ARSD Article 74:05 — WATER DEVELOPMENT

AGRICULTURE & NATURAL RESOURCES AGRICULTURE & NATURAL RESOURCES

Chapter 74:05:01 Rural water supply grants, Repealed

ARSD 74:05:01 Repealed chapter

CHAPTER 74:05:01

RURAL WATER SUPPLY GRANTS

(Repealed. 13 SDR 23, effective September 3, 1986)

Chapter 74:05:02 Public water utilities, Repealed

ARSD 74:05:02 Repealed chapter

CHAPTER 74:05:02

PUBLIC WATER UTILITIES

(Repealed. 23 SDR 180, effective April 30, 1997)

Chapter 74:05:03 Loans for construction of water resources projects, Repealed

ARSD 74:05:03 Repealed chapter

CHAPTER 74:05:03

LOANS FOR CONSTRUCTION OF WATER RESOURCES PROJECTS

(Repealed. 13 SDR 23, effective September 3, 1986)

Chapter 74:05:04 Loans for study of water resource projects, Repealed

ARSD 74:05:04 Repealed chapter

CHAPTER 74:05:04

LOANS FOR STUDY OF WATER RESOURCE PROJECTS

(Repealed. 13 SDR 23, effective September 3, 1986)

Chapter 74:05:05 Director areas in water development districts

ARSD 74:05:05:01 Definitions

Words defined in SDCL 46A-2-4 have the same meaning when used in this chapter.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 36 SDR 208, effective June 29, 2010.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1.

ARSD 74:05:05:02 Repealed

Eligibility requirements for rural director candidates outside three-mile limit.** Repealed.

History

Source: 11 SDR 72, effective November 25, 1984; 12 SDR 170, effective May 1, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; repealed, 36 SDR 208, effective June 29, 2010.

ARSD 74:05:05:03 Repealed

Eligibility requirements for municipal director candidates within three-mile limit.** Repealed.

History

Source: 11 SDR 72, effective November 25, 1984; 12 SDR 170, effective May 1, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; repealed, 36 SDR 208, effective June 29, 2010.

ARSD 74:05:05:04 Repealed

Eligibility requirements for persons residing but not owning property within three-mile limit.** Repealed.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; repealed, 36 SDR 208, effective June 29, 2010.

ARSD 74:05:05:05 Voter eligibility

Only registered voters residing within a director area may vote in water development district elections.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1, 46A-3B-3, 46A-3C-6.

ARSD 74:05:05:06 Repealed

Land ownership and residency questionnaire.** Repealed.

History

Source: 11 SDR 72, effective November 25, 1984; repealed, 12 SDR 170, effective May 1, 1986.

ARSD 74:05:05:07 Repealed

Immediate family members.** Repealed.

History

Source: 11 SDR 72, effective November 25, 1984; 12 SDR 170, effective May 1, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; repealed, 36 SDR 208, effective June 29, 2010.

ARSD 74:05:05:08 Repealed

Eligibility of shareholders and partners.** Repealed.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; repealed, 36 SDR 208, effective June 29, 2010.

ARSD 74:05:05:09 Repealed

Ownership under contract for deed.** Repealed.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; repealed, 36 SDR 208, effective June 29, 2010.

ARSD 74:05:05:10 Repealed

Joint ownership of real property.** Repealed.

History

Source: 11 SDR 72, effective November 25, 1984; 12 SDR 170, effective May 1, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; repealed, 36 SDR 208, effective June 29, 2010.

ARSD 74:05:05:11 Nominating petition forms

Petitions for the nomination of water development district directors for the initial election shall be on forms provided by the Department of Agriculture and Natural Resources.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-3.

ARSD 74:05:05:12 Repealed

Staggered terms and ballot position.** Repealed.

History

Source: 11 SDR 72, effective November 25, 1984; 12 SDR 170, effective May 1, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; repealed, 36 SDR 208, effective June 29, 2010.

ARSD 74:05:05:13 Repealed

Determination of three-mile limit.** Repealed.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; repealed, 36 SDR 208, effective June 29, 2010.

ARSD 74:05:05:14 Election precincts, polling places, and officials

The election precincts and polling places for purposes of the initial election of water development district directors are those established, designated, and appointed by the board of county commissioners or by county auditors for purposes of the general election. The county auditors may appoint from one to five separate water development district precinct election officials from the master list of voters registered in the precinct whenever the county auditors determine the appointments to be necessary.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1.

ARSD 74:05:05:15 Publication of notice

Notice of vacancy for the initial election of water development district directors shall be published pursuant to SDCL 46A-3B-6 in a newspaper selected by the Department of Agriculture and Natural Resources in each affected county. The newspaper shall be an official newspaper of the county designated pursuant to SDCL 7-18-3.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1, 46A-3B-6.

ARSD 74:05:05:16 James River water development district director areas

The director areas of the James River water development district are as follows:

(1) Director 1: representing Aberdeen voting districts 1, 2, 3, 4, and 7; those portions of voting district 12 East Aberdeen Township that are contained by voting district 7 Aberdeen, and south of 131st Street or 24th Avenue Northwest; and those portions of voting district 16 West Aberdeen Township that are surrounded by voting district 3 Aberdeen;

(2) Director 2: representing Aberdeen voting districts 5, 6, 8, 9, 10, and 11; and those portions of voting district 12 East Aberdeen Township that are surrounded by voting district 11 Aberdeen; and those portions of voting district 16 West Aberdeen Township that are surrounded by voting district 8 Aberdeen;

(3) Director 3: representing the cities of Westport, Columbia, Claremont, Groton, Stratford, Verdon, Frederick, Warner, and Hecla in Brown County; Palmyra, Osceola, Savo, Liberty, Hecla, Portage, Allison, Frederick, Richland, Greenfield, Lansing, North Detroit, Franklyn, Oneota, Brainard, Shelby, South Detroit, Carlisle, Westport, Garland, Columbia, Claremont, Ravinia, Lincoln, Ordway, Cambria, Putney, Riverside, Henry, Groton, Gem, West Hanson, East Hanson, West Rondell, East Rondell, Garden Prairie, Highland, Mercier, New Hope, Warner, and Bates townships in Brown County; those portions of voting district 12 East Aberdeen Township not in director area 1 or 2; those portions of voting district 16 West Aberdeen Township not in director area 1 or 2; the cities of Britton, Eden, Lake City, and Langford in Marshall County; and Buffalo, Dayton, Dumarce, Eden, Fort, Hamilton, Hickman, Lake, Lowell, Miller, Newark, Newport, Pleasant Valley, Red Iron Lake, Sisseton, Stena, Waverly, Weston, and Wismer townships in Marshall County;

(4) Director 4: representing all of Spink and Sanborn Counties; the cities of Broadland, Wessington, Wolsey, and Hitchcock in Beadle County; and Nance, Bonilla, Altoona, Whiteside, Allen, Broadland, Wessington, Wolsey, Hartland, Fairfield, Pleasant View, and Theresa, townships in Beadle County; and Beadle County voting districts 01, 04, and 05;

(5) Director 5: representing Huron voting districts W01 P2, W01 P4, W02 P4, W03 P3, W7-P1, W7-2 P5, W8-1 P3, and W8-2 P5;

(6) Director 6: representing Mitchell voting districts 6, 7, 8, 9, 10, 11, 14, 15, 16, 18, and 19;

(7) Director 7: representing all of Hanson County and Davison County except the city of Mitchell voting districts 6, 7, 8, 9, 10, 11, 14, 15, 16, 18, and 19; the cities of Plankinton and Stickney in Aurora County; Pleasant Valley, Bristol, Belford, Cooper, Firesteel, Palatine, Plankinton, Hopper, Pleasant Lake, Dudley, and Aurora townships in Aurora County; the cities of Dimock and Parkston in Hutchinson County; and Starr, Cross Plains, Liberty, and Susquehanna townships in Hutchinson County;

(8) Director 8: representing the city of Yankton east of West City Limits Road, west of Ferdig Avenue, south of Highway 50 or 31^st Street, and census blocks 4026, 4046, and 4051, and excluding census block 1006; and;

(9) Director 9: representing the cities of Freeman, Tripp, Olivet, and Menno in Hutchinson County; Wolf Creek, Grandview, Kassel, Valley, Molan, Wittenberg, Kulm, German, Sharon, Oak Hollow, Fair, Kaylor, Capital, Clayton, Foster, Milltown, Pleasant, Silver Lake, and Sweet townships in Hutchinson County; and all of Yankton County except the City of Yankton east of West City Limits Road, west of Ferdig Avenue, north of Highway 50 or 31^st Street, and excluding census block 4026 and including census block 1006.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 18 SDR 148, effective March 22, 1992; 22 SDR 95, effective January 17, 1996; 28 SDR 123, effective March 11, 2002; 36 SDR 27, effective August 20, 2009; 36 SDR 111, effective January 11, 2010; 38 SDR 9, effective August 4, 2011; 40 SDR 14, effective July 29, 2013; 42 SDR 14, effective August 10, 2015; 49 SDR 47, effective November 21, 2022.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1 to 46A-3B-3, inclusive.

ARSD 74:05:05:17 Central Plains water development district director areas

The director areas of the Central Plains water development district are as follows:

(1) Director 1: representing Pierre Voting Districts 26, 32, 33, and voting district 28 north of Capitol Avenue and east of Highland Avenue;

(2) Director 2: representing Pierre Voting Districts 29, 30, and 31;

(3) Director 3: representing all of Hyde County; all of Sully County; the cities of Orient, Rockham, and Seneca in Faulk County; Arcade, Bryant, Ellisville, Hillsdale, Irving, Orient, and Zell townships in Faulk County; and Southwest Faulk and West Potter unorganized territories in Faulk County;

(4) Director 4: representing the cities of Blunt and Harrold in Hughes County; Raber township in Hughes County; and Crow Creek, West Hughes North, West Hughes West, North Hughes and West Hughes Southeast Unorganized Territories in Hughes County;

(5) Director 5: representing the cities of Faulkton, Chelsea, Cresbard, and Onaka in Faulk County; Centerville, Clark, Devoe, Emerson, Enterprise, Fairview, Freedom, Lafoon, Myron, O'Neil, Pioneer, Saratoga, Sherman, Tamworth, Union, and Wesley and townships in Faulk County; Pulaski unorganized territory in Faulk County; the cities of Gettysburg, Hoven, Lebanon, and Tolstoy in Potter County; and Central Potter and East Potter unorganized territories in Potter County;

(6) Director 6: representing Pierre voting districts 21, 23, and voting district 28 west of Highland Avenue; and census blocks 4042 and 4043; and

(7) Director 7: representing Pierre voting districts 24 and 34.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 28 SDR 123, effective March 11, 2002; 30 SDR 21, effective August 25, 2003; 30 SDR 100, effective December 23, 2003; 36 SDR 27, effective August 20, 2009; 38 SDR 9, effective August 4, 2011; 49 SDR 47, effective November 21, 2022.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1 to 46A-3B-3, inclusive.

ARSD 74:05:05:18 South Central water development district director areas

The director areas of the South Central water development district are as follows:

(1) Director 1: representing all of Gregory County; Iona township in Lyman County; Black Dog Unorganized Territory in Lyman County; the city of Geddes in Charles Mix County; and Jackson, Rhoda, and Signal townships in Charles Mix County;

(2) Director 2: representing the cities of Chamberlain and Pukwana in Brule County; Chamberlain, Pukwana, Brule, Red Lake, Ola, Richland, America, Smith, and Eagle townships in Brule County; Grandview Unorganized Territory in Brule County; LaRoche, Lake George, Forbes, and Hamilton townships in Charles Mix County; and Castalia Unorganized Territory in Charles Mix County;

(3) Director 3: representing all of Buffalo County; the city of Kimball in Brule County; West Point, Union, Lyon Plummer, Waldo, Willow Lake, Kimball, Plainfield, Wilbur, Torrey Lake, Pleasant Grove, Highland, and Cleveland townships in Brule County; the city of White Lake in Aurora County; and Patten, Lake, White Lake, Eureka, Gales, Crystal Lake, Washington, Center, and Truro townships in Aurora County;

(4) Director 4: representing the cities of Lake Andes, Wagner, Ravinia, and Pickstown in Charles Mix County; and White Swan, Highland, Plain Center, and Lawrence townships in Charles Mix County;

(5) Director 5: representing the cities of Avon, Scotland, and Tabor in Bon Homme County; Northeast, Northwest, and Southeast Unorganized Territories in Bon Homme County; the city of Delmont in Douglas County; Belmont, East Choteau, Lincoln, Valley, and Independence townships in Douglas County; and Bryan, Choteau Creek, and Kennedy townships in Charles Mix County;

(6) Director 6: representing the city of Dante in Charles Mix County; Lone Tree, Ree, Rouse, and Wahehe townships in Charles Mix County; the cities of Springfield and Tyndall in Bon Homme County; and Southwest Unorganized Territory in Bon Homme County; and

(7) Director 7: representing the city of Platte in Charles Mix County; Moore, Howard, Darlington, Goose Lake, and Platte townships in Charles Mix County; Carroll unorganized territory in Charles Mix County; the cities of Armour and Corsica in Douglas County; and Chester, Clark, Garfield, Grandview, Holland, Iowa, Joubert, Walnut Grove, and Washington Townships in Douglas County.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 18 SDR 148, effective March 22, 1992; 28 SDR 123, effective March 11, 2002; 36 SDR 27, effective August 20, 2009; 38 SDR 9, effective August 4, 2011; 40 SDR 101, effective December 2, 2013; 49 SDR 46, effective November 21, 2022.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1 to 46A-3B-3, inclusive.

ARSD 74:05:05:19 West River water development district director areas

The director areas of the West River water development district are as follows:

(1) Director 1: representing all of Haakon County; Rainy Creek/Cheyenne, Sunnyside, Ash, Cedar Butte, Huron, and Peno townships in Pennington County; that portion of Shyne township east of the Cheyenne River; and Dalzell Canyon and Northeast Pennington Unorganized Territories in Pennington County;

(2) Director 2: representing the cities of Kadoka, Cottonwood, and Belvidere in Jackson County; Grandview II, Wall, Jewett, and Weta townships in Jackson County; the cities of Quinn and Wall in Pennington County; Fairview, Lake Creek, Lake Flat, Wasta, Lake Hill, and Quinn townships in Pennington County; that portion of Wasta township west of the Cheyenne River in Pennington County; Northeast Jackson Unorganized Territory in Jackson County; and that portion of Northwest Jackson Unorganized Territory within the West River Water Development District boundaries;

(3) Director 3: representing the cities of White River and Wood in Mellette County; Blackpipe, Butte, Fairview, Moshe, Norris, Ring Thunder, Rosebud, and Surprise Valley townships in Mellette County; Central Mellette unorganized territory in Mellette County; the city of Murdo in Jones County; Mullen and Buffalo townships in Jones County; and Westover Unorganized Territory in Jones County;

(4) Director 4: representing the city of Draper in Jones County; Bailey and Oacoma townships in Lyman County; Mussman, Draper, Dunkel, Kolls, Virgil, Okaton, Scovil, Williams Creek, Zickrick, and South Creek townships in Jones County; Rich Valley, Central Jones, Grandview, and North Jones Unorganized Territories in Jones County; the city of Oacoma in Lyman County; Lyman County voting districts 12 and 13; those portions of Lyman County voting districts 4 and 9 south of census tract 9401 excluding the area east of SD Highway 273 and north of Interstate 90; those portions of Rex township south of Interstate 90; East Lyman unorganized territory excluding the area bound west or north by SD Highway 47 on the south by Interstate 90; and Bad Nation, Cody, and Riverside townships in Mellette County; and

(5) Director 5: representing those portions of Lyman County not included in director area 4 and within the West River Water Development District boundaries.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 17 SDR 23, effective August 15, 1990; 28 SDR 123, effective March 11, 2002; 36 SDR 27, effective August 20, 2009; 38 SDR 9, effective August 4, 2011; 49 SDR 47, effective November 21, 2022.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1, 46A-3B-2, 46A-3B-3, inclusive.

ARSD 74:05:05:20 East Dakota water development district director areas

The director areas of the East Dakota water development district are as follows:

(1) Director 1: representing all of Codington and Grant Counties;

(2) Director 2: representing all of Moody County; the cities of Brant Lake, Madison, Nunda, Ramona, and Wentworth in Lake County; Badus, Chester, Farmington, Franklin, Herman, Lake View, Le Roy, Nunda, Rutland, Summit, and Wentworth townships in Lake County; VTD-precincts 8, 9, 11, 12, 14, and 16 in Brookings County; and VTD-precincts VP 09, VP 10, VP 11, and VP 21 in Minnehaha County;

(3) Director 3: representing all of Deuel and Hamlin Counties; the city of Badger in Kingsbury County; Badger township in Kingsbury County; and VTD-precincts 1, 2, 3, 4, 5, 6, 10, 13, and 15 in Brookings County;

(4) Director 4: representing VTD-precincts VP 01, VP 02, VP 03, VP 04, VP 05, VP 06, VP 07, VP 08, VP 13, VP 15, VP 16, and VP 17 in Minnehaha County; and Sioux Falls VTD-precincts 3-14, 3-18, and 3-20;

(5) Director 5: representing Sioux Falls VTD-precincts 3-5, 3-12, 4-4, 4-5, 4-6, 4-7, 4-16, 4-19, 5-2, 5-4, 5-15, 5-16, 5-18, 5-22, and 5-23;

(6) Director 6: representing Sioux Falls VTD-precincts 1-9, 1-10, 1-13, 1-14, 1-16, 1-17, 3-9, 3-10, 3-11, 3-15, 3-16, 3-17, and 3-19;

(7) Director 7: representing Sioux Falls VTD-precincts 1-11, 1-12, 1-15, 1-18, 1-19, 1-20, 2-1, 2-2, 2-8, 2-9, 2-10, 2-11, 2-12, 2-14, 2-15, and 5-12;

(8) Director 8: representing Sioux Falls VTD-precincts 1-4, 1-5, 1-6, 3-1, 3-13, 4-2, 4-3, 4-9, 5-1, 5-3, 5-6, 5-7, 5-8, 5-9, 5-10, 5-19, 5-20, and 5-21; and

(9) Director 9: representing Sioux Falls VTD-precincts 2-3, 2-6, 2-13, 2-16, 2-17, 2-18, 4-8, 4-10, 4-11, 4-12, 4-13, 4-15, 4-17, and 4-18.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 18 SDR 148, effective March 22, 1992; 28 SDR 123, effective March 13, 2002; 36 SDR 27, effective August 20, 2009; 36 SDR 111, effective January 11, 2010; 38 SDR 9, effective August 4, 2011; 40 SDR 14, effective July 29, 2013; 49 SDR 47, effective November 21, 2022; 51 SDR 58, effective December 4, 2024.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3A-3, 46A-3B-1 to 46A-3B-3, inclusive.

ARSD 74:05:05:21 West Dakota water development district director areas

The director areas of the West Dakota water development district are as follows:

(1) Director 1: representing Pennington County precincts 4-1, 5-1, 5-3, and 5-5;

(2) Director 2: representing Pennington County precincts 1-1, 3-5, DT, HR, JS, and RK; those portions of Pennington County precinct WP not contained within precincts 3-4 and 3-5; those portions of Pennington County precinct VF within 1-1; and census tract 11004 block 1016;

(3) Director 3: representing Pennington County precincts 1-2, 1-5, 2-1, and 2-4;

(4) Director 4: representing Pennington County precincts CA, HC, KY, and LS; those portions of Pennington County precinct RV not included within director area 7; those portions of Pennington County precinct VF not within precinct 1-1; those portions of Pennington County precinct 1-6 within precinct CA; and census tract 10906 block 2014;

(5) Director 5: representing Pennington County precincts AW, BE, NU, WS west of the Cheyenne River, and VV;

(6) Director 6: representing Pennington County precincts 3-2, 3-4, 5-2, SR, and CL; those portions of Pennington County precinct WP that are adjacent to precincts 3-4 and 3-5; census tract 11300 blocks 2027, 2035, 3025, 3026, and 4006; and census tract 11004 block 3002;

(7) Director 7: representing Pennington County precincts 1-4, 2-2, 2-3, 2-5, and NH; those portions of Pennington County precinct RV that are within precinct and 2-3; census tract 10906 blocks 1031 and 1032; census tract 10907 blocks 1043 and 1079; and census tract 10908 block 4009;

(8) Director 8: representing Pennington County precincts 4-2, 4-3, 4-4, and 4-5; and census tract 11400 blocks 2005 and 2034; and

(9) Director 9: representing Pennington County precincts 1-3, 3-1, 3-3, and 5-4.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 18 SDR 148, effective March 22, 1992; 28 SDR 123, effective March 11, 2002; 36 SDR 27, effective August 20, 2009; 38 SDR 9, effective August 4, 2011; 40 SDR 14, effective July 29, 2013; 49 SDR 47, effective November 21, 2022.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1 to 46A-3B-3, inclusive.

ARSD 74:05:05:21.01 Vermillion Basin water development district director areas

The director areas of the Vermillion Basin water development district are as follows:

(1) Director 1: representing Vermillion VTD-precincts Central C-2, Northwest-NW1, and Northwest-NW2; and those portions of Clay County VTD-precinct W03 within the boundaries of the city of Vermillion;

(2) Director 2: representing Vermillion VTD-precincts Central-C1, Northeast-NE1, Southeast-SE1, and Southeast-SE2;

(3) Director 3: representing Vermillion VTD-precinct Northeast-NE2; VTD-precincts W01 and W02 in Clay County; those portions of Clay County VTD-precinct W03 outside the boundaries of the city of Vermillion; and VTD-precinct 7 in Turner County;

(4) Director 4: representing the city of Marion in Turner County; Marion township in Turner County; and VTD-precincts 4, 5, 6, and 8 in Turner County;

(5) Director 5: representing the cities of Dolton and Monroe in Turner County; Rosefield, Dolton, and Monroe townships in Turner County; VTD-precincts 2 and 3 in Turner County; the city of Bridgewater in McCook County; Bridgewater and Union townships in McCook County; and VTD-precinct 3 in McCook County;

(6) Director 6: representing the cities of Canova, Howard, and Vilas in Miner County; Canova, Clearwater, Howard, and Vermillion townships in Miner County; Clarno, Orland, and Winfred townships in Lake County; Emery and Jefferson townships in McCook County; and VTD-precincts 1, 2, 5, and 6 in McCook County; and

(7) Director 7: representing the cities of Arlington, Bancroft, De Smet, Erwin, Hetland, Iroquois, Lake Preston, and Oldham in Kingsbury County; Baker, De Smet, Denver, Esmond, Hartland, Iroquois, Le Sueur, Manchester, Mathews, Spirit Lake, Spring Lake, and Whitewood townships in Kingsbury County; Concord and Wayne townships in Lake County, and Adams, Belleview, Grafton, and Henden townships in Miner County.

History

Source: 17 SDR 23, effective August 15, 1990; 18 SDR 148, effective March 22, 1992; 28 SDR 123, effective March 11, 2002; 36 SDR 27, effective August 20, 2009; 38 SDR 9, effective August 4, 2011; 49 SDR 47, effective November 21, 2022; 51 SDR 58, effective December 4, 2024.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3A-7.1, 46A-3B-1 to 46A-3B-3, inclusive.

ARSD 74:05:05:22 Run-off election precincts, polling places, and officials

The election precincts, polling places, and election precinct officials for the purposes of a run-off election in a director area are those established, designated, and appointed by the board of county commissioners or by county auditors for purposes of the run-off election.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1.

ARSD 74:05:05:23 Notice of run-off election

Notice of the run-off election for a director area shall be published at least once in a newspaper selected by the Department of Agriculture and Natural Resources in each affected county. The newspaper shall be an official newspaper of the county designated pursuant to SDCL 7-18-3.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1.

ARSD 74:05:05:24 Run-off ballots

The Board of Water and Natural Resources shall furnish ballots for the run-off election to the respective county auditors in the same manner as for the initial election.

History

Source: 11 SDR 72, effective November 25, 1984; 13 SDR 129, 13 SDR 141, effective July 1, 1987.
General Authority: SDCL 46A-3C-6.
Law Implemented: SDCL 46A-3B-1.

Chapter 74:05:06 Water development district budgets, Repealed

ARSD 74:05:06 Repealed chapter

CHAPTER 74:05:06

WATER DEVELOPMENT DISTRICT BUDGETS

(Repealed. 24 SDR 80, effective December 14, 1997)

Chapter 74:05:07 Consolidated water facilities construction program

ARSD 74:05:07:01 Definitions

Words defined in SDCL 46A-1-3 and 46A-2-4 have the same meaning when used in this chapter. In addition, terms used in this chapter mean:

(1) "Applicant," the sponsoring entity applying for funding to construct a water resources project;

(2) "Award," grant or loan funds awarded by the Board of Water and Natural Resources for a water resources project pursuant to SDCL 46A-1-61, 46A-1-63.1, and 46A-1-64;

(3) "Board," the Board of Water and Natural Resources acting as that board or as the South Dakota Conservancy District;

(4) "Construction," actual installation of the facility including preparation of final plans, designs, and specifications;

(5) "Cooperative corporation," a cooperative corporation formed pursuant to SDCL chapter 47-15;

(6) "Department," the South Dakota Department of Agriculture and Natural Resources;

(7) "Designated agent," a person or entity specially designated by resolution of the board;

(8) "Emergency," act of God; strike, lockout, or other labor disturbance; act of a public enemy; order or restraint of any kind of the government of the United States of America or of the State of South Dakota or any of its departments, agencies, or officials or any civil or military authority other than the applicant or a municipal utility board; storm; drought; flood; explosion; breakage or accident to machinery, transmission pipes, or canals; or any other cause or event not reasonably within the control of the applicant;

(9) "Facilities plan," an engineering evaluation that describes the need for the proposed supply, treatment, storage, or distribution project based on present conditions and future needs; evaluates the costs and adequacies of appropriate alternatives; identifies potential environmental impacts of the proposed project; and provides the selection and justification of a final alternative;

(10) "Facility," a water resources project as defined in SDCL 46A-2-4(14);

(11) "In-kind contributions," work or materials provided without a cash outlay that can be used as local match;

(12) "Minimum established rates," rates charged to residential users of a wastewater or water system that meet the following criteria:

(a) Applicants that are either incorporated municipalities or sanitary districts must have established rates for the project that meet the following minimum rates:

(i) Drinking water - $30 per 5,000 gallons per month;

(ii) Wastewater - $30 per 5,000 gallons per month;

(b) All other applicants must have established rates for the project that meet the following minimum rates:

(i) Water, individual service - $55 per 7,000 gallons per month;

(ii) Wastewater, individual service - $40 per 5,000 gallons per month;

(13) "Nonfederal" or "nonfederal share," funds from any legal source other than federal grants received from a federal agency or received from an entity administering federal grants as pass-through grants;

(14) "Nonprofit corporation," a nonprofit corporation formed pursuant to SDCL chapter 47-22;

(15) "Preliminary design stage," that portion of a project associated with the following activities:

(a) Planning studies to identify the project scope of need;

(b) Initial cost estimates;

(d) Preliminary site identification surveys; and

(e) The preparation of funding applications and supporting documentation;

(16) "Recipient," the sponsoring entity receiving funds to construct a water resources project;

(17) "Secretary," the secretary of the Department of Agriculture and Natural Resources;

(18) "State water facilities plan," a plan developed by the board as provided by SDCL chapter 46A-1; and

(19) "Watershed assessment," a scientific evaluation that involves the measurement, analysis, and interpretation of the physical, chemical, and biological properties of waters and the region draining into those waters; assesses the current health of waters within a specific watershed; and utilizes predictive modeling of watershed conditions so that management decisions can be made to maintain or improve the health of those waters.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; 21 SDR 97, effective November 28, 1994; 22 SDR 95, effective January 17, 1996; 28 SDR 95, effective December 19, 2001; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-3, 46A-1-61, 46A-1-63.1, 46A-1-64, 46A-2-4.

ARSD 74:05:07:02 Eligibility

A facility is eligible for funding under the consolidated water facilities construction program, established in SDCL 46A-1-63.1, if the facility is included in the state water facilities plan, as required by SDCL 46A-1-63.1, prior to the submittal of the application and if the facility is sponsored by one of the following entities:

(1) Special purpose governmental entities, including irrigation districts organized under SDCL 46A-4, water user districts organized under SDCL 46A-9, watershed districts organized under SDCL 46A-14, water project districts organized under SDCL 46A-18, sanitary districts organized under SDCL 34A-5, conservation districts organized under SDCL 38-8, recycling and waste management districts organized under SDCL 34A-16, and other lawful special purpose governmental entities that may construct a water resources project;

(2) State agencies and general purpose governments such as municipalities, counties, or townships;

(3) Federally recognized Indian tribes; or

(4) Nonprofit corporations and cooperative corporations.

A facility that has been funded by the board is deemed to remain in the state water facilities plan for purposes of a request by the sponsor for additional funding for the facility.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; 21 SDR 97, effective November 28, 1994; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:03 Application restrictions

Eligible entities may apply only if the preliminary design or watershed assessment stage has been completed. Costs associated with the watershed assessment stage may not be considered as local cost sharing and may not be included in the calculation of total project costs.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:04 Repealed

Distribution of returned funds.** Repealed.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 202, effective July 4, 1993; repealed, 28 SDR 95, effective December 19, 2001.

ARSD 74:05:07:05 Repealed. Repealed

Distribution of uncommitted funds.** Repealed.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 202, effective July 4, 1993; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:07:06 Repealed

Size and type of awards.** Repealed.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 202, effective July 4, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; repealed, 36 SDR 208, effective June 28, 2010.

ARSD 74:05:07:07 Application cycles

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; 21 SDR 97, effective November 28, 1994; 22 SDR 95, effective January 17, 1996; 28 SDR 95, effective December 19, 2001; 33 SDR 106, effective December 26, 2006; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:08 Applications

Each applicant shall submit an application on forms provided by the department. The applicant may arrange with the department for a preapplication conference to provide for orderly application preparation. After the application has been submitted, the board or its designated agent may permit the applicant to add to, amend, or correct the application. The application shall include the following items if applicable to the proposed project:

(1) Application cover sheet;

(2) Budget sheet;

(3) Proposed method of financing;

(4) Utility information;

(5) Project narrative; and

(6) Preliminary engineering design or facilities plan or watershed project implementation plan, and cost estimates.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; requirement for proof of water right transferred from § 74:05:07:18, 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; requirement for proof of water right transferred to § 74:05:07:20, 21 SDR 97, effective November 28, 1994; 22 SDR 95, effective January 17, 1996; 28 SDR 95, effective December 19, 2001; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:08.01 Application review

The secretary shall review an application for completeness in accordance with the guidelines in § 74:05:07:08. The secretary shall notify the applicant within 30 days after the application deadline that the application is complete or incomplete. If the application is incomplete, the secretary shall identify in the notice those items required to complete the application. The applicant has 20 days to provide additional information intended to complete an application. The secretary shall notify the applicant whether or not the resubmission or additional information is satisfactory to complete the application.

The secretary shall conduct an overall review of the applicant's financial status and the factors for decision making as identified in § 74:05:07:11. This review may include an analysis of all assets and liabilities and an analysis of the applicant's financial capability as documented by the most recent audit or financial statement. The secretary shall recommend approval or denial of financial assistance. The secretary's recommendation for approval of financial assistance may include awarding any combination of a grant, loan, or partial funding from this program or in combination with other programs.

History

Source: 22 SDR 95, effective January 17, 1996; 24 SDR 80, effective December 14, 1997; 29 SDR 58, effective November 6, 2002; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:09 Authority and responsibility

Each applicant must demonstrate to the board that it has the legal authority and financial ability necessary for constructing, operating, repairing, and maintaining the proposed facility or service for its expected life and for obtaining and administering the proposed funding. The applicant is responsible for the facility and shall provide for continued availability of its services even though the facility may be operated, maintained, or managed by a third party under contract, management agreement, or written lease.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:10 Eligible use of funds

The board may award funds for facilities included in the state water facilities plan for one or more of the following uses:

(1) To improve, restore, enlarge, extend, construct, or protect facilities, lakes, streams, rivers, watersheds, and other surface or ground water resources;

(2) To construct, acquire, or lease buildings and works essential to the operation or protection of facilities;

(3) To construct or relocate roads, bridges, utilities, fences, and other public improvements or relocate roads, bridges, utilities, fences, and other private improvements related to the construction and operation of facilities;

(4) For the following if they are necessary for the construction or operation of a facility funded under subdivisions (1), (2), or (3) of this section:

(a) Fees, services, and costs such as legal, engineering, environmental, architectural, fiscal advisory, recording, planning, management, and for establishing or acquiring rights;

(b) The purchase of an interest in or access to existing facilities if the purchase is necessary to provide efficient service and an agreement between buyer and seller is reached;

(c) The acquisition of interests in land, water rights, permits, rights-of-way, and other evidence of land or water control which are necessary for development of the facility;

(d) Purchase or lease of equipment necessary to install, maintain, extend, protect, operate, or use facilities;

(e) Start-up expenses for a period not exceeding one year if the recipient will be unable to pay such expenses;

(f) Refinancing debts incurred by or on behalf of a water resources project sponsor if both of the following conditions exist:

(i) The debts were incurred for the facility, any part of the facility, or a service being refinanced; and

(ii) Arrangements cannot be made with the creditors to extend or modify the terms of the debt so that the project can remain fiscally sound;

(5) To pay eligible expenses incurred before approval of funding if there were reasons for proceeding before funding was approved;

(6) Capitalized interest; or

(7) Televising and cleaning sewer lines.

The board may consider in-kind contributions as match at a level established by usual and customary rates. All in-kind contributions require prior approval by the board or its designated agent.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; 33 SDR 106, effective December 26, 2006; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:11 Factors for decision making

In exercising its discretion in determining whether to award funding for a project, the board may consider the factors described in this section. Assistance recipients that meet the minimum established rates may receive grant assistance in an amount determined by the board. Assistance recipients seeking assistance for storm water or nonpoint source projects may receive grants in an amount determined by the board without meeting the minimum established rate. The decision-making factors in alphabetical order are as follows:

(1) Annual utility operating budgets;

(2) Available local cash and in-kind contributions;

(3) Available program funds;

(4) Compliance with permits and regulations;

(5) Debt service capability;

(6) Economic impact;

(7) Other funding sources;

(8) Readiness to proceed;

(9) Regionalization or consolidation of facilities;

(10) Technical feasibility;

(11) Utility rates; and

(12) Water quality benefits.

The Board may award grant assistance to recipients not meeting the minimum established rates for economic development opportunities, expansion into new areas, regionalization or consolidation of facilities, or other unique situations that may require special consideration.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64, 46A-2-3.

ARSD 74:05:07:12 Decisions on applications

Within 120 days after applications are presented, the board shall either disapprove the application or by resolution approve the application as requested or as modified by the board. The board may award less than the amount requested in the application or may deny assistance. If the applicant is eligible for assistance from more than one program, the board may approve financial assistance under any of the programs or under a combination of more than one program. If financial assistance is approved from more than one program, the amount of assistance approved may not exceed the aggregate amount of funding requested. In determining any financial assistance, the board may consider the factors in § 74:05:07:11.

The department shall notify each applicant in writing of the board's decision on the application.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:13 Security

The funding agreement for a loan must contain specific requirements to secure the loan. The loan may be secured by one or more of the following:

(1) Full faith and credit of the borrower;

(2) Pledges of taxes or assessments;

(3) Pledges of facility revenue; or

(4) Liens on the interest of the applicant in all real and personal property, easements, rights-of-way, water rights, water purchase contracts, and similar property rights, including leasehold interests, used in connection with the facility, whether owned at the time the loan is approved or acquired with loan funds.

A debt coverage ratio, which is a comparative statistic showing the relationship between the applicant's debt and the security pledged toward repayment, of at least 100 percent must be demonstrated in all funding agreements.

Cross-Reference: Funding agreements, § 74:05:07:20.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 202, effective July 4, 1993; 21 SDR 97, effective November 28, 1994.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:14 Time restrictions

The recipient shall expend the funds awarded to it within four years from the date the board awarded financial assistance.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; 28 SDR 95. effective December 19, 2001; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:15 Terms and conditions of grants and loans

The board shall establish in the funding agreement provided for in § 74:05:07:20 the terms and conditions of grants and loans made through the consolidated water facilities construction program.

Loans must be prior to or at parity with other loans having the same security unless the board approves otherwise.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:15.01 Loan interest rates

The board shall set the interest rates for the consolidated water facilities construction program based on the following:

(1) Current market rates;

(2) Current rate of alternative federal or state programs; and

(3) Current demand for program funds.

Based on the criteria above, the board may adjust the interest rates at any meeting if the proposed action is included on the agenda posted for the meeting.

History

Source: 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:16 Repealed

Review of financial status.** Repealed.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 202, effective July 4, 1993; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:07:17 Repealed

Environmental impact statement.** Repealed.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 202, effective July 4, 1993; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:07:18 Transferred

Transferred to § 74:05:07:08.**

ARSD 74:05:07:19 Lease agreements

If the right of use or control of real property not owned by the sponsoring entity is essential to the operation of the facility during the life of the funding agreement, this right must be evidenced by written agreements between the owner or owners of the property and the sponsoring entity or by a final judgment entered by the circuit court in a condemnation action. Lease agreements may not contain provision for restricted use of the facility or forfeiture or cancellation clauses except upon mutual agreement of all the parties to the lease and written approval of the board or its designated representative. Lease agreements must be written for a term at least equal to the normal anticipated life of the project or facility. The board shall approve or disapprove such lease agreements.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 202, effective July 4, 1993; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:20 Funding agreements

If an application is approved for funding, the board shall execute a funding agreement with the sponsoring entity which may include in its provisions the following requirements of the sponsoring entity:

(1) To acquire all property rights necessary for the facility including water rights, rights-of-way, and interest in land needed for the construction, operation, and maintenance of the facility; to furnish title insurance, a title opinion, or other documents showing the ownership of the land, mortgages, encumbrances, or other lien defects; and to obtain and record the releases, consents, or subordinations to the property rights for holders of outstanding liens or other instruments as necessary for the construction, operation, and maintenance of the facility;

(2) To provide security as required in § 74:05:07:13;

(3) To provide for the receipt of revenues to meet the requirements of debt service, operation, and maintenance and to establish reserves in an amount sufficient to assure that expenses and payments will be paid on time for loan installments, emergency maintenance, and replacement of assets that have a useful life less than the repayment period of the loan;

(4) To acquire and maintain insurance coverage, including fidelity bonds, as may be required;

(5) To establish and maintain books and records relating to the construction and operation of the facility and its financial affairs;

(6) To provide the board or its designated agent access to all books and records relating to the facility and access to the property of the system so that the board or its designated agent may ascertain whether the sponsoring entity is complying with the provisions of this chapter and with the funding agreement;

(7) Not to sell, transfer, lease, or otherwise encumber the facility, any portion of the facility, or interest in the facility without the prior written consent of the board while the funding agreement is in effect;

(8) In the case of a loan, if the undertaking would obligate the source of funds pledged to repay the loan, to agree not to enter into an agreement or incur other liabilities in connection with the facility, exclusive of normal maintenance, without the prior written consent of the board;

(9) In the case of a loan, to agree that upon default in the payments of principal and accrued interest on the loan or in the performance of any covenant or condition, the board, at its option, may do one or more of the following:

(a) Declare immediately due and payable the entire principal amount then outstanding and the accrued interest and all costs associated with collection of the outstanding balance;

(b) For the account of the borrower, incur and pay reasonable expenses for repair, maintenance, and operation of the facility and other expenses necessary to cure the cause of default; or

(c) Take possession of the facility and repair, maintain, or operate the facility or sell, lease, or otherwise dispose of the facility to another entity; and

(10) To secure written approval from the board or its designated agent for significant changes in project scope before or during construction according to conditions and specifications set forth in the funding agreement.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 202, effective July 4, 1993; requirement for proof of water right transferred from § 74:05:07:08, 21 SDR 97, effective November 28, 1994; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:21 Repealed

Deposit of contributed funds.** Repealed.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; repealed, 19 SDR 102, effective January 17, 1993.

ARSD 74:05:07:22 Repealed

Evidence of other funding sources.** Repealed.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 202, effective July 4, 1993; 21 SDR 97, effective November 28, 1994; repealed, 28 SDR 95, effective December 19, 2001.

ARSD 74:05:07:23 Disbursement of funds

The department shall disburse funds as costs are incurred. Total payments provided may not exceed the percentage provided in the award agreement.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-62, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:24 Repealed

Land surveys and engineering plans.** Repealed.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:07:25 Facility monitoring

The board or its designated agent shall reach any needed agreement with the sponsoring entity and the representatives of other sources of funds concerning the sponsoring entity's responsibilities for handling various aspects of the design and construction of the facility.

The department may monitor facility design and construction through inspections and may review facility inspection reports, change orders, construction payment receipts, and other invoices such as payment for engineering and legal fees and other materials. If discrepancies occur, the board or its designated agent may withhold payments until the discrepancies are considered corrected.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 102, effective January 17, 1993; 19 SDR 202, effective July 4, 1993.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:26 Recipient accounting methods

Each recipient shall maintain accounting records in accordance with applicable financial and reporting standards as set forth in the funding agreement. Each recipient shall retain all records, books, and supporting material for a minimum of three years after the completion of the project. This material shall be made available upon request to the board or the secretary.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 202, effective July 4, 1993; 31 SDR 89, effective December 27, 2004; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-65.
Law Implemented: SDCL 46A-1-61, 46A-1-63.1, 46A-1-64.

ARSD 74:05:07:27 Repealed

Filing of plans.** Repealed.

History

Source: 13 SDR 23, effective September 3, 1986; 13 SDR 129, 13 SDR 141, effective July 1, 1987; 19 SDR 202, effective July 4, 1993; repealed, 33 SDR 106, effective December 26, 2006.

Chapter 74:05:08 State water pollution control revolving fund program

ARSD 74:05:08:01 Definitions

Terms used in this chapter that are not defined in this section have the meaning given by the Clean Water Act. The following terms used in this chapter mean:

(1) "Act," "Clean Water Act," the federal Water Pollution Control Act Amendments of 1987, as amended to July 1, 2013; and Public Law 111-88, enacted October 30, 2009; Public Law 112-10, enacted April 15, 2011; Public Law 112-74, enacted December 23, 2011; Public Law 113-6, enacted March 26, 2013; Public Law 113-76, enacted January 17, 2014; Public Law 113-121, enacted June 10, 2014; Public Law 113-235, enacted December 16, 2014; Public Law 114-113, enacted December 18, 2015; Public Law 115-31, enacted May 5, 2017; Public Law 115-141, enacted March 23, 2018; Public Law 116-6, enacted February 15, 2019; Public Law 116-260, enacted December 20, 2019; Public Law 116-93, enacted December 27, 2020; Public Law 117-58, enacted November 15, 2021; and Public Law 117-103, enacted March 15, 2022;

(2) "Assistance," financial assistance awarded by the Board of Water and Natural Resources pursuant to SDCL 46A-1-60.1 to 46A-1-60.3, inclusive;

(3) "Board," the Board of Water and Natural Resources acting as that board or as the South Dakota Conservancy District;

(4) "Construction," any of the following procedures: preliminary planning to determine project feasibility; engineering, environmental, architectural, legal, fiscal, or economic studies, surveys, designs, plans, working drawings, specifications, or procedures; other necessary actions for the erection, building acquisition, alteration, remodeling, improvement, or extension of eligible works, the purchase of equipment, and the inspection or supervision of any of these procedures;

(5) "Department," the South Dakota Department of Agriculture and Natural Resources;

(6) "Facilities plan," an engineering evaluation that describes the need for the proposed wastewater treatment works based on present conditions and future needs, evaluates the costs and adequacies of appropriate alternatives, identifies potential environmental impacts of the proposed project; and provides the selection and justification of a final alternative;

(7) "Intended Use Plan," "IUP," a document prepared annually which provides assurances and specific proposals, including a list of potential SRF projects;

(8) "Interceptor," a sewer that receives wastewater from a number of transverse sewers or outlets and conducts the wastewater to a point for treatment or disposal;

(9) "Interim financing," a loan for a term not to exceed five years which is to be repaid from the proceeds of a federal grant or loan to be made by an agency or instrumentality of the United States government for a project;

(10) "Loan," lending of funds by the board to an eligible applicant pursuant to a financing agreement through the purchase or acquisition of any evidence of indebtedness or other obligation which is issued by the applicant and which is payable from taxes; from rates, revenues, charges, or assessments; from distributions of revenue pursuant to a state appropriation or statutory or constitutional provision; or from a pledge of property or other sources;

(11) "Median household income," as identified in the U.S. Census Bureau, American Community Survey, DP03 Selected Economic Characteristics 2020: 5-Year Estimates Data Profiles or by other statistically valid income data supplied by the applicant and acceptable to the board;

(12) "Minimum established rate," a rate charged to residential users of a wastewater system that meets the following criteria:

(a) For municipalities and sanitary districts the monthly residential wastewater bill is forty-five dollars or more for five thousand gallons usage or thirty dollars or more for five thousand gallons usage for projects that will receive loan proceeds from the Clean Water State Revolving Fund Emerging Contaminants funding made available through Public Law 117-58; or

(b) For all other assistance recipients the monthly residential wastewater bill is seventy dollars or more for five thousand gallons usage or thirty dollars or more for five thousand gallons usage for projects that will receive loan proceeds from the Clean Water State Revolving Fund Emerging Contaminants funding made available through Public Law 117-58;

(13) "Nonpoint source," pollution originating from many diffuse sources caused by rainfall or snowmelt moving over and through the ground;

(14) "Project," the actual erection, building acquisition, alteration, remodeling, improvement, or extension of eligible works, including the necessary planning, design, land acquisition, and purchase or installation of equipment, or implementation of nonpoint source practices;

(15) "Secretary," the secretary of the Department of Agriculture and Natural Resources;

(16) "Source water assessment report," a report prepared by the department that identifies potential sources of pollution in the portion of a watershed or groundwater area that contributes water to a water system that has at least fifteen service connections for year-round residents or that serves at least twenty-five year-round residents;

(17) "State Revolving Fund," the state water pollution control fund, a dedicated financing mechanism to provide loans, grants, and other forms of assistance for eligible works and projects;

(18) "Storm water project," a project designed to carry or retain only storm waters, surface runoff, street wash waters, and drainage;

(19) "TMDL process," a determination of the amount of pollution a waterbody can receive and still maintain water quality standards;

(20) "Wastewater treatment works," any acquisition of the land that will be an integral part of the treatment process or will be used for ultimate disposal of residues resulting from such treatment; or any devices and systems used in the storage, treatment, recycling, and reclamation of municipal sewage, domestic sewage, or industrial wastes of a liquid nature that:

(a) Implement section 201 of the Act;

(b) Are necessary to recycle or reuse water at the most economical cost over the estimated life of the works;

(d) Are used for the ultimate disposal of residues resulting from the treatment and acquisition of other land, and interests in land, that are necessary for construction; or

(e) Prevent, abate, reduce, store, treat, separate, or dispose of municipal waste, industrial waste, or waste in combined storm water and sanitary sewer systems; and

(21) "Water quality grant," a grant made by the board to eligible applicants for the purpose of providing assistance for projects eligible under the Act.

References: U.S. Census Bureau, American Community Survey, DP03 Selected Economic Characteristics 2020: 5-Year Estimates Data Profiles. This is information available at no cost over the internet at http://denr.sd.gov/documents/MedianHouseholdIncome.pdf.

History

Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 25 SDR 93, effective January 9, 1999; 28 SDR 4, effective July 22, 2001; 29 SDR 87, effective December 22, 2002; 30 SDR 170, effective May 10, 2004; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2, 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:08:02 Eligibility

A facility is eligible for funding under the SRF program, established in SDCL 46A-1-60.1, if the facility is:

(1) Included in the state water facilities plan before submittal of the application;

(2) On the current, approved IUP and project priority list; and

(3) Sponsored by one of the following entities:

(a) A watershed district organized under SDCL chapter 46A-14, water project district organized under SDCL chapter 46A-18, water user district organized under SDCL chapter 46A-9, sanitary district organized under SDCL chapter 34A-5, recycling and waste management district organized under SDCL chapter 34A-16, and any other lawful special purpose governmental entity that may construct eligible works;

(b) A state agency, state instrumentality, or political subdivision of the state; or

A facility is eligible for assistance under the SRF program in the form of a water quality grant if the project is sponsored by an entity listed in subdivisions (1) to (3) of this section or by a private entity undertaking an eligible project under the Act.

A facility that is eligible to use the proceeds of a loan to make loans to private persons for nonpoint source projects is also eligible for assistance under the SRF program.

A facility is eligible for interim financing under the SRF program if the project sponsor provides evidence, in a form satisfactory to the board, that an agency or instrumentality of the United States government has committed to make a federal grant or loan for the project, and the proceeds of the grant or loan will be assigned to repay the interim loan.

An applicant seeking funding solely for the expenses associated with the design of a facility and preparation of plans and specifications may receive funding without the facility being included in the state water facilities plan.

A facility that has been funded by the board is deemed to remain in the state water facilities plan for purposes of a request by the sponsor for additional funding for the facility.

History

Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 30 SDR 170, effective May 10, 2004; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2, 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:08:03 Project priority determined by points

The board shall award points according to § 74:05:08:03.01 to determine the priority of construction needs. The priority list shall be part of the intended use plan. It is not necessary for water quality grant projects to be ranked or listed on the IUP or state water plan.

History

Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 29 SDR 87, effective December 22, 2002; 36 SDR 208, effective June 28, 2010; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:03.01 Project priority rating system

Each potential project is assigned points based on the criteria in the following table:

Priority Criteria

Priority Points

(1) Project Type Criteria (points may be awarded to only one criterion - 2 to 10 points)

(a) Wastewater treatment works;

(i) Elimination of a combined sewer overflow

10 points

(ii) Construction of a new or rehabilitation of an existing wastewater treatment facility to increase or maintain its capacity or treatment ability

10 points

(iii) Elimination of a sanitary sewer overflow

8 points

(iv) Reduction in infiltration/inflow identified through documented sources, such as televising or smoke testing

6 points

(v) Replacement of existing lift stations or lines without documented infiltration/inflow benefits

4 points

(vi) Installation of new lift stations, collectors, or interceptors to provide service to undeveloped areas

2 points

(b) Untreated/uncontrolled runoff;

(i) Construction of a manure management system

10 points

(ii) Construction or rehabilitation of a storm water treatment/management facility

8 points

(iii) Development or implementation of an agricultural best manage-ment practice

6 points

(iv) Capping of a landfill

6 points

(v) Construction of storm water conveyance systems

2 points

(i) Elimination of septic systems

10 points

(ii) Removal of leaking underground storage tanks or remediation of impacts resulting from leaking underground storage tanks

10 points

(iii) Construction of systems, to include, but not limited to, liners, collection systems, and monitoring wells, to protect groundwater from leachate from landfills, hazardous waste sites, or other chemical storage facilities

8 points

(iv) Elimination of subsurface discharges

6 points

(d) Aquatic/riparian habitat and lake and stream restoration;

(i) Shoreline restoration

6 points

(ii) Sediment removal

5 points

(iii) Re-configuring of streams to enhance in-stream habitat

4 points

(e) Other - projects of a type not described above receive 2 points

(2) Proposed project benefits criteria (points may be awarded to only one criterion - 0 to 10 points)

(a) Projects that address enforcement activities

10 points

(b) Projects that address a documented water quality, public health, or safety issue, such as listing on the EPA quarterly noncompliance list, beach closings, stream sampling showing elevated fecal counts or fish kills

10 points

(d) Projects that raise the treatment capability of wastewater treatment facility from secondary treatment to advanced treatment or total retention

8 points

(e) Projects that reduce the loading of a parameter that has been identified as an impairment to the receiving water or watershed as identified through the TMDL process

8 points

(f) Projects that eliminate or remediate a source of ground water pollution

8 points

(g) Projects that provide regional consolidation of facilities

6 points

(h) Projects that incorporate pollution prevention or waste minimization techniques

4 points

(3) Water quality improvement criteria (points are cumulative for subsections (a) and (b) - 12 points maximum);

(a) Surface water restoration (points may be awarded to only one criterion - 0 to 8 points);

(i) Projects that benefit a priority 1 waterbody as identified on the list required by § 303(d) of the Act

8 points

(ii) Projects that benefit a priority 2 waterbody as identified on the list required by § 303(d) of the Act

6 points

(b) Source water quality protection (points may be awarded to only one criterion - 0 to 8 points);

(i) Projects eliminating or remediating a potential contamination source within the source water area of a ground water public water supply as identified in a Source Water Assessment Report

8 points

(ii) Projects eliminating or remediating a potential contamination source within zone A of a surface water public water supply as identified in a Source Water Assessment Report

8 points

(iii) Projects eliminating or remediating a potential contamination source within zone B of a surface water public water supply as identified in a Source Water Assessment Report

4 points

(4) Benefit magnitude criteria (points may be awarded to only one criterion - 2 to 10 points);

(a) Projects designed to serve the populace of a municipality, sanitary district, or other special purpose district are awarded points based on the population of the applicant. The source of population data is the 2020 census as prepared by the Bureau of Census, Department of Commerce. Points are awarded based on the following table:

1 to 200 persons

2 points

201 to 500 persons

3 points

501 to 1,000 persons

4 points

1,001 to 2,500 persons

5 points

2,501 to 5,000 persons

6 points

5,001 to 10,000 persons

7 points

10,001 to 30,000 persons

8 points

30,001 and greater

10 points;

(b) Projects benefiting a watershed or large rural area are awarded points based on the area of the benefited area as provided in the following table:

less than 25,000 acres

2 points

25,000 to 100,000 acres

5 points

greater than 100,000 acres.

8 points

History

Source: 29 SDR 87, effective December 22, 2002; 30 SDR 100, effective December 23, 2003; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:08:03.02 Repealed

Green infrastructure priority points.** Repealed.

History

Source: 36 SDR 208, effective June 28, 2010; repealed, 41 SDR 173, effective May 11, 2015.

ARSD 74:05:08:04 Amendment of priority list

The board may add a project to the priority list established pursuant to § 74:05:08:03 at any board meeting if the action is included on the agenda posted for the meeting. The department shall assign points to projects added to the priority list according to § 74:05:08:03.01.

History

Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 29 SDR 87, effective December 22, 2002; 36 SDR 208, effective June 28, 2010; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:04.01 Priority list bypass procedures

Projects are funded based on their project priority rating. Projects with the highest priority rating that have submitted a complete application and demonstrated adequate capacity to repay the loan are funded before lower-rated projects. If a project on the priority list has not demonstrated readiness to proceed by submitting an application, the project may be bypassed and the next highest priority project that has submitted an application is funded. The department shall exert reasonable efforts to ensure that the higher-rated projects on the priority list are funded.

History

Source: 29 SDR 87, effective December 22, 2002.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:05 Annual preparation of IUP

Preparation of the IUP begins after the state water plan application deadline of October 1 of each year. Upon tentative completion of the annual preparation of the proposed IUP by the secretary, the board shall conduct a hearing to receive comments from the public. At least 20 calendar days notice shall be given of the public hearing in at least three newspapers of general circulation in different parts of the state. Written comments shall be accepted during this period. After all comments are received, the board shall compile and adopt the final IUP within 30 days after the hearing.

History

Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 29 SDR 87, effective December 22, 2002; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:06 Amendment of IUP

The board may amend the IUP at any board meeting if the proposed action is included on the agenda posted for the meeting.

History

Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 29 SDR 87, effective December 22, 2002; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:07 Deadline for application

Applications are due on the first day of January, April, July, and October. Applications must be postmarked or delivered no later than the day on which applications are due. The department shall present applications to the board after the completion of all required technical reviews and financial analyses. The department shall notify the applicant of the board meeting at which the application will be considered by the board.

History

Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 22 SDR 95, effective January 17, 1996; 28 SDR 95, effective December 19, 2001; 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:08 Reserve for water quality grants

The board may designate a portion of the SRF excess administrative expense surcharge for water quality grants for each federal fiscal year. The amount designated by the board and the activities for which the grant will be used shall be specified in the intended use plan.

History

Source: 15 SDR 20, effective August 7, 1988; 28 SDR 4, effective July 22, 2001; 30 SDR 100, effective December 23, 2003.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:09 Repealed

Application restrictions.** Repealed.

History

Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 29 SDR 87, effective December 22, 2002; repealed, 33 SDR 106, effective December 26, 2006.

ARSD 74:05:08:10 Repealed

Project priority list removal procedure.** Repealed.

History

Source: 15 SDR 20, effective August 7, 1988; repealed, 21 SDR 97, effective November 28, 1994.

ARSD 74:05:08:11 Repealed

Project to be approved before construction.** Repealed.

History

Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; 33 SDR 106, effective December 26, 2006; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:08:12 Financial assistance approval criteria

The board may award less financial assistance than the amount requested in the application or may deny assistance. If the applicant is eligible for assistance from more than one program, the board may approve financial assistance under any of the programs or under a combination of more than one program, including the consolidated water facilities construction fund program under chapter 74:05:07 or the solid waste management program under chapter 74:05:10. If financial assistance is approved from more than one program, the amount of assistance approved may not exceed the aggregate amount of funding requested. In determining the amount of financial assistance, the board may consider the following:

(1) The availability of funds in the SRF program;

(2) The applicant's need;

(3) Violation of health or safety standards; and

(4) The applicant's ability to repay.

History

Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 22 SDR 95, effective January 17, 1996; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:12.01 Principal forgiveness as part of assistance agreements

Assistance recipients described in § 74:05:08:02 that meet the affordability criteria described in § 74:05:08:12.03 and minimum established rates may receive principal forgiveness as authorized by the Act in an amount determined by the board. Applicants seeking assistance to implement a process, material, technique, or technology to address water or energy efficiency goals, mitigate storm water run-off, or encourage sustainable project planning, design, and construction may receive principal forgiveness in an amount determined by the board without meeting the affordability criteria and minimum established rate.

History

Source: 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:12.02 Principal forgiveness amount determination

In exercising its discretion in determining the amount of principal forgiveness, the board may consider the following decision-making factors, which are set forth in alphabetical order:

(1) Annual utility operating budgets;

(2) Available local cash and in-kind contributions;

(3) Available program funds;

(4) Compliance with permits and regulations;

(5) Debt service capability;

(6) Economic impact;

(7) Other funding sources;

(8) Readiness to proceed;

(9) Regionalization or consolidation of facilities;

(10) Technical feasibility;

(11) Utility rates; and

(12) Water quality benefits.

History

Source: 36 SDR 208, effective June 28, 2010; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:12.03 Affordability criteria to determine principal forgiveness eligibility

All applicants will be awarded points to determine principal forgiveness eligibility as follows: five points if an applicant's median household income is less than or equal to ninety-five percent of the statewide median household income; three points if an applicant's median household income is less than or equal to one hundred and five percent of the statewide median household income and greater than ninety-five percent of the statewide median household income; one point if the applicant's 2020 census population is less than the applicant's 2010 census population; and one point if an applicant's county unemployment rate is greater than the statewide unemployment rate. If the boundaries of an applicant are located in more than one county, the unemployment rate of the county with the largest percentage of the applicant's population will be used. Applicants must receive a minimum of five points to be eligible for principal forgiveness.

For the purposes of this section, the term, unemployment rate, means the 2021 average unemployment rate for a county or state, as applicable, as determined by the South Dakota Department of Labor and Regulation, Labor Market Information Center.

Note: The 2021 average unemployment rate for a county or state is available at no cost over the internet at https://danr.sd.gov/Funding/EnvironmentalFunding/docs/2020_MHI.xlsx

History

Source: 41 SDR 173, effective May 11, 2015; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:08:13 Applications

An applicant for assistance shall submit an application to the board on forms obtained from the department. An application shall not be considered by the board until the secretary has determined that the application is complete. A complete loan application must include:

(1) An application form to include:

(a) Certification of Clean Water Needs Categories;

(b) Certification Regarding Debarment, Suspension, and Other Responsibility Matters; and

(2) Two years of the most recent audits or statements to include specific accounting of the fund pledged for repayment of the loan;

(3) The current year's budget;

(4) Documentation of the current user rates and surcharges, if applicable;

(5) A resolution of authorized signatory for submittal of application and signing of payment requests;

(6) A draft facilities plan; and

(7) Amortization schedules for all existing debt secured by the proposed revenue pledged.

History

Source: 15 SDR 20, effective August 7, 1988; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:08:13.01 Application review and completeness determination

The secretary shall review an application for completeness in accordance with the guidelines in § 74:05:08:13. The secretary shall notify the applicant within 30 days after the application deadline that the application is complete or incomplete. If the application is incomplete, the secretary shall identify in the notice those items required to complete the application. Except as addressed in §§ 74:05:08:13.02 and 74:05:08:13.03, the applicant has 20 days to provide additional information intended to complete an application. The secretary shall notify the applicant whether or not the resubmission or additional information is satisfactory to complete the application.

The secretary shall conduct an overall review of the applicant's financial status, the financial assistance approval criteria as identified in § 74:05:08:12, and the factors for principal forgiveness decision making as identified in § 74:05:08:12.02. The secretary shall prepare a summary of the applicant's financial status and may provide a copy to the board. This summary may include an analysis of all assets and liabilities and an analysis of the applicant's financial capability as documented by the most recent audit or financial statement. The secretary shall recommend approval or denial of financial assistance. The secretary's recommendation for approval of financial assistance may include awarding any combination of principal forgiveness, loan, or partial funding from this program or in combination with other programs.

History

Source: 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:13.02 Facilities plan submittal

Any applicant requesting assistance for a wastewater treatment works or storm water project must prepare a facilities plan. A facilities plan is not required from an applicant requesting funding for other types of projects. The facilities plan shall at minimum provide the information contained in subdivision 74:05:08:01(6). The applicant shall be notified of any deficiencies in the draft facilities plan submitted with the application. A completed facilities plan must be received by the department to initiate the environmental review process. The facilities plan is not considered complete until the following items are received:

(1) Information to address the deficiencies identified by the secretary;

(2) Receipt of evidence of advertisement of a public hearing;

(3) Minutes from the public hearing;

(4) Responses from the U.S. Fish and Wildlife Service; South Dakota Department of Game, Fish and Parks; Natural Resources Conservation Service; U.S. Army Corps of Engineers; and the State Historical Preservation Office; and

(5) Resolution of any issues identified in the public hearing or by the agencies listed in § 74:05:08:13.02(4).

History

Source: 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:08:13.03 Environmental determination

For projects that pursuant to the Act require an environmental review, the environmental review process must be completed before the closing of the loan. For projects requiring a Categorical Exclusion, the process is considered complete upon publication of the Categorical Exclusion. For projects requiring a Finding of No Significant Impact determination, the process is considered complete when the 30-day comment period following the publication of the Finding of No Significant Impact has elapsed and any comments have been addressed.

History

Source: 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:14 Eligible use of funds

Financial assistance may be awarded for wastewater treatment works, storm water projects, and nonpoint source projects. Eligible uses may include:

(1) Any one or more of the following items;

(a) Facilities plan preparation and financial assistance application preparation;

(b) Engineering, environmental, architectural, legal, fiscal, or economic studies;

(c) Surveys, designs, plans, land acquisition, working drawings, specifications, equipment purchases, or other necessary actions for erection, building acquisition, alteration, or remodeling improvement;

(d) Extension of eligible works;

(e) A nonpoint source management project qualifying under § 319 of the Act;

(f) Operation and maintenance manual preparation; or

(g) Operator startup training;

(2) Refinancing existing debts if they were incurred and construction begun after March 7, 1985, and if the debts were used to fund projects identified in subdivision (1) of this section. In addition, the projects must satisfy the statutory requirements contained in § 602(b)(6) of the Act;

(3) Guarantee or purchase insurance for local debt obligations;

(4) Interim financing of projects identified in subdivision (1) of this section;

(5) Loans to an applicant for the purpose of relending the loan proceeds to private persons whose project consists of eligible nonpoint source projects; or

(6) Capitalized interest.

History

Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 30 SDR 170, effective May 10, 2004; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:15 Financial security

Specific requirements to secure a loan must be included in the assistance agreement. The loan must be secured by one or more of the following:

(1) Full faith and credit of the borrower;

(2) Pledges of taxes or assessments;

(3) Pledges of facility revenue;

(4) Liens on the interest of the applicant in all real and personal property, easements, rights-of-way, water rights, and similar property rights, including leasehold interests, used in connection with the facility or the proceeds therefrom whether owned at the time the loan is approved or acquired with loan funds;

(5) For loans made for interim financing of a project, the assignment of the proceeds of the federal grant or loan to be made by an agency or instrumentality of the United States government for the project; or

(6) For loans made to an applicant for relending to private persons whose project consists of eligible nonpoint source projects, the loan repayments from the private loan, and an assignment of an additional collateral securing the private loan.

History

Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 30 SDR 170, effective May 10, 2004.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:16 Repealed

Time restrictions.** Repealed.

History

Source: 15 SDR 20, effective August 7, 1988; 33 SDR 106, effective December 26, 2006; repealed, 36 SDR 208, effective June 28, 2010.

ARSD 74:05:08:17 Duration of assistance

The board shall set the repayment period for each loan in the assistance agreement, which may not exceed five years for interim financing and 30 years in all other cases as permitted by the Act. The repayment period may not exceed the useful life of the project.

History

Source: 15 SDR 20, effective August 7, 1988; 28 SDR 4, effective July 22, 2001; 30 SDR 170, effective May 10, 2004; 33 SDR 106, effective December 26, 2006; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:18 Assistance agreement interest rates

The board may set interest rates at any board meeting if the proposed action is included on the agenda posted for the meeting. The board shall set the interest rates based upon the following criteria:

(1) Current market rates;

(2) Rates secured on state issued matching funds; and

(3) Current demand for program funds.

The interest rate on the loan is 0 percent if the board determines to award a 100 percent principal forgiveness loan.

Cross-Reference: Notice of meetings of public bodies, SDCL 1-25-1.1.

History

Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 25 SDR 93, effective January 9, 1999; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:18.01 Loans for nonpoint source projects

An applicant is eligible for a reduction in the interest rate if as part of its assistance agreement the applicant agrees to fund an eligible nonpoint source project in a watershed where the applicant is located or in a watershed or groundwater area that contributes water to the applicant's water system.

History

Source: 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:08:18.02 Loans to project sponsors subject to the Build America, Buy America Act provisions

An applicant is eligible for a reduction in the interest rate if its project is subject to the Build America, Buy America Act, Public Law 117-58, provisions.

History

Source: 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:08:19 Repealed

Review of financial status.** Repealed.

History

Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 22 SDR 95, effective January 17, 1996; 28 SDR 4, effective July 22, 2001; 36 SDR 208, effective June 28, 2010; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:08:20 Assistance agreements

If an application is approved for funding, the board shall execute an assistance agreement with the sponsoring entity. The board shall establish the terms and conditions included in the assistance agreement. Assistance agreements for loans may include, but are not limited to, the following requirements of the recipient:

(1) To acquire all property rights necessary for the project including rights-of-way and interest in land needed for the construction, operation, and maintenance of the facility; to furnish title insurance, a title opinion, or other documents showing the ownership of the land, mortgages, encumbrances, or other lien defects; and to obtain and record the releases, consents, or subordinations to the property rights for holders of outstanding liens or other instruments as necessary for the construction, operation, and maintenance of the facility;

(2) To provide security as required in § 74:05:08:15;

(3) To provide for the receipt of revenues sufficient to meet the requirements of debt service, operation, and maintenance and to establish reserves in an amount sufficient to assure that expenses and payments will be paid on time for loan installments, emergency maintenance, and replacement of assets that have a useful life less than the repayment period of the loan;

(4) To acquire and maintain insurance coverage, including fidelity bonds;

(5) To establish and maintain books and records relating to the construction and operation of the facility and its financial affairs;

(6) To provide the secretary access to all books and records relating to the facility and access to the property of the system so that the secretary may ascertain whether the sponsoring entity is complying with the provisions of this chapter and with the funding agreement;

(7) To use funds that remain available after all costs to the facility have been paid for needed extensions, enlargements, and improvements of the facility with the written permission of the board;

(8) Not to sell, transfer, lease, or otherwise encumber the facility, any portion of the facility, or interest in the facility to a public entity without the prior written consent of the board while the funding agreement is in effect, or to a private entity;

(9) If the undertaking would obligate the source of funds pledged to repay the assistance agreement, to agree not to borrow money from any source, enter into an agreement, or incur other liabilities in connection with the facility, exclusive of normal maintenance, without the prior written consent of the board;

(10) To agree that upon default in the payments of principal and accrued interest on the loan or in the performance of any covenant or condition, the board may, at its option, do one or more of the following:

(a) Declare immediately due and payable the entire principal amount then outstanding and the accrued interest and all costs associated with collection of the outstanding balance;

(b) For the account of the borrower incur and pay reasonable expenses for repair, maintenance, and operation of the facility and other expenses necessary to cure the cause of default; or

(c) Take possession of the facility, repair, maintain, operate, sell, lease, or otherwise dispose of the facility to another entity;

(11) To secure written approval from the secretary for any changes or modifications in the plans of a facility before or during construction according to conditions and specifications set forth in the funding agreement.

The board may amend assistance agreements as it considers necessary and circumstances warrant.

History

Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:21 Disbursement of funds

The secretary shall approve all disbursements to the recipient.

History

Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:22 Accounting methods and audits

Each recipient must maintain accounting records in accordance with applicable financial and reporting standards as set forth in the assistance agreement. Each recipient must agree to have audits performed in accordance with applicable state and federal law, as set forth in the assistance agreement. Each loan recipient must retain all accounting records, books, and supporting material for a minimum of three years after completion of the project. Each grant recipient must retain all accounting records, books, and supporting material for a minimum of three years after the end of the assistance agreement. These accounting records must be made available for inspection by state and federal representatives upon request.

History

Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 28 SDR 95, effective December 19, 2001; 31 SDR 89, effective December 27, 2004; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:08:23 Repealed

Loans to communities participating in the MWPP program.** Repealed.

History

Source: 25 SDR 93, effective January 9, 1999; repealed, 28 SDR 4, effective July 22, 2001.

ARSD 74:05:08:24 Repealed

Small community planning grants.** Repealed.

History

Source: 28 SDR 4, effective July 22, 2001; repealed, 30 SDR 100, effective December 23, 2003.

Chapter 74:05:09 Groundwater research and public education grants, Repealed

ARSD 74:05:09 Repealed chapter

CHAPTER 74:05:09

GROUNDWATER RESEARCH AND PUBLIC EDUCATION GRANTS

(Repealed. 28 SDR 4, effective July 22, 2001)

Chapter 74:05:10 Solid waste management program

ARSD 74:05:10:01 Definitions

Words defined in SDCL 34A-6-1.3, 46A-1-3, and 46A-2-4 have the same meaning when used in this chapter unless they are defined otherwise in this section. Terms used in this chapter mean:

(1) "Applicant," the entity or individual applying for a grant or loan to conduct a solid waste management project;

(2) "Award," grant or loan funds awarded by the board for a solid waste management project pursuant to SDCL 46A-1-83 and 46A-1-84;

(3) "Board," the South Dakota Board of Water and Natural Resources acting as that board or as the South Dakota Conservancy District;

(4) "Construction," actual installation of the project, including preparation of final plans, designs, specifications, and equipment purchases;

(5) "Department," the South Dakota Department of Agriculture and Natural Resources;

(6) "Designated agent," a person or entity specifically designated by resolution of the board;

(7) "Incineration facilities," facilities using one or more furnaces to burn solid waste to reduce the volume of the waste by removing its combustible material;

(8) "In-kind contributions," work or materials provided without a cash outlay that can be used as local match;

(9) "Nonprofit corporation," a nonprofit corporation formed pursuant to SDCL chapter 47-22;

(10) "Proposal," an application for a solid waste management program award for the purpose of planning, constructing, or operating a solid waste management project or for the purchasing of equipment;

(11) "Recipient," the entity or individual receiving grant or loan funds;

(12) "Recycling," as defined in SDCL 34A-6-61(16);

(13) "Secretary," the secretary of the South Dakota Department of Agriculture and Natural Resources or a designated representative of the secretary.

History

Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, October 25, 1992; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 33 SDR 106, effective December 26, 2006; 40 SDR 14, effective July 29, 2013; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-83.

ARSD 74:05:10:01.01 Project defined

A project is defined as all activities, including education and research, or appurtenances acquired, purchased, constructed, improved, or operated to facilitate solid waste source reduction, recycling, reuse, use for energy production, or land disposal, including closure, or the establishment of regionally managed revolving loan fund programs by eligible planning agencies. Not included with energy production are incineration facilities.

History

Source: 19 SDR 61, effective October 25, 1992; 23 SDR 12, effective July 30, 1996; 23 SDR 202, effective June 2, 1997.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-82, 46A-1-83.

ARSD 74:05:10:02 Eligibility

74: 05:10 :02. Eligibility. An applicant is eligible for funding if the proposal meets the following guidelines:

(1) The proposal shows potential cost savings, public health or environmental benefits, and how it will advance the state solid waste management policy goals and hierarchy established in SDCL 34A-6-1.2;

(2) The proposal is submitted by an individual, partnership, limited liability company, corporation, cooperative, municipality, county, regional or state-wide planning agency, federally recognized Indian tribe, special purpose district that has the authority to construct or operate a solid waste, waste tire, or recycling facility, or a state or public agency working in cooperation with an eligible project sponsor; and

(3) The proposal is a complete application as specified in § 74:05:10:04.

History

Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 24 SDR 80, effective December 14, 1997.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-82 to 46A-1-84.

ARSD 74:05:10:03 Repealed

Special criteria for state agency applicants.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; 23 SDR 12, effective July 30, 1996; repealed, 24 SDR 80, effective December 14, 1997.

ARSD 74:05:10:04 Applications

Applicants shall submit an application to the board on forms obtained from the department. The applicant may arrange with the department for a preapplication conference to provide for orderly application preparation. An application will not be considered by the board until the secretary has determined that the application is complete. A complete application must include the following items, as applicable to the proposal:

(1) Application form;

(2) Project narrative;

(3) Current year budget;

(4) Previous two years of financial statements;

(5) Amortization schedules for all debt pledged to proposed security;

(6) Local government resolution approving signatory of application, agreements, and pay requests;

(7) Local government resolution approving current fee structure;

(8) Cooperative agreements with units of local government;

(9) Letters of financial commitment from other federal, state, or local agencies or private resources; and

(10) Business plan.

History

Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-82 to 46A-1-84.

ARSD 74:05:10:05 Authority and responsibility

Each applicant must demonstrate to the board that it has the legal authority and technical and financial capability necessary to plan, construct, operate, repair, and maintain the proposed solid waste management projects and to obtain and administer the proposed funding. The applicant is responsible for the project and shall provide for continued availability of its services even though the project may be operated, maintained, or managed by a third party under contract or management agreement.

History

Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-82 to 46A-1-84.

ARSD 74:05:10:06 Repealed

Required matching funds for grants.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 26 SDR 6, effective July 28, 1999; 28 SDR 95, effective December 19, 2001; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:10:07 Application completeness determination

The secretary shall review an application for completeness in accordance with the guidelines in § 74:05:10:04. The secretary shall notify the applicant within 30 days after receipt of the application that the application is complete or incomplete. If the application is incomplete, the secretary shall identify in the notice those items required to complete the application. The applicant has 20 days to provide additional information intended to complete an application. The secretary shall notify the applicant whether or not the resubmission or additional information is satisfactory to complete the application.

History

Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-82 to 46A-1-84.

ARSD 74:05:10:08 Review by secretary

The secretary shall review a complete application for the ability of the applicant to follow the solid waste management policies, goals, and hierarchy established in SDCL 34A-6-1.2 and the factors for decision making as identified in § 74:05:10:10. The secretary shall conduct an overall review of the applicant's financial status. This review may include an analysis of all assets and liabilities and an analysis of the applicant's financial capability as documented by the most recent audit or financial statement. The secretary shall recommend approval or denial of financial assistance. The secretary's recommendation for approval of financial assistance may include awarding any combination of a grant, loan, or partial funding from this program or in combination with other programs.

History

Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-83, 46A-1-84.

ARSD 74:05:10:09 Application cycles

Applications are due to the department on the first day of January, April, July, and October. Applications must be postmarked or delivered to the department no later than the day on which the applications are due.

History

Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 34A-6-85, 46A-1-82 to 46A-1-84.

ARSD 74:05:10:09.01 Repealed

Special award cycle.** Repealed.

History

Source: 23 SDR 12, effective July 30, 1996; repealed, 23 SDR 202, effective June 2, 1997.

ARSD 74:05:10:10 Factors for decision making

In exercising its discretion in determining whether to award funding to a proposal, the board may consider the factors described in this section. Applicants shall compete against other applicants requesting funds and the board shall award funding based on the degree to which each project satisfies the statutory guidelines found in SDCL 46A-1-84. Neither satisfying the statutory guidelines nor satisfying the statutory guidelines to a higher degree than other projects requires the board to fund a project. The decision-making factors in alphabetical order are as follows:

(1) Area to be served;

(2) Available program funds;

(3) Business plan review;

(4) Compliance with applicable permits and regulations;

(5) Debt service capability;

(6) Economic impact;

(7) Local contribution;

(8) Other funding sources;

(9) Rates;

(10) Readiness to proceed;

(11) Regionalization or consolidation of facilities; and

(12) Technical feasibility.

History

Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 34A-6-85, 46A-1-82 to 46A-1-84.

ARSD 74:05:10:11 Decision on applications by the board

Within 120 days after applications are presented to the board, the board shall either disapprove the application or by resolution approve the application as requested or as modified by the board. The board may award less than the amount requested in the application or may deny assistance. If the applicant is eligible for assistance from more than one program, the board may approve financial assistance under any of the programs or under a combination of more than one program. If financial assistance is approved from more than one program, the amount of assistance approved may not exceed the aggregate amount of funding requested. In determining any financial assistance, the board may consider the factors in § 74:05:10:10.

The department shall notify each applicant in writing of the board's decision on the application.

History

Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-83, 46A-1-84.

ARSD 74:05:10:12 Terms and conditions of awards

The board shall establish in the funding agreement provided for in § 74:05:10:15 the terms and conditions of awards made through the solid waste management program.

History

Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-67, 46A-1-84.
Law Implemented: SDCL 46A-1-83, 46A-1-84.

ARSD 74:05:10:12.01 Loan interest rates, parity positions, and revenue requirements

Loan interest rates, parity position, and revenue requirements.** The board shall establish interest rates for the solid waste management program. The board may adjust the interest rates at any meeting if the proposed action is included on the agenda posted for the meeting. A loan must be prior to or at parity with other loans having the same security unless the board approves otherwise. The applicant must show evidence that revenues are sufficient to support the proposed project considered for funding.

History

Source: 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001.
General Authority: SDCL 46A-1-67, 46A-1-84.
Law Implemented: SDCL 46A-1-84.

ARSD 74:05:10:12.02 Interest rates

The board shall set the interest rates based upon:

(1) Current market rates;

(2) Current rate of alternative federal or state programs; and

(3) Current demand for program funds.

History

Source: 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-67, 46A-1-84.
Law Implemented: SDCL 46A-1-84.

ARSD 74:05:10:13 Eligible use of funds

Funds may be awarded for proposals approved by the board for the planning, construction, operation of solid waste management projects, equipment purchases, research, waste tire shredding and transportation, or educational activities and for purposes identified in the application. Project activities identified as eligible uses include:

(1) To improve, restore, enlarge, extend, or construct projects that are consistent with the state solid waste management hierarchy detailed in SDCL 34A-6-1.2;

(2) To construct, acquire, or lease buildings and works essential to the operation or protection of the project;

(3) To construct or relocate roads, bridges, utilities, fences, and other public or private improvements related to the operation or construction of the project;

(4) For the following if they are necessary for the construction, operation, or implementation of a project funded under subdivisions (1), (2), or (3) of this section:

(a) Fees, services, and costs such as legal, engineering, environmental, architectural, fiscal advisory, recording, planning, management, and for establishing or acquiring rights;

(b) The purchase of an interest in or access to existing facilities when the purchase is necessary to provide efficient service and an agreement between buyer and seller is reached;

(c) The acquisition of interest in land, material rights, leases, permits, rights-of-way, and other evidence of land or material control which are necessary for the development of the project;

(d) Purchase or lease of equipment necessary to install, maintain, extend, protect, operate, or use solid waste management facilities;

(e) Refinancing debts incurred by or on behalf of an eligible project sponsor if both of the following conditions exist:

(i) The debts were incurred for the facility, any part of the facility, or a service being refinanced; and

(ii) Arrangements cannot be made with the creditors to extend or modify the terms of the debt so that the project can remain fiscally sound;

(5) To establish, administer, and maintain regionally managed revolving loan fund programs established by eligible planning agencies;

(6) To pay eligible obligations incurred before approval of funding if there were reasons for proceeding before funding was approved; or

(7) Capitalized interest.

The board may consider in-kind contributions as match at a level established by usual and customary rates if use of the sponsor's employees or materials, or both, is shown to be more efficient and economical. All in-kind contributions require prior approval by the board or its designated agent.

History

Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 23 SDR 202, effective June 2, 1997; 28 SDR 95, effective December 19, 2001; 33 SDR 106, effective December 26, 2006; 40 SDR 14, effective July 29, 2013
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-83, 46A-1-84.

ARSD 74:05:10:14 Repealed

Size and type of awards.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:10:15 Funding agreements

If an application is approved for funding, the board shall execute a funding agreement with the applicant. Funding agreements may include the following requirements of the sponsoring entity:

(1) To acquire all property rights necessary for the project including water rights, rights-of-way, and interest in land needed for the construction, operation, and maintenance of the project; to furnish title insurance, a title opinion, or other documents showing the ownership of the land, mortgages, encumbrances, or other lien defects; and to obtain and record the releases, consents, or subordinations to the property rights for holders of outstanding liens or other instruments as necessary for the construction, operation, and maintenance of the project;

(2) To provide security as required in § 74:05:10:29;

(4) To acquire and maintain insurance coverage, including fidelity bonds and performance bonds, as may be required;

(5) To establish and maintain books and records relating to the construction and operation of the project and its financial affairs, including a final report;

(6) To submit an annual financial audit or a final financial audit, or both, performed by a qualified independent accountant licensed in South Dakota;

(7) To provide the board and the secretary access to all books and records relating to the project and access to the property of the project so that the board may ascertain whether the sponsoring entity is complying with the provisions of this chapter and with the funding agreement;

(8) Not to sell, transfer, lease, or otherwise encumber the project, any portion of the project, or interest in the project without the prior written consent of the board while the funding agreement or its conditions are in effect;

(9) To secure written approval from the board or its designated agent for changes in project scope before or during construction according to conditions and specifications set forth in the funding agreement;

(10) In the case of a loan, to agree not to enter into an agreement or incur other liabilities in connection with the project, exclusive of normal maintenance, without the prior written consent of the board if the undertaking would obligate the source of funds pledged to repay the loan; and

(11) In the case of a loan, to agree that upon default in the payments of principal and accrued interest on the loan or in the performance of any covenant or condition, the board at its option may do one or more of the following:

(a) Declare immediately due and payable the entire principal amount then outstanding and the accrued interest and all costs associated with collection of the outstanding balance;

(b) For the account of the borrower, incur and pay reasonable expenses for repair, maintenance, and operation of the project and other expenses necessary to cure the cause of default; or

(c) Take possession of the project and repair, maintain, or operate the project or sell, lease, or otherwise dispose of the project to another entity.

Cross-References: Requirements for accountants, SDCL chapter 36-20B, ARSD art 20:75; Recipient's accounting methods, § 74:05:10:23.

History

Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-83, 46A-1-84.

ARSD 74:05:10:16 Repealed

Evidence of other funding sources.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; repealed, 21 SDR 97, effective November 28, 1994.

ARSD 74:05:10:17 Repealed

Applicable permits.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; 23 SDR 12, effective July 30, 1996; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:10:18 Repealed

Environmental impact statement.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:10:19 Repealed

Land surveys and engineering plans and specifications.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:10:20 Repealed

Filing of plans.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; 28 SDR 95, effective December 19, 2001; repealed, 33 SDR 106, effective December 26, 2006.

ARSD 74:05:10:21 Repealed

Notice of commencement and discontinuance of solid waste management project.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; repealed, 21 SDR 97, effective November 28, 1994.

ARSD 74:05:10:22 Disbursement of funds

The department shall disburse funds as costs are incurred. Total payments provided may not exceed the percentage provided in the award agreement.

History

Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-82 to 46A-1-84.

ARSD 74:05:10:23 Recipient's accounting methods

Each recipient shall maintain accounting records in accordance with applicable financial and reporting standards as set forth in the funding agreement. Each recipient shall retain all records, books, and supporting material for a minimum of three years after completion of the project. This material shall be made available to the board or the secretary upon request.

History

Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 31 SDR 89, effective December 27, 2004; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-82 to 46A-1-84.

ARSD 74:05:10:24 Repealed

Periodic submission of monitoring reports to the secretary.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; repealed, 23 SDR 12, effective July 30, 1996.

ARSD 74:05:10:25 Project monitoring

The department may monitor project design and construction through inspections and may review project inspection reports, change orders, construction payment receipts, and other invoices such as payments for engineering and legal fees and other materials. If discrepancies occur, the board or its designated agent may withhold payments until the discrepancies are considered corrected.

History

Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-84.

ARSD 74:05:10:26 Time restrictions for expenditures

The recipient shall expend the funds awarded to it within three years from the date the board awarded financial assistance.

Cross-Reference: Funding agreements, § 74:05:10:15.

History

Source: 17 SDR 7, effective July 22, 1990; 19 SDR 61, effective October 25, 1992; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-61, 46A-1-83, 46A-1-84.

ARSD 74:05:10:27 Repealed

Distribution of returned funds.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; 21 SDR 97, effective November 28, 1994; 23 SDR 12, effective July 30, 1996; repealed, 28 SDR 95, effective December 19, 2001.

ARSD 74:05:10:28 Repealed

Distribution of uncommitted funds.** Repealed.

History

Source: 17 SDR 7, effective July 22, 1990; 23 SDR 12, effective July 30, 1996; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:10:29 Security

The funding agreement for a loan must contain specific requirements to secure the loan. A loan may be secured by one or more of the following:

(1) Full faith and credit of the borrower;

(2) Pledges of taxes or assessments;

(3) Pledges of facility revenue;

(4) Liens on the interest of the applicant in all real and personal property, easements, rights-of-way, water rights, purchase contracts, and similar property rights, including leasehold interests, used in connection with the project, whether owned at the time the loan is approved or acquired with loan funds; or

(5) Guarantees.

For loans secured by project revenues, a debt coverage ratio, which is a comparative statistic showing the relationship between the applicant's debt and the security pledged toward repayment, of at least 100 percent must be demonstrated in all funding agreements.

History

Source: 23 SDR 12, effective July 30, 1996; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-61, 46A-1-83.

ARSD 74:05:10:30 Repealed

Review of financial status.** Repealed.

History

Source: 23 SDR 12, effective July 30, 1996; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:10:31 Lease agreement

Lease agreements.** If the right of use or control of real property not owned by the sponsoring entity is essential to the operation of the project during the life of the funding agreement, this right must be evidenced by written agreements between the owner or owners of the property and the sponsoring entity or by a final judgment entered by the circuit court in a condemnation action. Lease agreements may not provide for restricted use of the project or contain forfeiture or cancellation clauses except upon mutual agreement of all the parties to the lease and written approval of the board or its designated agent. Lease agreements must be written for a term at least equal to the normal anticipated life of the project or facility and must be approved by the board or its designated agent.

History

Source: 23 SDR 12, effective July 30, 1996.
General Authority: SDCL 46A-1-84.
Law Implemented: SDCL 46A-1-61, 46A-1-82, 46A-1-83.

ARSD 74:05:10:32 Repealed

Recipient accounting methods.** Repealed.

History

Source: 40 SDR 14, effective July 29, 2013; repealed, 41 SDR 173, effective May 11, 2015.

Chapter 74:05:11 Drinking water state revolving fund program

ARSD 74:05:11:01 Definitions

Terms not defined in this section have the meaning given by the Safe Drinking Water Act. Terms used in this chapter mean:

(1) "Act," "Safe Drinking Water Act," the federal Safe Drinking Water Act, 42 U.S.C. § 300f to 42 U.S.C. § 300j-26, inclusive, including the Safe Drinking Water Act Amendments of 1996, as amended to July 1, 2013; Public Law 111-88, enacted October 30, 2009; Public Law 112-10, enacted April 15, 2011; Public Law 112-74, enacted December 23, 2011; Public Law 113-6, enacted March 26, 2013; Public Law 113-76, enacted January 17, 2014; Public Law 113-235, enacted December 16, 2014; Public Law 114-113, enacted December 18, 2015; Public Law 114-322, enacted December 16, 2016; Public Law 115-31, enacted May 5, 2017; Public Law 115-141, enacted March 23, 2018; Public Law 115-270, enacted October 23, 2018; Public Law 116-6, enacted February 15, 2019; Public Law 116-260, enacted December 20, 2019; Public Law 116-93, enacted December 27, 2020; Public Law 117-58, enacted November 15, 2021; and Public Law 117-103, enacted March 15, 2022;

(2) "Affordability criteria," the expected annual residential water rate, based on five thousand gallons usage per month for municipalities and sanitary districts and seven thousand gallons usage per month for all other systems, divided by the median household income;

(3) "Assistance," financial assistance awarded by the Board of Water and Natural Resources for drinking water works pursuant to SDCL 46A-1-60.1 to 46A-1-60.3, inclusive;

(4) "Board," the Board of Water and Natural Resources acting as that board or as the South Dakota Conservancy District;

(5) "Community water system," a water system that has at least fifteen service connections for year-round residents or that serves at least twenty-five year-round residents;

(6) "Construction," any of the following procedures for drinking water works projects: preliminary planning to determine project feasibility; engineering, architectural, legal, fiscal, environmental, or economic studies, surveys, designs, plans, working drawings, specifications, or procedures; rehabilitation or development of new water sources; other necessary actions for the erection, building, acquisition, alterations, remodeling, improvement, or extension of drinking water works; the purchase of equipment; the acquisition of land integral to a project; and the inspection or supervision of any of these procedures;

(7) "Department," the South Dakota Department of Agriculture and Natural Resources;

(8) "Disadvantaged community," the service area of a community water system that meets the following criteria:

(a) For municipalities and sanitary districts:

(i) The median household income is below the state-wide median household income; and

(ii) The monthly residential water bill is forty-five dollars or more for five thousand gallons usage or thirty dollars or more for five thousand gallons usage for projects that will receive loan proceeds from the Drinking Water State Revolving Fund Emerging Contaminants funding or the Drinking Water State Revolving Fund Lead Service Line Replacement funding made available through Public Law 117-58; or

(b) For all other applicants:

(i) The median household income is below the state-wide median household income; and

(ii) The monthly water bill for rural households is seventy dollars or more for seven thousand gallons usage or fifty-five dollars or more for seven thousand gallons usage for projects that will receive loan proceeds from the Drinking Water State Revolving Fund Emerging Contaminants funding or the Drinking Water State Revolving Fund Lead Service Line Replacement funding made available through Public Law 117-58;

(9) "Drinking water works," a community water system to provide piped water for human consumption;

(10) "Emerging contaminants," perfluoroalkyl and polyfluoroalkyl substances or any contaminant in the U.S. EPA, Contaminant Candidate List 5 - Final, 87 Fed. Reg. 68060, 68063-67, (Nov. 14, 2022);

(11) "Facilities plan," an engineering evaluation that describes the need for the proposed supply, treatment, storage, or distribution project based on present conditions and future needs; evaluates the costs and adequacies of appropriate alternatives; identifies potential environmental impacts of the proposed project; and provides the selection and justification of a final alternative;

(12) "Intended use plan," a document prepared annually which describes how the board intends to use available funds for the year to meet the objectives of the Act and includes the amount of funding that will be allocated to the set-asides and a list of potential projects showing the rating for each project;

(13) "Interim financing," a loan for a term not to exceed five years which is to be repaid from the proceeds of a federal grant or loan to be made by an agency or instrumentality of the United States government for a project;

(14) "Loan," the lending of funds by the board to an eligible applicant pursuant to a financing agreement through the purchase or acquisition of any evidence of indebtedness or other obligation which is issued by the applicant and which is payable from taxes; from rates, revenues, charges, or assessments; from distributions of revenue pursuant to a state appropriation or statutory or constitutional provision; or from pledge of property or other sources;

(15) "Median household income," as identified in the U.S. Census Bureau, American Community Survey, DP03 Selected Economic Characteristics 2020: 5-Year Estimates Data Profiles, or by other statistically valid income data supplied by the applicant and acceptable to the board;

(16) "Minimum established rate," a rate charged to residential users of a water system that meets the following criteria:

(a) For municipalities and sanitary districts the monthly residential water bill is forty-five dollars or more for five thousand gallons usage; or

(b) For all other assistance recipients the monthly residential water bill is seventy dollars or more for seven thousand gallons usage;

(17) "Project," the actual erection, building, acquisition, alteration, remodeling, improvement, or extension of drinking water works, including the necessary planning, design, acquisition of land integral to the project, and purchase or installation of equipment; and

(18) "Secretary," the secretary of the Department of Agriculture and Natural Resources.

Reference: DP03 Selected Economic Characteristics 2020: 5-Year Estimates Data Profiles information is available at no cost over the internet at https://danr.sd.gov/Funding/EnvironmentalFunding/docs/2020_MHI.xlsx.

History

Source: 23 SDR 195, effective May 25, 1997; 25 SDR 93, effective January 9, 1999; 28 SDR 95, effective December 19, 2001; 29 SDR 58, effective November 6, 2002; 30 SDR 100, effective December 23, 2003; 30 SDR 170, effective May 10, 2004; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2, 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:11:02 Eligible systems

A facility is eligible for funding under the drinking water state revolving fund loan program, established in SDCL 46A-1-60.1, if the facility is:

(1) Included in the state water plan before the submittal of the application;

(2) On the intended use plan and the project priority list; and

(3) Sponsored by one of the following entities:

(a) A water user district organized under SDCL chapter 46A-9, a watershed district organized under SDCL chapter 46A-14, a water project district organized under SDCL chapter 46A-18, a sanitary district organized under SDCL chapter 34A-5, and any other lawful special purpose governmental entity that may construct drinking water works;

(b) A state agency, instrumentality, or political subdivision of the state;

(d) A nonprofit corporation or cooperative; or

(e) Any other public water system that will receive loan proceeds from the Drinking Water State Revolving Fund Emerging Contaminants funding or the Drinking Water State Revolving Fund Lead Service Life Replacement funding made available through Public Law 117-58.

A facility is eligible for interim financing under the drinking water state revolving fund program if the project sponsor provides evidence, in a form satisfactory to the board, that an agency or instrumentality of the United States government has committed to make a federal grant or loan for the project, and the proceeds of the grant or loan will be assigned to repay the interim loan.

A facility that has been funded by the board is deemed to remain in the state water facilities plan for purposes of a request by the sponsor for additional funding for the facility.

History

Source: 23 SDR 195, effective May 25, 1997; 30 SDR 170, effective May 10, 2004; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2, 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:11:03 Annual public hearing on proposed intended use plan

Preparation of the intended use plan begins after the state water plan application deadline of October 1 of each year. After completion of the proposed intended use plan by the secretary, the board shall conduct a hearing to receive oral and written comments from the public on the proposed intended use plan. The secretary shall give at least 20 calendar days' notice of the public hearing in at least three newspapers of general circulation in the state.

The board shall accept written comments during this period. After all comments are received and within 30 days after the hearing, the board shall compile and adopt the intended use plan.

History

Source: 23 SDR 195, effective May 25, 1997; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:04 Amendment of intended use plan

The board may amend the intended use plan at any board meeting if the proposed action is included on the agenda posted for the meeting.

History

Source: 23 SDR 195, effective May 25, 1997; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:05 Project priority determined by points

The secretary shall award points according to § 74:05:11:06 to determine the priority of construction needs for a drinking water works project. The priority list shall be part of the intended use plan.

History

Source: 23 SDR 195, effective May 25, 1997; 36 SDR 208, effective June 28, 2010; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:06 Project priority rating system

Each potential drinking water works project is assigned points based on the criteria in the following table:

Priority Criteria

Priority Points

(1) Occurrences of nitrates, fecal coliform, or E. Coli bacteria in samples within the past three years have exceeded the allowable limits as defined in chapter 74:04:12, and this project will address the suspected cause of these occurrences;

150 points

occurences of an emerging contaminant in samples within the past three years, and this project will address the suspected cause of these occurrences or provide an alternative water source to replace a source or sources contaminated with an emerging contaminant;

100 points

occurrences of chronic primary drinking water contaminants in samples within the past three years have exceeded the allowable limits as defined in chapter 74:04:12 or the system is in violation of a treatment technique, and this project will address the suspected cause of these occurrences or correct the treatment technique violation;

100 points

(Maximum

Points = 150)

(2) Affordability criteria:

75 points

(a) Greater than 1.0 percent for community water systems whose median household income is less than or equal to $54,000; or

(b) Greater than 1.5 percent for community water systems whose median household income is more than $54,000;

(3) Consolidation of facilities where:

(a) One or more community water systems consolidate with another community water system and the consolidation is cost effective;

50 points

(b) A community water system will receive water from another community water system but will continue to operate its water system in some capacity;

25 points

(4) Occurrences of secondary drinking water contaminants in samples within the past three years have exceeded the guidelines, and this project will address the suspected cause of these occurrences. The specific contaminants and the maximum contaminant level are:

2 points per contaminant (up to a maximum of 10 points)

chloride

250 mg/L

color

15 color units

fluoride

2.0 mg/L

foaming agents

0.5 mg/L

iron

0.3 mg/L

manganese

0.05 mg/L

odor

3 threshold odor number

range: 6.5 to 8.5

silver

0.1 mg/L

sulfate

250 mg/L

total dissolved solids

500 mg/L

zinc

5 mg/L

(5) Occurrences of total coliform in samples within the past three years have exceeded the allowable limits, and this project will address the suspected cause of these occurrences;

25 points

(6) Rehabilitation of contaminated drinking water sources or development of sources to replace contaminated sources;

25 points

(7) Development of sources if existing sources are unable to supply the peak day demand or unable to supply the peak day demand with the largest source out of service;

15 points

(8) Installation of water meters if:

(a) The meters are being installed on services that were previously not metered; or

50 points

(b) The meters being installed are replacing existing meters;

10 points

(9) Replacement of transmission lines for the following reasons (points are additive as they apply):

(a) Removal of lead piping;

30 points

(b) Decrease in water loss volume by 10% or more;

15 points

10 points

(d) Eliminating cast iron or asbestos cement pipe;

5 points

(10) Construction of storage for a system with capacity less than an average day demand or to address low pressure problems within the system, where low pressure is defined as less than twenty pounds per square inch at ground level at any point in the distribution system under all conditions of flow;

15 points

(11) The construction, upgrade, or replacement of a water treatment plant or its components to assure compliance with upcoming or existing regulations;

50 points

(12) Population points according to the following schedule based on the population of the applicant as reported by the 2020 census as prepared by the Bureau of Census, Department of Commerce:

1 to 200 persons

2 points

201 to 500 persons

3 points

501 to 1,000 persons

4 points

1,001 to 2,500 persons

5 points

2,501 to 5 ,000 persons

6 points

5,001 to 10,000 persons

7 points

10,001 to 30,000 persons

8 points

30,001 and greater

10 points.

History

Source: 23 SDR 195, effective May 25, 1997; 25 SDR 93, effective January 9, 1999; 28 SDR 95, effective December 19, 2001; 29 SDR 58, effective November 6, 2002; 30 SDR 100, effective December 23, 2003; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:11:06.01 Repealed

Green infrastructure priority points.** Repealed.

History

Source: 36 SDR 208, effective June 28, 2010; repealed, 41 SDR 173, effective May 11, 2015.

ARSD 74:05:11:07 Priority list bypass procedures

Projects will be funded based on their project priority rating. Projects with the highest priority rating that have submitted a complete application and demonstrated adequate financial, managerial, and technical capacity to receive financial assistance shall be funded before lower-rated projects. Projects on the priority list may be bypassed if they have not demonstrated readiness to proceed by submitting an application, and the next highest priority project which has submitted an application shall be funded. The department shall exert reasonable efforts to ensure that the higher-rated projects on the priority list are funded.

History

Source: 23 SDR 195, effective May 25, 1997; 25 SDR 93, effective January 9, 1999.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:08 Amendment of priority list

The board may add a project to the priority list at any board meeting if the action is included on the agenda posted for the meeting. The department shall assign points to projects added to the priority list according to § 74:05:11:06.

History

Source: 23 SDR 195, effective May 25, 1997; 25 SDR 93, effective January 9, 1999; 36 SDR 208, effective June 28, 2010; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:09 Deadline for application

Applications are due on the first day of January, April, July, and October. Applications must be postmarked or delivered to the department no later than the day on which applications are due. The department shall present applications to the board after the completion of all required technical reviews and financial analyses. The department shall notify the applicant of the board meeting at which the application will be considered by the board.

History

Source: 23 SDR 195, effective May 25, 1997; 28 SDR 95, effective December 19, 2001; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:10 Repealed

Drinking water-related project to be approved before construction.** Repealed.

History

Source: 23 SDR 195, effective May 25, 1997; 25 SDR 93, effective January 9, 1999; 28 SDR 95, effective December 19, 2001; 33 SDR 106, effective December 26, 2006; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:11:11 Amount of financial assistance

The board may award less financial assistance than the amount requested in the application or may deny assistance. If the applicant is eligible for assistance from more than one program, the board may approve financial assistance under any of the programs or under a combination of more than one program, including the consolidated water facilities construction fund program under chapter 74:05:07. If financial assistance is approved from more than one program, the amount of assistance approved may not exceed the aggregate amount of funding requested. In determining any financial assistance, the board may consider an applicant's proposed activities; ability to carry out the proposed project, including the ability to repay the financial assistance; the applicant's technical, managerial, and financial ability to maintain compliance with the Act; and the availability of funds.

History

Source: 23 SDR 195, effective May 25, 1997; 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:11.01 Principal forgiveness as part of assistance agreements

Assistance recipients that meet the minimum established rates may receive principal forgiveness as authorized by the Act in an amount determined by the board. Disadvantaged communities may receive principal forgiveness as authorized by the Act in an amount determined by the board.

History

Source: 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:11.02 Principal forgiveness amount determination

In exercising its discretion in determining the amount of principal forgiveness, the board may consider the following decision-making factors, which are set forth in alphabetical order:

(1) Annual utility operating budgets;

(2) Available local cash and in-kind contributions;

(3) Available program funds;

(4) Compliance with permits and regulations;

(5) Debt service capability;

(6) Economic impact;

(7) Other funding sources;

(8) Readiness to proceed;

(9) Regionalization or consolidation of facilities;

(10) Technical feasibility;

(11) Utility rates; and

(12) Water quality benefits.

History

Source: 36 SDR 208, effective June 28, 2010; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:12 Application requirements

. Any applicant for financial assistance shall submit an application to the board on forms obtained from the department. An application may not be considered by the board until the secretary has determined that the application is complete. A complete application must include:

(1) An application form to include:

(a) Certification of Drinking Water Needs Categories;

(b) Certification Regarding Debarment, Suspension, and Other Responsibility Matters;

(d) Capacity Assessment Worksheets for Public Water Systems;

(2) Two years of the most recent audit or financial statements to include specific accounting of the fund pledged for repayment of the loan;

(3) Current year's budget;

(4) Documentation of the current user rates and surcharges, if applicable;

(5) A resolution of authorized signatory for submittal of application and signing of payment requests;

(6) A draft facilities plan; and

(7) Amortization schedules for all existing debt secured by the proposed revenue pledged.

History

Source: 23 SDR 195, effective May 25, 1997; 28 SDR 95, effective December 19, 2001; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:11:12.01 Application review and completeness determination

The secretary shall review an application for completeness in accordance with the guidelines in § 74:05:11:12. The secretary shall notify the applicant within 30 days after the application deadline that the application is complete or incomplete. If the application is incomplete, the secretary shall identify in the notice those items required to complete the application. Except as addressed in § 74:05:11:12.02, the applicant has 20 days to provide additional information intended to complete an application. The secretary shall notify the applicant whether or not the resubmission or additional information is satisfactory to complete the application.

The secretary shall conduct an overall review of the applicant's financial status criteria and the factors for principal forgiveness decision making as identified in § 74:05:11:11.02. The secretary shall prepare a summary of the applicant's financial status and may provide a copy to the board. This summary may include an analysis of all assets and liabilities and an analysis of the applicant's financial capability as documented by the most recent audit or financial statement. The secretary shall recommend approval or denial of financial assistance. The secretary's recommendation for approval of financial assistance may include awarding any combination of principal forgiveness, loan, or partial funding from this program or in combination with other programs.

History

Source: 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 114, effective July 29, 2013.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:12.02 Facilities plan submittal

Any applicant requesting financial assistance for a drinking water project must prepare a facilities plan. The facilities plan shall at minimum provide the information contained in subdivision 74:05:11:01(11). The applicant shall be notified of any deficiencies in the draft facilities plan submitted with the application. A completed facilities plan must be received by the department to initiate the environmental review process. The facilities plan is not considered complete until the following items are received:

(1) Information to address the deficiencies identified by the secretary;

(2) Receipt of evidence of advertisement of a public hearing;

(3) Minutes from the public hearing;

(5) Resolution of any issues identified in the public hearing or by the agencies listed in § 74:05:11:12.02(4).

History

Source: 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:11:12.03 Environmental determinations

History

Source: 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:13 Eligible use of funds

Financial assistance may be awarded for projects included in the intended use plan for one or more of the following uses:

(1) Any one or more of the following items for establishing, upgrading, consolidating, or protecting the water source of drinking water works:

(a) Preparation of facilities plans or other planning documents and the DWSRF loan application;

(b) Engineering, architectural, legal, fiscal, environmental, or economic studies;

(c) Surveys, designs, plans, acquisition of land integral to the project, working drawings, specifications, equipment purchases, or other necessary actions for the erection, building, acquisition, alteration, or remodeling improvement;

(d) Construction of new drinking water works or the expansion of existing drinking water works;

(e) Operation and maintenance manual preparation;

(f) Operator startup training; or

(g) The purchase of another system's capacity pursuant to a consolidation plan to bring the system into compliance, if it is the most cost-effective solution for that system, when considering the buy-in fee and user fees;

(2) Refinancing existing debts if they were incurred after July 1, 1993, and if the debts were used to fund projects identified in subdivision (1) of this section. In addition, the projects must satisfy the statutory requirements contained in the Act;

(3) Guarantee or purchase insurance for local debt obligations;

(4) Interim financing of projects identified in subdivision (1) of this section; or

(5) Capitalized interest.

History

Source: 23 SDR 195, effective May 25, 1997; 30 SDR 170, effective May 10, 2004; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:14 Repealed

Set-asides. Repealed.

History

Source: 23 SDR 195, effective May 25, 1997; 33 SDR 106, effective December 26, 2006; 49 SDR 100, effective May 22, 2023.

ARSD 74:05:11:15 Financial security

Specific requirements to secure a loan must be included in the assistance agreement. The loan must be secured by one or more of the following:

(1) Full faith and credit of the borrower;

(2) Pledges of taxes or assessments;

(3) Pledges of facility revenue;

(4) Liens on the interest of the applicant in all real and personal property, easements, rights-of-way, water rights, and similar property rights, including leasehold interests, used in connection with the facility, whether owned at the time the loan is approved or acquired with loan funds;

(5) A security interest in the recipient's goods, machinery, inventory, equipment, and other personal property, including fixtures now owned or acquired later, together with all accessions and all substitutions and replacements; documents of title now existing or acquired later by the recipient, covering goods of any kind; accounts or contract rights now existing or arising later; instruments, documents, chattel paper, or general intangibles, including chooses in action, tax refunds, and insurance proceeds; rights to receive any payments in money or kind, or any other obligations or indebtedness owed to the recipient from any source, including guarantees of these rights; and all proceeds and products of all of the items listed in this subdivision; or

(6) For loans made for interim financing of a project, the assignment of the proceeds of the federal grant or loan to be made by an agency or instrumentality of the United States government for the project.

History

Source: 23 SDR 195, effective May 25, 1997; 30 SDR 170, effective May 10, 2004.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:15.01 Repealed

Time restrictions.** Repealed.

History

Source: 33 SDR 106, effective December 26, 2006; repealed, 36 SDR 208, effective June 28, 2010.

ARSD 74:05:11:16 Duration of assistance

The board shall set the repayment period for each assistance agreement. The maximum allowable repayment period is five years for interim financing, and 30 years in all other cases as permitted by the Act. The repayment period may not exceed the useful life of the facilities.

History

Source: 23 SDR 195, effective May 25, 1997; 30 SDR 170, effective May 10, 2004; 33 SDR 106, effective December 6, 2006; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:17 Assistance agreement interest rate

The board may set interest rates at any board meeting if the proposed action is included on the agenda posted for the meeting. The board shall set the interest rates based on the following criteria:

(1) Current market rates;

(2) Rates secured on state-issued matching funds; and

(3) Current demand for program funds.

The interest rate on the loan is 0 percent if the board determines to award a 100 percent principal forgiveness loan.

Cross-Reference: Notice of meetings of public bodies, SDCL 1-25-1.1.

History

Source: 23 SDR 195, effective May 25, 1997; 25 SDR 93, effective January 9, 1999; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:18 Loans to disadvantaged communities

The board may provide additional subsidies to disadvantaged communities in the form of principal forgiveness as provided under the Act. The board may set interest rates for disadvantaged communities below the rate set for other loan recipients. A loan for a disadvantaged community with a median household income less than sixty percent of the state-wide median household income may be awarded at zero percent interest.

History

Source: 23 SDR 195, effective May 25, 1997; 25 SDR 93, effective January 9, 1999; 28 SDR 95, effective December 19, 2001; 40 SDR 14, effective July 29, 2013; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3; inclusive.

ARSD 74:05:11:18.01 Disadvantaged loans to project sponsors acting on behalf of a disadvantaged community

A community water system that does not meet the disadvantaged criteria, if it is constructing a project to directly benefit a disadvantaged community, may receive a loan with the same additional subsidy in the form of principal forgiveness or interest rate and term that the disadvantaged community would receive.

History

Source: 28 SDR 95, effective December 19, 2001; 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:18.02 Loans to project sponsors subject to the Build America, Buy America Act provisions

The board may set interest rates for projects subject to the Build America, Buy America Act, Public Law 117-58, provisions below the rate set for other loan recipients.

History

Source: 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:11:18.03 Loans to project sponsors replacing lead service lines

A loan, or that portion of a loan, that will be used to replace lead service lines and receives loan proceeds from the Drinking Water State Revolving Fund Lead Service Line Replacement funding made available through Public Law 117-58 may be awarded at zero percent interest.

History

Source: 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.

ARSD 74:05:11:19 Repealed

Review of financial status.** Repealed.

History

Source: 23 SDR 195, effective May 25, 1997; 36 SDR 208, effective June 28, 2010; repealed, 40 SDR 14, effective July 29, 2013.

ARSD 74:05:11:20 Assistance agreements

If an application is approved for funding, the board shall execute an assistance agreement with the sponsoring entity. The board shall establish the terms and conditions included in the assistance agreement. Assistance agreements may include the following requirements of the recipient:

(1) To acquire all property rights necessary for the project, including rights-of-way and interest in land needed for the construction, operation, and maintenance of the facility; to furnish title insurance, a title opinion, or other documents showing the ownership of the land, mortgages, encumbrances, other liens, or title defects; and to obtain and record the releases, consents, or subordinations to the property rights for holders of outstanding liens or other instruments as necessary for the construction, operation, and maintenance of the facility;

(2) To provide security as required in § 74:05:11:15;

(4) To acquire and maintain insurance coverage, including fidelity bonds;

(5) To establish and maintain books and records relating to the construction and operation of the facility and its financial affairs;

(7) To use funds that remain available after all costs to the facility have been paid for needed extensions, enlargements, and improvements of the facility with the written permission of the board;

(8) Not to sell, transfer, lease, or otherwise encumber the facility, any portion of the facility, or interest in the facility without the prior written consent of the board while the funding agreement is in effect;

(10) To agree that, upon default in the payments of principal and accrued interest on the loan or in the performance of any covenant or condition, the board may, at its option, do one or more of the following:

(a) Declare immediately due and payable the entire principal amount then outstanding and the accrued interest and all costs associated with collection of the outstanding balance;

(b) For the account of the borrower, incur and pay reasonable expenses for repair, maintenance, and operation of the facility and other expenses necessary to cure the cause of default; or

(c) Take possession of the facility, repair, maintain, operate, sell, lease, or otherwise dispose of the facility to another entity; and

The board may amend assistance agreements as it considers necessary and circumstances warrant.

History

Source: 23 SDR 195, effective May 25, 1997; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:21 Disbursement of funds

The secretary shall approve all disbursements to the recipient.

History

Source: 23 SDR 195, effective May 25, 1997; 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.1 to 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

ARSD 74:05:11:22 Repealed

Retention of records.** Repealed.

History

Source: 23 SDR 195, effective May 25, 1997; repealed, 36 SDR 208, effective June 28, 2010.

ARSD 74:05:11:23 Accounting methods and audits

Each recipient must maintain accounting records in accordance with applicable financial and reporting standards as set forth in the assistance agreement. Each recipient must agree to have audits performed in accordance with applicable state and federal law, as set forth in the assistance agreement. Each loan recipient must retain all accounting records, books, and supporting material for a minimum of three years after completion of the project. Each recipient of set-aside funds must retain all accounting records, books, and supporting material for a minimum of three years after the end of the assistance agreement. These accounting records must be made available for inspection by state and federal representatives upon request.

History

Source: 28 SDR 95, effective December 19, 2001; 31 SDR 89, effective December 27, 2004; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.

Chapter 74:05:12 Brownfield's revitalization and economic development program

ARSD 74:05:12:01 Definitions

Terms not defined in this section have the meaning given by the Small Business Liability Relief and Brownfields Revitalization Act (Pub. L. No. 107-118) as amended through January 1, 2004. The following terms mean:

(1) "Act," Small Business Liability Relief and Brownfields Revitalization Act (Pub. L. No. 107-118) as amended on January 1, 2004;

(2) "Applicant," the eligible entity applying for brownfields revolving loan subfund funds to complete a project eligible under the Act;

(3) "Assistance," financial assistance awarded by the Board of Water and Natural Resources pursuant to SDCL 46A-1-102;

(4) "Award," grant or loan funds awarded by the Board of Water and Natural Resources for a brownfields project pursuant to SDCL 46A-1-100 to 46A-1-104, inclusive;

(5) "Board," the Board of Water and Natural Resources;

(6) "Borrower," an eligible public or private entity that uses brownfields revolving loan subfund funds for cleanup and cleanup related activities at an eligible site, and agrees to and complies with the terms of a loan or grant agreement between the board and the applicant;

(7) "Brownfields assessment and cleanup subfund," a subfund established to provide the department with funds to perform the assessment and cleanup of eligible brownfields sites as defined under the Act;

(8) "Brownfields revolving loan subfund," a subfund established to provide grants and loans to fund cleanup of eligible brownfields sites as defined under the Act;

(9) "Community involvement plan," a plan that is developed by the applicant to allow public participation in the selection of cleanup options for a brownfields site;

(10) "Contaminant, pollutant, hazardous substance, or hazardous material," as those terms are defined by the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the federal Superfund Amendments and Reauthorization Act of 1986;

(11) "Department," the South Dakota Department of Agriculture and Natural Resources;

(12) "Eligible site," a brownfields site as defined under the Act;

(13) "Project," the actual cleanup, treatment, containment, removal or disposal of hazardous substances, contaminants, regulated substances as defined by SDCL 34A-12-1(8), or pollutants as allowed under the Act. In addition, a project may include actions at mine-scarred lands, qualifying petroleum sites, and qualifying sites impacted by controlled substances;

(14) "Remediation plan," proposed actions to remediate a release of hazardous substances, contaminants, pollutants, petroleum, controlled substances, or mine-scarred lands as allowed under the Act;

(15) "Regulated substance," as the term is defined in SDCL 34A-12-1(8); and

(16) "Secretary," the secretary of the Department of Agriculture and Natural Resources or a designated representative of the secretary.

History

Source: 31 SDR 94, effective January 5, 2005; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:02 Development of an annual work plan

The department shall develop an annual work plan for the state brownfields revitalization and economic development program within 30 days of January 5, 2005, and by January 1 of each year thereafter. Upon completion of the annual work plan by the department, the board shall conduct a public hearing to receive comments from the public. The board shall provide at least 30 calendar days notice of the public hearing in at least three newspapers of general circulation in different parts of the state. The board shall accept written comments during this period. After the comment period is over, the board shall compile and adopt the annual work plan at the hearing.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:03 Content of the annual work plan

The work plan required in § 74:05:12:02 shall include a list of projects eligible to apply for financial assistance from the brownfields revolving loan subfund. The work plan shall establish site selection criteria and funding levels for the department to expend funds from the brownfields assessment and cleanup subfund to perform the assessment and cleanup of brownfields sites.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:04 Amendment of the annual work plan of projects

The board may amend the work plan required in § 74:05:12:02 at any board meeting if the proposed action is included on the agenda posted for the meeting.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:05 Eligibility for a brownfields revolving loan subfund grant or loan

An applicant is eligible to apply for loan or grant funding from the brownfields revolving loan subfund if:

(1) The applicant is eligible for funding under the Act;

(2) The project is eligible for funding under the Act;

(3) The project is on the annual board-approved work plan;

(4) The applicant has developed a community involvement plan as required under the Act;

(5) The applicant has developed a department-approved remediation plan; and

(6) The project has a resolution of support from the city or county where the project is located.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:06 Eligible uses of brownfields revolving loan subfund funds

Eligible brownfields revolving loan subfund activities include cleanup actions associated with removing, mitigating, or preventing the release or threat of release of hazardous substances, regulated substances, contaminants, or pollutants as allowed under the Act. In addition, these activities may include actions at mine-scarred lands, qualifying petroleum sites, and qualifying sites impacted by controlled substances including:

(1) Fences, warning signs, or other security or site control precautions;

(2) Drainage controls;

(3) Stabilization of berms, dikes, or impoundments or drainage or closing lagoons;

(4) Capping of contaminated soils;

(5) Use of chemicals and other materials to retard the spread of the release of a hazardous substance, petroleum, pollutant, or contaminant or mitigate its effects;

(6) Excavation, consolidation, or removal of contaminated soils from drainages or other areas;

(7) Removal of drums, barrels, tanks, or other bulk containers that contain or may contain hazardous substances, pollutants, or contaminants;

(8) Containment, treatment, disposal, or incineration of hazardous materials;

(9) Provisions of alternative water supply where necessary to reduce exposure to contaminated household water;

(10) Site monitoring activities, including sampling and analysis, that are necessary during the cleanup process, including determination of effectiveness of a cleanup;

(11) Costs associated with meeting public participation, worker health and safety, and interagency coordination requirements;

(12) Removal activities, including demolition or site preparation or both, that are part of site cleanup;

(13) Purchase of environmental insurance; or

(14) Other activities as approved by the Act.

Brownfields revolving loan subfund funds may not be used for precleanup environmental response activities, such as site assessment, identification, or characterization.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:07 Application requirements

An eligible applicant shall submit a brownfields revolving loan subfund assistance application for an eligible site to the board on forms obtained from the department. The applicant may arrange with the department for a preapplication conference to provide for orderly application preparation. An application may not be considered by the board until the secretary has determined that the application is complete. A complete application must include the following items, as applicable to the proposal:

(1) Application cover sheet;

(2) Budget sheet;

(3) Proposed method of financing;

(4) Project narrative;

(5) Cooperative agreements with units of local government;

(6) Letters of financial commitment from other federal, state, or local agencies or private resources;

(7) Status reports for all open and existing brownfields grants and loans;

(8) Local government resolutions;

(9) A financial statement, if requested by the department;

(10) Business plan;

(11) A department approved project remediation plan; and

(12) A community involvement plan.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:08 Application deadline

An eligible applicant shall submit a brownfields revolving loan subfund assistance application to the board on forms obtained from the department. Applications are due on the 15^th day of January, April, July, and October. Applications must be postmarked or delivered no later than the day on which applications are due. The department shall present applications to the board after the completion of all required technical reviews and financial analyses. The department shall notify the applicant of the board meeting at which the application will be considered by the board.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:09 Review of financial status

The secretary shall prepare a summary of the applicant's financial status and provide a copy to the board with the assistance application. This summary shall include an analysis of all assets and liabilities and an analysis of the applicant's financial capability.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:10 Factors for decision making

In exercising its discretion in determining whether to award funding for a project, the board may consider factors described in this section. Applicants shall compete against other applicants requesting funds. The decision-making factors include those listed below:

(1) Extent that the project facilitates creation, preservation, or addition to a park or greenspace;

(2) Extent that the project meets the needs of the community;

(3) Extent that the application has the ability to draw on other resources for cleanup funds;

(4) Extent that funding will facilitate reuse of existing infrastructure;

(5) The amount of funds available for distribution;

(6) Compliance with permits and regulations;

(7) Debt service capability;

(8) Readiness to proceed; and

(9) Technical feasibility.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:11 Decisions on applications

Within 120 days after an application is presented to the board by the secretary, the board shall by resolution either disapprove the application or approve the application as requested or as modified by the board. Modification may include awarding a loan in lieu of a grant or a grant in lieu of a loan, or a combination of each.

The department shall notify each applicant in writing of the board's decision on the application.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:12 Assistance agreements

If a brownfields revolving loan subfund assistance application is approved for funding, the board shall execute an assistance agreement with the recipient. The board shall establish the terms and conditions in the assistance agreement. Assistance agreements for loans and grants may include the following requirements of the recipient:

(1) To acquire all property rights necessary for the project including rights-of-way and interest in land needed for the construction, operation, and maintenance of the project; to furnish title insurance, a title opinion, or other documents showing the ownership of the land, mortgages, encumbrances, or other lien defects; and to obtain and record the releases, consents, or subordinations to the property rights for holders of outstanding liens or other instruments as necessary for the construction, operation, and maintenance of the project;

(2) To provide security for loans as required in § 74:05:12:13;

(3) To provide for the receipt of revenues sufficient to meet the requirements of debt service, operation, and maintenance and to establish reserves in an amount sufficient to ensure that expenses and payments are paid on time for loan installments, emergency maintenance, and replacement of assets that have a useful life less than the repayment period of the loan;

(4) To acquire and maintain insurance coverage, including fidelity bonds;

(5) To establish and maintain books and records relating to the construction and operation of the project and its financial affairs;

(6) To provide the secretary access to all books and records relating to the project and access to the property of the system so that the secretary may ascertain whether the recipient is complying with the provisions of this chapter and with the funding agreement;

(7) To use funds that remain available after all costs of the project have been paid for needed extensions, enlargements, and improvements of the project with the written permission of the board;

(8) Not to sell, transfer, lease, or otherwise encumber the project, any portion of the project, or interest in the project to a public or private entity without the prior written consent of the board while the funding agreement is in effect;

(9) If the undertaking would obligate the source of funds pledged to repay the assistance agreement, to agree not to borrow money from any source, enter into any agreement, or incur other liabilities in connection with the project, exclusive of normal maintenance, without the prior written consent of the board;

(a) Declare immediately due and payable the entire principal amount then outstanding and the accrued interest and all costs associated with collection of the outstanding balance;

(b) For the account of the borrower incur and pay reasonable expenses for repair, maintenance, and operation of the project and other expenses necessary to cure the cause of default;

(c) Take possession of the project, repair, maintain, operate, sell, lease, or otherwise dispose of the project to another entity; and

(11) To secure written approval from the secretary for any changes or modifications in the plans of a project before or during construction according to conditions and specifications set forth in the funding agreement.

The board may amend assistance agreements as it considers necessary and circumstances warrant.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:13 Financial security

Specific requirements to secure a loan must be included in the brownfields revolving loan subfund assistance agreement. The loan must be secured by one or more of the following:

(1) Full faith and credit of the recipient;

(2) Pledges of taxes or assessments;

(3) Pledges of project revenue;

(4) Liens on the interest of the applicant in all real and personal property, easements, rights-of-way, and similar property rights, including leasehold interests, used in connection with the project or the proceeds therefrom, whether owned at the time the loan is approved, acquired with loan funds, or acquired thereafter; or

(5) A security interest in the recipient's goods, machinery, inventory, equipment, and other personal property, including fixtures now owned or acquired later, together with all accessions and all substitutions and replacement; documents of title now existing or arising later; instruments, documents, chattel paper, or general intangibles, including chooses in action, tax refunds, and insurance proceedings; rights to receive any payments in money or kind, or any other obligations or indebtedness owed to the recipient from any source, including guarantees of these rights; and all proceeds and products of all of the items listed in this subdivision.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:14 Size and type of awards

The board may award an amount different than that requested in the brownfields revolving loan subfund application. The board may award grants, loans, or a combination of grants and loans. Grant awards may not exceed 40 percent of the total award. In determining the amount of financial assistance, the board shall consider the following:

(1) The availability of brownfields revolving loan subfund funds;

(2) The applicant's need;

(3) Public support for the project;

(4) Violation of health or environmental standards or a significant safety risk and how the project will minimize or correct the violations; and

(5) The applicant's ability to repay a loan.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:15 Match requirements for brownfields revolving loan subfund assistance

The recipient must provide a minimum of 20 percent match on the amount of the brownfields revolving loan subfund financial assistance. This match may be in the form of:

(1) Cash;

(2) Labor;

(3) Materials; or

(4) Other services as allowed by the Act.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:16 Time restrictions

The recipient shall expend the brownfields revolving loan subfund funds awarded to it within three years from the date the board approved the application for funding.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:17 Duration of assistance

The board shall set the repayment period for each brownfields revolving loan subfund loan in the assistance agreement, which may not exceed ten years.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:18 Assistance agreement interest rates

The board shall set the interest rate for the brownfields revolving loan subfund loans, based upon:

(1) Current market rates; and

(2) Current demand for program funds.

Based on the above criteria, the board may also adjust the interest rate at any board meeting if the proposed action is included on the agenda posted for the meeting.

Cross-Reference: Notice of meetings of public bodies, SDCL 1-25-1.1.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:19 Funds disbursement

The department shall disburse funds as costs are incurred. Payment may not exceed the percentage provided in the award agreement.

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:20 Accounting methods and audits

Each recipient must maintain accounting records in accordance with financial and reporting standards as promulgated by the Government Accounting Standards Board or Other Comprehensive Basis of Accounting as in effect November 5, 2004. Each recipient must agree to have audits performed in accordance with SDCL chapter 4-11, and if applicable, Federal Office of Management Budget Circular A-133, Audits of States, Local Governments and Non-Profit Organizations, dated June 30, 1997, as provided in the Single Audit Act of 1984, Pub. L. No. 98-502, and the Single Audit Act of 1996, Pub. L. No. 104-156. Each loan recipient shall retain all accounting records, books, and supporting material for a period of three years after completion of the project. Each grant recipient shall retain all accounting records, books, and supporting material for a period of three years after the end of the assistance agreement. These accounting records must be made available for inspection by state and federal representatives upon request..

History

Source: 31 SDR 94, effective January 5, 2005.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

ARSD 74:05:12:21 Settlement agreements

The department may enter into administrative settlement agreements with brownfields applicants and recipients to provide certain environmental liability assurances for brownfields projects as provided for in SDCL 34A-10-17. The settlement agreement is only binding if the applicant or recipient completes the remediation of the project.

If a person is conducting or has completed a response action regarding a specific release that is addressed by the response action at a brownfields site and the response action is in compliance with the State program that specifically governs the response action for the protection of public health and the environment, and there is a release or threatened release of a hazardous substance, pollutant, or contaminant addressed by the response action, the State may not take an administrative or judicial enforcement action or take an action to recover response costs against the person who is conducting or who has completed the response action or against the person's successor's in title, against the person's tenants, or against those persons who engage in operations on the property or their lender-owners regarding the specific release that is addressed by the response action unless the release or threatened release present an imminent and substantial endangerment to public health or the environment.

The State, by and through the Department of Agriculture and Natural Resources may issue a covenant not to sue on brownfields sites and contiguous real property impacted by such sites where a person is conducting or has completed a response action with certain conditions which may be revoked if the conditions are not met after notice to the parties to the covenant and an opportunity to cure. The covenant not to sue may contain a provision releasing the person who undertook the remediation and the person's successors in title and all persons who lease the property or who engage in operations on the property and their lender-owners from all civil liability to the State to perform any additional remediation, to pay compensation for damage to, or loss of, natural resources, or for any cleanup and removal costs, if certain conditions are met. Unless a covenant not to sue is revoked, liability for any additional remediation may not be applied retroactively to any person for whom the covenant remained in effect during that person's ownership, tenancy, or operation of the property. A covenant not to sue and the protections it affords does not apply to any discharge or release that occurs subsequent to the State's issuance of a no further action letter which was the basis of the covenant, or to a separate discharge, release, or threatened release. A covenant not to sue and the protections it affords does not relieve any person of the obligation to comply in the future with laws and regulations. A covenant not to sue does not provide relief from any liability, either under statutory or common law, unless otherwise specifically provided in the covenant.

History

Source: 31 SDR 94, effective January 5, 2005; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021.
General Authority: SDCL 46A-1-102, 46A-1-103.
Law Implemented: SDCL 46A-1-100 to 46A-1-106, inclusive.

Chapter 74:05:13 American recovery and reinvestment act program, Repealed

ARSD 74:05:13 Repealed chapter

CHAPTER 74:05:13

AMERICAN RECOVERY AND REINVESTMENT ACT PROGRAM

(Repealed. 38 SDR 9, effective August 4, 2011)