State of South Dakota
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EIGHTY-SEVENTH SESSION
LEGISLATIVE ASSEMBLY, 2012
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742T0733
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SENATE ENGROSSED NO. HB 1230 - 2/23/2012
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Introduced by: Representatives Nelson (Stace), Brunner, Feickert, Hansen (Jon), Hickey,
Hoffman, Hubbel, Hunhoff (Bernie), Kirschman, Kloucek, Kopp, Liss,
Magstadt, Olson (Betty), Rozum, Russell, Tornow, Tulson, Van Gerpen, and
Venner and Senators Adelstein, Frerichs, Hundstad, and Maher
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FOR AN ACT ENTITLED, An Act to modify the publication requirements for water rights
applications.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 46-2A-4 be amended to read as follows:
46-2A-4. Except in the case of an application for a well driller license or a well pump
installer license, if a recommendation is to approve or defer an application or if an applicant has
filed a petition to oppose a recommendation to deny an application, the applicant shall publish
notice of the application and recommendation at least once
a week for two successive weeks in
at least one official newspaper in each county where the water will be diverted or used or
where
project works will be located. The official newspaper shall be selected by the chief engineer and
shall be a newspaper designated as an official newspaper pursuant to § 7-18-3.
If the official
newspaper is a weekly newspaper, then the notice shall also be published at least once in a daily
newspaper. The daily newspaper selected by the chief engineer shall be located as near as
possible to the location where the water will be diverted or used. Public notice of the application
shall also be posted on the department's website until final action is taken on the application.
The second publication shall be at least twenty days before the first day of the Water
Management Board meeting at which the matter is noticed to be heard. No application for a
permit, license, or amendment may be considered and approved by the board until proof of all
required publications has been filed with the chief engineer. The notice, which shall be provided
by the chief engineer to the applicable newspapers, shall include the following, as applicable:
(1) The name and address of the applicant;
(2) A brief description of the project, including, where applicable, the proposed place or
places of use of the water or facilities, including the point of diversion, the amount
of water to be used and the purpose for which the water or facility is to be used;
(3) A brief statement describing the recommendation and the reasons for the
recommendation;
(4) A statement that any interested person who intends to participate in the hearing shall
file a petition to oppose or support the application and that the petition shall be filed
with the chief engineer and applicant at least ten days before the published date for
hearing;
(5) A statement that a petition to oppose or support an application may be informal, but
shall be in writing and shall contain the following:
(a) A statement describing the petitioner's interest in the application;
(b) The reasons for the petitioner's opposition to or support for the application;
and
(c) The signature and mailing address of the petitioner or the petitioner's legal
counsel;
(6) A statement telling where copies of the recommendation, application, or other
information may be obtained;
(7) The time when and the place where the application will be considered by the board;
(8) A statement that the recommendation of the chief engineer is not final or binding
upon the board and is subject to the approval of the board after it reaches a
conclusion based on facts at the public hearing;
(9) A statement that the time of hearing will be automatically extended for at least twenty
days upon written request of the applicant or any person who has filed a petition to
oppose or support the application and a statement that any such request by the
applicant or person filing a petition shall be made at least ten days before the
published date for hearing; and
(10) A statement that if the applicant does not contest the recommendation of the chief
engineer and no petition to oppose the application is received, the chief engineer shall
act on the application pursuant to the chief engineer's recommendation and no
hearing may be held before the board, unless the chief engineer makes a finding that
an application, even if uncontested, presents important issues of public policy or
public interest that should be heard by the board.
Section 2. That § 46-2A-23 be amended to read as follows:
46-2A-23. Following the issuance of a recommendation to approve an application pursuant
to § 46-2A-2, the chief engineer may publish, at the expense of the applicant, a notice to
determine whether any person opposes the application or recommendation of the chief engineer.
The notice shall be published as provided for in § 46-2A-4, and the notice shall contain the
information provided for in subdivisions 46-2A-4(1), (2), (3), (5), (6), and (10). The notice is
not required to refer to a board meeting or hearing date. In addition, the notice shall include a
statement that if the applicant intends to contest the recommendation, the applicant shall file a
petition with the chief engineer, and any interested person who intends to oppose or support the
application or recommendation shall file a petition with the chief engineer and the applicant.
Any petition shall be filed within ten days of the second published notice.
If no petition to contest the recommendation or to oppose an application is timely filed, the
chief engineer, following receipt of proof of publication, shall act on the application consistent
with the chief engineer's recommendation as provided by rules promulgated by the Water
Management Board pursuant to chapter 1-26 delegating authority to the chief engineer to issue
uncontested permits pursuant to §§ 46-1-16 and 46-2-3.1, without hearing by the board.
If a petition to contest the recommendation or to oppose the application is timely filed, the
chief engineer shall provide notice of a board hearing pursuant to § 1-26-17. The notice shall
also include a statement that the recommendation of the chief engineer is not final or binding
upon the board and is subject to the decision of the board based on evidence and record of the
public hearing. A statement shall also be included in the notice that the applicant or any
interested person who has filed a petition to oppose or support an application, may file a written
notice with the chief engineer requesting postponement of the original hearing date. The written
notice requesting postponement shall be filed within twenty days of the date of the notice
scheduling the board hearing, but not less than ten days before the date the application is
scheduled for hearing. Upon timely receipt of a written notice, the chief engineer shall cancel
the original hearing and reschedule the hearing not less than twenty days after the original
hearing date. Notice of hearing shall be provided by personal service or by first class mail to the
applicant and parties of record.