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Archive for the ‘Managment of Water Rights’ Category
Battle Over Drainage Permit Heats Up
Mount Vernon farmer files second lawsuit to stop drainage project, while first permit could go to South Dakota’s high court
Written By: Marcus Traxler | Sep 14th 2020 – 6pm.
The matters of a Davison County drainage permit have become more entangled in the court system, with the results of the first decision being appealed to the South Dakota Supreme Court and a second permit for the same landowner drawing a new lawsuit.
John Millan filed a second permit for a drainage permit in Beulah Township on Aug. 6, which was shortly after his first permit was voided by a First Circuit Court ruling. That permit has drawn a second lawsuit from neighbor Kenneth Hostler, who filed a new suit on Aug. 31 against Millan and Davison County asking for a permanent injunction and declaratory judgment to void the new permit.
In the first court matter over the drainage permit that was initially approved in March, Judge Patrick Smith sided Hostler, writing in his decision that Millan’s initial application was missing key information in order for the Davison County Drainage Commission to make a decision. Millan and the county have appealed the first decision to the South Dakota Supreme Court, according to court documents filed Sept. 4.
In the appeal, Millan’s attorney, Gary Lestico, of the Rinke Noonan law firm in St. Cloud, Minnesota, claims among other items, that the trial court improperly considered matters outside of applicable South Dakota state law for permissible drainage of water and had erred in deciding that Millan didn’t meet his burden of proof in the permit application and erred deciding that the Davison County Drainage Commission had abused its discretion in initially granting the permit in March.
When Millan applied for another permit in early August, he sought administrative approval through Davison County Planning and Zoning Administrator Jeff Bathke, who oversees the county’s drainage processes. Bathke approved the permit on Aug. 10.
Drainage permits in Davison County can be approved by the administrator without going to the county’s Drainage Commission if they meet specific criteria. That criteria includes drainage projects that involve the county’s major creeks and rivers, such as Firesteel Creek, Enemy Creek, the James River or Dry Run Creek. The criteria also allows for approval if signed waivers are received for upstream landowners within a half-mile, downstream landowners within 1 mile and landowners within a quarter-mile of the center of the drain area. Six signed waivers, including one from Millan, were included with the permit, and based on the county’s criteria and mapping, Hostler was not a landowner who had to sign a waiver to allow the permit to proceed.
In his most recently filed lawsuit, Hostler alleges the new project application was “illegally approved.” He says the project will drain water onto his property in southeast corner of Section 19 in Beulah Township, which is located immediately to the north of Section 30, where Millan’s drainage project is planned in the southern half of the section.
“The method and place for discharging surface waters onto Plaintiff’s land in the new project is the same method and place for discharging surface waters onto Plaintiff’s land under a drainage permit voided by the Circuit Court in related litigation,” wrote Hostler’s attorney, David Ganje, of Sun City, Arizona.
The land in question is about 5 miles east of Mount Vernon and about 8 miles west of Mitchell near Interstate 90. Millan’s permit calls for 157,277 feet of drainage tile on his land, draining 320 acres of property, with the water eventually draining into Dry Run Creek.
The Davison County Commissioners decided earlier this month to retain James Davies, of Alexandria, as the county’s attorney in the matter due to conflicts involving Davison County’s staff attorneys.
Pennington County has a Missing Link
Pennington County has no surface water drainage ordinance. Land-use experts tell you that zoning law is created to protect the health, safety and welfare of the citizens of the county or community. I look at water surface water drainage law as protecting the health, safety and welfare of the land and the people who own and use the land. Good surface drainage rules will also preserve the value of the land if properly employed. What is man-made surface drainage? Man-made surface drainage is a drainage project done by digging ditches, dredging, creating channels or using drain tile.
Pennington County does have floodplain ordinances, storm water ordinances and special construction rules affecting drainage on or in designated floodplain areas. These rules also deal with construction and relocation of roadways. These are specialized rules. And the rules do not cover the whole of the county. Pennington County is 2700 mi.² That’s half the size of the state of Connecticut, but most of the people in Pennington County are more pleasing than a good number of people I have met from Connecticut. In mixed rural and urban counties, including Pennington County, landowners sometimes employ water retention techniques to minimize runoff.
When considering surface water drainage law I recognize that South Dakota has established state statutes and well respected case law which addresses some of the principles of surface drainage rights, duties and responsibilities. This state- wide law however does not have the beneficial effect of home rule. And the state-wide law does not come close to perfection. No set of laws do.
What’s the missing link in Pennington County? No home rule overseeing surface drainage issues. I will list advantages of a home rule meaning an ordinance dealing with countywide drainage. Most county drainage ordinances in South Dakota include the obligation of the party who wishes to create a new drainage system project to advise the affected landowners downstream. In other words, before a drainage permit is considered by the county, the affected landowners are notified of the possibility of more water coming down the pike. That advance notification requirement is not found, by way of example, in state law. County drainage ordinances also often provide for written consent agreements. These are so-called written waivers given in writing by landowners who may be servient landowners or who are otherwise affected by a new drainage project. A provision in an ordinance encouraging cooperation among landowners before a drainage project is started encourages peace. That’s a good thing – I have handled water disputes in which the sheriff was involved. This consent provision is also not found in state law. I also find typical South Dakota surface drainage ordinance requirements include notification in advance to affected landowners. And not just to the immediate neighbor who may be the adjoining neighbor but to those who may be affected for a distance of 1/2 to 1 mile. This makes sense. This allows an effected landowner to participate in a public permit application process. Advanced notice and participation provides a more balanced picture to a board deciding a surface drainage permit application. Another advantage of a local ordinance is the requirement that the project design and other physical characteristics of the drainage proposal be disclosed to the county. This is a missing link in a reasonable chain. A surface drainage ordinance gives a good amount of environmental project decision making to local government. If the ideal is to allow more local control of decisions affecting local property a missing link can be added.
In surface water there are two categories of landowners or so called two categories of land. Land is put in classes. This is a legal form of profiling. There are them what gives and them what gets. Them what gives: Dominant estate – Any parcel of real property, usually at a higher elevation, which holds a common law or statutory legal right to drain water onto other real property. Them what gets: Servient estate – Any parcel of real property, usually at a lower elevation, which is subject to a legal right allowing a dominant estate to drain water onto the lower parcel, that is the so-called servient estate.
David Ganje practices law in the area of natural resources, environmental and commercial law with Ganje Law Office. His website is Lexenergy.net.
David L Ganje
Ganje Law Offices
Web: lexenergy.net
605 385 0330
Two proposals for managing water sources
The state Water Management Board (WMB) was created in 1955. The legislature gave authority to the WMB with supervision of the waters of the state, including measurement, appropriation, and distribution of waters. The WMB consists of seven members appointed by the governor.
In this column I argue that the exercise of good water management choices is absent on the two subjects I discuss. I do not challenge the professionalism or commitment of the staff of the Department of Environment and Natural Resources (DENR). Nor do I criticize the good faith of the WMB whose members consist of volunteer citizens of the state appointed with the legal authority to decide who should have and who should be denied a permit to appropriate the waters of the state. I discuss two issues under which the WMB is given leadership with the assistance of the DENR.
Waters of the state are held in trust for the benefit of all the residents of the state, making members of the WMB legal trustees acting on behalf of the citizens of the state. Board members are charged with protecting and managing the state’s water supply for both surface and groundwater.
The following are the two issues reviewed in this opinion piece as well as my proposals. On the first issue the Board should require a permit applicant’s disclosure of past violations or bad acts. On the second issue the Board should require that large-quantity water use applicants provide a report showing that a permit, if granted, will not harm the recharge of the particular aquifer that is to be permitted.
The first problem: Water use permit applications do not require disclosure of past bad acts or of an applicant’s business relationship with other operations that may have had violations of the law. A properly drafted “bad actor” rule would allow the WMB to deny permits to applicants with a record of law violations or who have had poor compliance with other agency directives or rules. The state DENR enforces a law in another area of permitting (concentrated animal feedlot operations, with the acronym CAFO). Under this law an applicant must disclose material information on their permit paperwork. Bad actors cannot hide when making a CAFO permit application. However the WMB has no such rule for water permit applications. It should. The WMB has rulemaking authority to do this.
The second problem is one I have addressed before. It is not new advice. However your humble practitioner’s prior recommendation has fallen on deaf ears. A particular South Dakota statute requires the WMB to determine that the average estimated withdrawal of groundwater by an applicant does not exceed the average estimated annual recharge of water in the aquifer to be used. A circuit court a few years ago ruled that using historical data from existing state observation wells does not fulfill the requirements of the statute. In that case the court said that the statute “requires not only analyzing existing and historic drawdown and recharge to the [permitted] aquifer, but also how the applicant’s [requested] drawdowns will affect the recharge to the aquifer.” The judge ruled that the WMB’s findings which show a draw of 720,000 gallons per day failed to take into account what affect the use of 720,000 gallons per day would have on the particular aquifer. The court noted that a recharge study of the subject aquifer was not included in the permit application. The court reversed the approval of the permit given by the WMB.
And just this year the WMB approved a large-quantity groundwater permit without requiring a recharge study. Such a study should take into account what effect the applicant’s use has on the particular aquifer. The approved applicant in the recent matter would be able use up to 30,000 gallons per hour when pumping. In granting the permit the WMB relied on state observation wells and historical data without a specific report showing what the recharge would be on the identified water source. I previously recommended that a water permit applicant, who will use large quantities of water, provide an aquifer recharge study as a required part of the application process. For a sustainable system the amount of water withdrawn from a particular aquifer should be balanced with the amount of water returned (recharged) by nature to that particular aquifer. The state’s existing water use policy which forbids the “mining” of the public’s water would be better served by requiring this specific water information. The requirement for a recharge study does not exist in the state’s current water code or in WMB rules.
The WMB, as an agent of the people, has general supervision of the waters of the state which includes measurement, appropriation and distribution. The duty of an agent is to guide the events in his control to a good result. The WMB is empowered with authority to establish procedures and criteria for issuing water permits. I have tendered two proposals which should be adopted by the WMB.
David Ganje practices in the area of natural resources, environmental and commercial law.
Will The Legislature Make A Constitutional Correction?
The government’s control of property — for a public road, for a pipeline right-of-way, or by the declaration of non-meandered waters as subject to public access — are examples of a government taking. The concept of a government ‘taking’ should not be considered literally. This would be a grave, although common, mistake made by legislatures and the public alike. If an owner is to be granted compensation from a government only when there is a visible grabbing of a chunk of one’s property, the constitutional right to just compensation would be reduced to only land grabs. A taking by a government means more than an old fashioned land grab. When a property owner lives with a discernible deprivation in the ordinary use of his property, or when the value of the property is diminished in other significant ways by an act of government, this can be a ‘taking.’
Takings occur even without a formal government-filed lawsuit for the condemnation of property. A private landowner may in his own name claim that a taking has occurred. “Inverse condemnation” is a lawsuit brought by a private property owner to recover the value of property ‘taken’ for public use by a governmental even though no formal condemnation proceedings under a government’s power of eminent domain were filed. A taking can occur when a governmental with the power of eminent domain takes action which destroys, interrupts, or interferes with significant use or the value of real property owned by a private property owner. In a taking there must be substantial interference with the beneficial use and enjoyment of a private property owner’s property. In South Dakota there does not have to be a physical invasion of the property for damages to occur. Damage to property is compensable under the SD Constitution. The South Dakota Supreme Court has ruled, “Our case law provides that the “damage” clause in our State Constitution affords more rights to our citizens than the Fifth Amendment to the Federal Constitution.”
A state legislature can go too far in regulating public trust properties. Public waters in SD are held in a public trust for the benefit of the citizens of the state. Even so, a state legislature or state agency may go only so far in declaring and setting public trust rules. The state legislature in the special session of 2017 went too far. The legislative opposite of fairness and equity is not arbitrariness; but rather it is legislative indifference. Without taking recommendations suggesting the use of property setback rules and quiet time rules to protect private landowners with land on and surrounding the waters, the legislature opened up non-meandered lakes. The new statute creating public access has no provision for setback from private property or quiet time zones to protect private property from a 6 a.m. gas-powered ice auger drilling fishing holes in the water next to farm property. This indifference to private property rights runs up against the state constitution which protects not only the confiscation of private property but the damaging of the value to private property.
The legislature has the power to change law to conform to current standards and public needs but private property cannot be reduced in value or damaged without due process of law. The 2017 non-meandered law provides no compensation for property owners whose property has been burdened by establishing public use of the waters. The new law violates the constitutional prohibition against the damaging of private property without just compensation. Giving certain lake bed owners the vague right to ‘petition’ the state Game Fish and Parks to set some future limitations on use of the waters is an onerous, burdensome and unacceptable way of giving lip service to property rights. The South Dakota Supreme Court has stated that there is no magic formula that enables a court to judge whether a given government interference is a taking. I submit that the lack of provision for a minimum setback from dwellings or confined livestock for sportsmen activities on the waters, and no provision for a quiet time from sportsmen activities near dwellings and confined livestock constitute a taking. The Wisconsin Supreme Court has also said that a taking can occur when there is a direct and immediate effect on the use and enjoyment of property. Will the SD legislature make a constitutional correction and amend the law? As President Trump says, ‘Time will tell. Time will tell.’
David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.
