserved their stake in the validity of their permits. The Department's power to modify permits based on later validation was real but constrained by reasonable-time and justifiable-reliance principles. Where the holder was the source of the error, the protection was thinner. Where the Department was at fault, the protection was firmer.
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 match between the water's mineral and salt content and the soil's tolerance for those minerals. Some waters are too salty or too mineral-laden to irrigate certain soils without degrading them over time. The compatibility analysis is a key part of irrigation permit review.
Q: Why would someone submit an invalid sample?
A: Innocently: improper sampling technique (not flushing the well, contamination of the sample container). Less innocently: deliberately sampling from a different, cleaner source to make the well look better than it is.
Q: What did the Department do once validation showed a problem?
A: The opinion did not detail the remedy process. As a general matter, the Department could modify the permit (impose new conditions), withdraw the permit, or refer the matter for legal action depending on the severity. The modification or withdrawal had to follow the agency's procedural rules.
Q: How long is a "reasonable time" to correct an error?
A: Depends on the source of the error and the holder's reliance. The Department's own clerical errors should be corrected within roughly the appeal-period timeframe (per Anchor Casualty). Applicant fraud allows longer windows because the holder has less justifiable reliance. The actual time would be decided case by case.
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: An irrigation permit authorizes the use of water from a specific source. A water right is the more enduring legal interest in the water itself, often acquired by long-term, continuous, beneficial use. The water right is harder to revoke than the underlying permit, which is why the opinion treated post-water-right modification more carefully.
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 judicial water-rights doctrine (riparian and prior-appropriation principles applied through the courts). The two systems intersect when a permit creates a use that ripens into a vested water right.
The administrative-permitting side of this system requires the Department to evaluate applications. Sample analyses are the technical foundation of those evaluations. If samples are invalid, the entire foundation is compromised, and the permit may have been wrongly issued.
The inherent-powers doctrine Meierhenry invoked is well-established in administrative law. Agencies are not generally locked into their initial decisions; they can revisit those decisions when fraud, mistake, or inadvertence comes to light. The constraint is timing: the revisit must happen within a reasonable period to balance the agency's interest in accurate decisions against the affected party's interest in stability.
The opinion's distinction between applicant-source error and agency-source error is also standard. When an applicant has been honest and the agency has made the error, the applicant's reliance interests are stronger and modifications must happen quickly. When the applicant has been the source of the problem (fraud, improper procedure), reliance interests are diminished and modifications can happen later.
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
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:
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Does SDCL 46-5-6.4 authorize the Department to validate the water sample used to obtain this irrigation permit?
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Is there any other statute authorizing the Department to proceed in this fashion?
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Would it make any difference if a water right, based on this irrigation permit, had been obtained?
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What if the irrigation permit had been unconditionally approved, instead of conditionally approved as in this instance?
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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