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Dewey Burdock: Will South Dakota relinquish its responsibility?

Posted on: August 24th, 2020
by David Ganje

Powertech (USA), Inc., a wholly owned subsidiary of Azarga Uranium Corp., is a uranium mining company with pending applications to several state and federal boards and agencies for the development of an in situ uranium mine operation in Custer and Fall River Counties. This project, known commonly as the Dewey Burdock project, would be the most significant mining operation in the state in the last twenty years.  The project is an in situ uranium mining operation which would use local groundwater aquifers for uranium extraction, and for the subsequent disposal of process-related liquid waste. 


The mining project has been in the application stage since 2009. No final mining authorization has been granted by the various government agencies with jurisdiction over licensing, mining and water permits.  Important issues remain outstanding and undecided.  The wheels of justice, it is said, grind slowly but grind exceedingly fine.  Let us see.

Some of the government agencies with authority to issue major regulatory permit approvals necessary for this project include the Nuclear Regulatory Commission,  the Environmental Protection Agency, the Bureau of Land Management, the SD DENR,  the SD Board of Minerals and Environment, and the SD Water Management Board.  In this opinion piece I limit my comments to only part of this complicated dance of the multitudes.  This piece discusses state protection of water sources.  I treated financial and decommissioning issues and background questions regarding water resources in other opinion pieces.

When several agencies are involved in approval of a single project, a board might relinquish its responsibilities by narrowly interpreting the scope of its authority or by deciding not to exercise authority as a matter of discretion.  Complex and fragmented multiple-agency oversight of a big project runs the risk of a board’s over-reliance on the authority or expertise of different government agencies.  This is a dangerous form of decision-making.  For South Dakota boards to defer their legal obligations on significant natural resource issues to other government agency’s inclinations is an ill-advised undertaking.  He who sups with the devil must bring a long spoon.

As a result of the fragmented multiple-agency oversight, I am concerned South Dakota’s boards may limit their existing and established authority.  It is an established principal that state laws which do not directly interfere with (read preempt) the operation of federal programs or federal laws continue to be valid and enforceable by the state.

In the Powertech uranium mining procedure the SD Board of Minerals and Environment stated it has a “limited jurisdictional role in this matter especially where the principle of “dual regulation” would prevent the Board from acting.”  Powertech has argued in favor of such Board deference to other non-state agencies.  Powertech asserted the Board should consider the EPA’s actions as strong evidence that the proposed project water use is beneficial and in the public interest; and also argued the NRC’s license to Powertech is “compelling evidence” that Powertech’s proposed use of state waters is beneficial and in the public interest.  Nevertheless, South Dakota boards are required by established state policy and by statute to conserve groundwaters of the state and maintain the quality of groundwaters for present and future beneficial uses through the prevention of pollution and the control of water degradation.  These are considerations within the clear jurisdiction of South Dakota, its agencies and boards.

Let us look at some steps taken, or not taken, to protect groundwater in the area of the project.  First consider these comments by staff members of the U S Geological Survey given in 2009 paper at an international uranium symposium, “To date, no remediation of an ISR [in situ uranium mining] operation in the United States has successfully returned the aquifer to baseline conditions.”

Regionally, near the project site, four principal aquifers are used as major sources of water supply.  Several permits for use of water are pending before different agencies.  Two requested water-rights-withdrawal permits are pending before state boards.  The two water permit applications request the right to withdraw 8,500 and 551 gallons per minute. The Powertech application indicates most of the water withdrawn will be continuously reinjected as part of the mining process.  Shouldn’t the water quality of reinjected water be tested before it is reinjected?  It is unclear how much water is to be reinjected.  Should not such requirements be included before granting a permit approval? 

In its June 2012 Water Permit Application, Powertech acknowledged there are no aquifer baseline tests completed by the applicant at the project site.  Powertech argued that pre-licensing monitoring wells are not permitted until after a license is issued.  However, the NRC Licensing Board in 2012 in a separate mining application ruled that wells intended to collect background data or for background aquifer testing are permissible and are not considered the construction phase of a project.  Why should water and mining permits be granted without the benefit of the results of such tests?  As the reader will learn, South Dakota also has the authority to require this type of baseline aquifer testing before a permit is considered or granted.

The DENR recommended approval of Powertech’s general mining permit to the SD Board of Minerals and Environment.  As a part of its recommendations and conditions the DENR suggests that in the event there is a violation of ‘water quality standards’ Powertech should then be required to develop and submit a site-specific mitigation plan.  A contingency mitigation plan for possible water quality events should be a precondition to filing any large mining permit application. 

The filed Powertech water applications report that groundwater restoration or aquifer restoration will be performed under any NRC requirements.   Powertech will be required by its NRC license and federal regulations to restore groundwater quality to a) pre-operational baseline water quality, b) federal drinking water standards, or c) an alternate concentration limit approved by the NRC as protective of human health or the environment.  The NRC concluded, apparently without any baseline testing by Powertech on aquifers at the site, that the applicant’s proposed groundwater restoration methods will restore groundwater to ‘federal’ standards.  This is an indirect assurance concerning the protection of state waters.  Trusting too much to Big Brother invites one to become an agent of Big Brother.   At a minimum South Dakota should have requested baseline testing.  In addition, a legal mechanism known as an MOU (Memorandum of Understanding) allows a state such as South Dakota to take responsibility for regulation concerning groundwater protections. 

In a well-written legal brief by its attorneys, Powertech argued in 2013 that South Dakota does not have authority to regulate most aspects of uranium mining.  That position was not correct law then and is certainly in error today.  In 2019 the U S Supreme Court in a uranium mining case upheld a state mining law and ruled that federal law does not preempt state mining law.  Justice Gorsuch stated, “But Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on private lands within their borders.”  This places all the more focus on South Dakota to do the right thing. 

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

davidganje@ganjelaw.com

Final Judgement Drainage Dispute

Posted on: August 12th, 2020
by David Ganje

17CIV20-000087_FINAL-JUDGMENT-ON-DECISION-BY-COURT.pdf-Hostler

Kenneth Hostler vs Davison County Drainage Commission

Posted on: July 28th, 2020
by David Ganje

This matter came before the court following plaintiff Kenneth Hostler’s motion for summary judgment filed through his attorney David Ganje.  A hearing was held on June 16, 2020, in the Davison County Courthouse and supplemental briefing was ordered and said briefs due on July 2, 2020. The attorney for the Davison County Drainage Commission, Jim Davies, appeared in person while attorney for Defendant John Millan, Gary Leistico and plaintiff’s attorney David Ganje appeared telephonically.  The court having now received and reviewed all briefs and heard the parties’ arguments now issues this memorandum decision.

FACTS AND ANALYSIS

Plaintiff brought this suit under SDCL § 46A-1 0A-35, alleging the Davison County Drainage Commission abused its discretion in granting a drainage permit to John Millan. The plan approved by the Commission would drain water onto plaintiff’s property through drain tile on Millan’s property. Plaintiff alleges the Commission received inadequate evidence to grant Millan the drainage permit and failed to make the proper findings prior to granting the permit.

The South Dakota Supreme Court has given the following standard for summary judgment:

Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Discover Bank v. Stanley, 2008 SD 111,  · 16, 757 N. W.2d 756, 761 (internal citations omitted).

Unless an action by the Commission is quasi-judicial in nature, the standard of review of the Commission’s decision is an abuse of discretion standard. Carmody v. Lake County Board of Commissioners, 2020 SD 3, 16, 938 N.W .2d 433, 438. This case arises from the Commission ‘s granting of a drainage permit to Millan, which is not a quasi-judicial administrative action, meaning the court reviews the Commission’s decision to grant the permit under an abuse of discretion standard. See Carmody , 2020 SD 3,    29, 938 N .W.2d at 442 . Under this standard, the court ‘s “review is limited to ‘whether the [Board] acted unreasonably, arbitrarily, or … manifestly abused its discretion.” Carmody, 2020 SD 3,     30, 938 N.W.2d at 442 (quoting State o/ South Dakota, Dep ‘t of Game, Fish and Parks v. Troy Twp., 2017 SD 50, ii 17, 900 N.W.2d 840, 848). “The arbitrariness standard is narrow, and under that standard, a court is not to substitute its judgment for that of an agency.” Carmody, 2020 SD 3,    30, 938 N.W.2d at 442 (quoting Troy Twp., 2017 SD 50,  33, 900 N.W.2d at 852-53).

In enacting SDCL § 46A- I OA-20, the legislature gave the individual counties the power to enact ordinances and regulate drainage within their respective boundaries. That section states:

Official controls instituted by a board may include specific ordinances, resolutions, orders, regulations, or other such legal controls pertaining to other elements incorporated in a drainage plan, project, or area or establishing standards and procedures to be employed toward drainage management.  Any such ordinances, resolutions, regulations, or controls shall embody the basic principle that any rural land which drains onto other rural land has a right to continue such drainage if:

  1. The land receiving the drainage remains rural in character;
  2. The land being drained is used in a reasonable manner;
  3. The drainage creates no unreasonable hardship or injury to the owner of the land receiving the drainage;
  4. The drainage is natural and occurs by means of a natural water course or established water course;
  5. The owner of the land being drained does not substantially alter on a permanent basis the course of flow, the amount of flow, or the time of flow from that which would occur; and
  6. No other feasible alternative drainage system is available that will produce less harm without substantially greater cost to the owner of the land being drained.

Such provisions do not necessarily apply within municipalities, but if a municipality drains water onto rural lands lying outside the boundaries of the municipality, the municipality is subject to the above provisions, if adopted by the board.

S.D. Codified Laws § 46A-1 0A-20. In accordance with this statute, Davison County has enacted its own drainage ordinance. Section 2.03 of the Drainage Ordinance of Davison County states:

Prior to the commencement of work, drainage permits are required for, but not l limited to the following:

  1. Construction or installation of a new surface (open ditch) or closed drain (tile).
  2. Any draining or filling, in whole or in part, of a pond, wetland, or lake.
  3. Construction of any lateral drain to a current legal drain.
  4. Modification of any permitted drainage with the intent of deepening or widening any drainage channel, increasing the size of any drainage tile, or extending, altering, or rerouting the drainage work in any way.
  5. Improvements to a drainage district or a coordinated drainage area which were not included in the original plans.
  6. Any drainage work completed inside municipality boundaries which will drain into the county.

Davison County Drainage Ordinance § 2.03. Section 2.05 of the Draining Ordinance of Davison County states:

At a minimum, the following factors shall be considered in evaluating the impact of a proposed drainage project:

  1. Flood hazard zones.
  2. Erosion potential.
  3. Water quality and supply.
  4. Agricultural production.
  5. Environmental quality.
  6. Aesthetics.
  7. Fish and wildlife values.
  8. Considerations of downstream landowners and the potential adverse effect thereon including consideration of the following criteria:
    • Uncontrolled drainage into receiving watercourses which do not have sufficient capacity to handle the adverse effect.
    • Whether drainage is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or in the absence of a practical natural drain, a reasonable artificial drain system is adopted.
    • The amount of water proposed to be drained.
    • The design and other physical aspects of the drain.
    • The impact of sustained flows.

Davison County Drainage Ordinance § 2.05.

In this case, while § 2.05 of the Davison County Drainage Ordinance requires the Commission to evaluate the plan ‘s impact on “Fish and wildlife values, “there is no evidence in the record to indicate the Commission considered such values prior to granting the permit. In fact, the presence of a federal wildlife easement on Millan’s land was not made part of the permit application and was not presented to the Commission at the hearing.

Millan argues that the presence of the federal wildlife easement on one of his properties does not render his permit for the proposed plan invalid because its presence simply means he will be placing less drain tile than what was approved by the Commission. However, this argument overlooks the Davison County ordinance which requires a permit for “Modification of any permitted drainage with the intent of deepening or widening any drainage channel, increasing the size of any drainage tile, or extending, altering, or rerouting the drainage work in any way.” Davison County Drainage Ordinance § 2.03(4). There is no language the court can find which states the Commission approves a maximum amount of drain tile and the laying of any amount of tile fewer than the maxim um does not require a new permit. Certainly, placing less drain tile than outlined on the plan approved by the Commission would constitute a modification of the pem1itted drainage by “altering…the drainage work in any way.”

Millan presented an application that lacked called-for information regarding the standards and conditions required to be considered by the Commission in evaluating a drain tile project.

Millan did not include the elevations of the inlet and outlet locations in his application, nor was this information presented at the hearing or incorporated in the Commission’s findings or decision. The application is silent where it requests “Elevation change from the inlet to the outlet (feet).” (Certified Application, Exhibit A at pgs. 4-5). The application did not show the destination for the water up to one mile, nor did it depict all of the inlet locations.

No data was presented at the hearing about the capacity of plaintiff s land or Dry Run Creek to handle the flow of the proposed water drainage. The application did not provide evidence concerning the volume of water the project drains. While this court makes no finding as to whether the permit should be granted upon reapplication, it is instructive for the Commission  in so determining, that according to the Supreme Court, “it is impermissible  for a dominant landowner to collect surface waters, and then cast them upon the servient estate in ‘unusual or unnatural quantities.”‘ Rumpzav. Zubke, 2017 SD 49,  12, 900 N.W.2d 601, 605 (quoting Winter/on v. Elverson, 389 N.W.2d 633, 635 (S.D. 1986)). “This is true even if the total volume of water remains the same.” Id. “Surface water cannot be gathered together and cast in a body on the property of the lower owner as to affect that neighbor ‘s land in some other way than the way in which it has been affected.” Id. (quoting Feistner v. Swenson, 368 N.W .2d 621, 623 (S.D. 1985)).

Missing from the application and not presented at the hearing in front of the Commission were those requirements designed to protect the interests of the surrounding landowners. If it is Millan’s intention to install 315,000 feet of drain tile intended solely to remove surface water onto servient lands, the application should provide all the hydrological evidence called for in the application, which must be presented to the Commission for its consideration. to protect the interests of all property owners in the area.

Therefore, because the Commission did not consider evidence on all the factors which the Davison County Drainage Ordinance requires be considered prior to granting a drainage pennit, the Commission abused its discretion in granting the permit. Also, Millan has not submitted a new application for a drainage permit and this is required under § 2.03 because placing less drain tile would not be in conformity with the plan the Commission approved.

Upon the filing of a new application for a drainage permit by Millan, the Commission should now have notice of the presence of the federal wildlife easement and should also consider all other factors which it is required to consider under its own drainage ordinance and state law.

CONCLUSION

Plaintiffs motion for summary judgment is granted. Parties are invited to submit any findings they determine necessary under the rules of procedure, and the prevailing party shall submit an order incorporating this opinion and granting the motion.

Dated this 28th day of July 2020.

By the COURT: Hon. Patrick T. Smith, First Circuit Court Judge, State of South Dakota

Pennington County has a Missing Link

Posted on: June 11th, 2020
by David Ganje

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

davidganje@ganjelaw.com

Property Rights and Water Rights

Posted on: April 9th, 2020
by David Ganje

Website: lexenergy.net
Phone: 605-385-0330
Fax: 605-385-0330
davidganje@ganjelaw.com

DAVID L. GANJE
ATTORNEY AT LAW
GANJE LAW OFFICES
17220 N Boswell Blvd
Suite 130L
Sun City, AZ 85372

______________________________________________________________________________

March 27th, 2020

Via Mail and Email

Chairperson
Davison County Drainage Board                                 
200 E. 4th Ave.
Mitchell, SD 57301-2631

Davison County Planning and Zoning Administrator    (via email)

Davison County Auditor    (via email for distribution to parties in interest)

RE: John Millan Permit (Parcel) Number: 03000-10361-301-00, 03000-10361-292-00, 03000-10361-303-00, and 03000-10361-304-00

Dear Chairperson, members of the Davison County Drainage Board and other interested parties:

  1. By way of introduction I represent Kenneth Hostler of 39872 252nd St, Mt. Vernon, SD 57363 with regard to a pending drain tile permit application filed with Davison County by an applicant described in the permit application as follows  “Name: Millan, John  Address: 25563 406th Ave. Mitchell, SD 57301” with a date of February 27th, 2020.  My client owns affected land described as the southeast Quarter of Section 19 Range 61 West in Davison County South Dakota.  The Drainage Board held a hearing on the application on March 17th, 2020.  Upon information received, the Board made a tentative, non-final decision to grant the permit. As of now, the Board’s informal decision to grant the permit has not been formalized.
  2. My client’s property and legal rights are prejudiced by the described drainage project application. I respectfully report to the Drainage Board and Davison County that the formal granting of this drain tile permit application would be an error of law. The permit should not be granted.
  3. The Board and interested parties should be aware of legal problems and issues with the permit application and the Board’s process regarding the application and hearing, even though I have yet to be favored with information that I requested from the county on this matter.  This letter is not intended as an exhaustive discussion of the problems and legal issues.
  4. The hearing on the Millan drainage project, including its process, denied my client due process under the South Dakota and United States Constitutions.
  5. The applicant did not provide information, data, analysis and facts on the matters listed below, which are all legally required by both due process of law and by the plain language of the Davison County Drainage Ordinance. 
  6. The below requirements at a. through h. were not in the application and were not discussed at the hearing by the applicant and the Board.  Further, the Board’s findings and decision did not consider the following relevant, required information, analysis,  data and facts:
  • a. Flood hazard zones
  • b. Erosion potential
  • c. Water quality and supply
  • d. Agricultural production 
  • e. Environmental quality 
  • f. Aesthetics
  • g. Fish and Wildlife values
  • h. Considerations of downstream landowners and the potential for adverse effect thereon including consideration of the following criteria:
  • i. Uncontrolled drainage into receiving watercourses which do not have sufficient capacity to handle the additional flow and quantity of water shall be considered to have an adverse effect.
  • ii. Whether drainage is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or in the absence of a practical natural drain, a reasonable artificial drain system is adopted.
  • iii. The amount of water proposed to be drained.
  • iv. The design and other physical aspects of the drain.
  • v. The impact of sustained flows.
  1. The project, as planned, will cause surface water to flow in unnatural quantities over and onto my client’s property to reach Dry Run Creek. The application states the outlet distributes collected water from lengthy drain tile, which then “flows into Dry Run Creek.”  The proposal is to have the water flow over and onto my client’s property and then into the described creek, Dry Run Creek, which is on my client’s real property.
  2. The location of the outlet just south of my client’s real property will result in excessive and unnatural distributions of surface water onto my client’s agricultural lands, which are used for crop production, given the total linear feet of drain tile proposed in the application.
  3. The application provides the following representations regarding the project: Length of Solid Drain (Feet) is I5,000; the Length of Perforated Drain (Feet) is 300,000 and with a Total Length of all Drain (Feet) of 315,000. The application contains no adequate disclosure of the amount of water to be drained. The applicant’s response to the county’s required “Explanation of Drain Design” states that it is to “Improve farm ground to increase yields.”  These limited representations do not provide enough information from which a reasonable person could make a decision concerning the drain tile permit application.  And among other deficiencies, the application does not explain how the applicant’s project would comply with drain tile industry standards.
  4. County officials considering granting a permit for land-use under the Davison County Comprehensive Plan are to rely upon scientific and technical sources in evaluating the proposed use.  That was not done in this matter.
  5. The ambiguity of the project as described by the applicant prevented the Board from analyzing its potential impact. For example, the project has an “outlet into [1] unnamed intermittent stream which goes into SD DOT ROW and north across interstate into [2] unnamed intermittent stream which outlets in NE ¼ of Sec 30[.]” This can be read as to mean the first unnamed intermittent stream carries surface water directly into the second intermittent stream. Or it can be read to mean the first intermittent stream goes through the interstate and into the SD ROW, which then channelizes water towards and into the second intermittent stream. A reasonable person cannot make an informed decision from this information.
  6. Upon information and belief the named applicant, John Millan, is not the legal owner of the real properties proposed to be tiled in the application.  An approval of a permit under these circumstances indicates a failure of due diligence in analyzing the tile drainage project and the pending application.  It also indicates that an incomplete and inadequate application has been submitted the Board.
  7. The Board acted arbitrarily in preliminarily granting the permit before considering the factors it was required by law to review. The project if approved will cast unreasonable quantities of water onto my client’s property.
  8. The comments and discussion contained in this letter should not be construed as a waiver of any additional claims or issues of my client not stated.  Nothing in this letter operates as a waiver or release of my client’s legal rights, remedies, powers or privileges including the right to assert other claims.  My client reserves all legal and equitable rights in full with respect to this matter.

                                                                                 Sincerely,

                                                                                David L Ganje

Cc: to applicant