South Dakota’s Achilles Heel

South Dakota’s surface water drainage governance is an absolute mess. You can’t put a fence around field drainage but you sure can create angry neighbors by field drainage. The state has authorized study commission after study commission, and created agency upon agency to address water management: Conservancy Districts, Water Development Districts, Water Project Districts and Water User Districts. The first state Supreme Court case dealing with a dispute over surface drainage occurred in 1910. And law disputes keep on coming. Many years ago when I was a kid, Ka Squire of Aberdeen took my dad and me up in his plane in a wet year and showed us the amazing picture below— overflowing sloughs, potholes, creeks and streams. I looked down at water everywhere and asked him, where does this water go? “On the neighbor’s property,” he said. So it is today in any wet year. Nothing has changed. The state still provides no functional, practical surface water management.

Prior to 1985, water drainage law slowly adapted through a series of court cases. In 1985, the Legislature codified drainage standards in the hopes of creating guidelines for landowners and counties to follow. Under the little-used 1985 law, counties are given wide discretion in how to apply the law. In a failed effort, the 1985 law gives each county the option of managing local drainage issues and/or adopting a county-wide drainage plan. Yet the truth is most counties have not developed drainage plans or drainage management rules. Modern technology and topographic data would have allowed counties to write comprehensive drainage plans and then create good drainage ordinances. But such was not to be the case.

The current attempt to fix this long-standing problem passed this year. Based on yet another authorized study started in 2012, the legislature this year passed Senate Bill 2. Senate Bill 2 created a task force to define boundaries for nine new Water Districts, establish procedures and protocols, and get pilot projects operational.

Originally, Senate Bill 2 provided the proposed new elected Water Districts with the ability to tax, create drainage plans and approve drainage projects. Such substantial terms did not make it in the final version of Senate Bill 2. So, “What is the point?” Special interests and lobbyists obviously got ahold of this bill and gutted it. Without the ability to create comprehensive plans, approve drainage projects, including installation of tile drainage systems, how will new Water Districts solve current disputes or fix drainage problems? Why continue to lollygag around? Drainage has been a problem in the state for over 100 years.

Establishing individual Water Districts is not unique to South Dakota. Other states with delicate water-use issues have utilized such a system for many years. The experiences of neighboring states of North Dakota and Minnesota provide an interesting contrast to the current problems in South Dakota.

North Dakota in particular has an especially comprehensive regulatory scheme in place. For example, its rules require that a person secure a drain permit before draining a pond, slough or lake which has a watershed area comprising eighty acres or more. North Dakota also prohibits the granting of a permit to drain water until an investigation discloses that the quantity of water which will be drained will not flood or adversely affect downstream lands. North Dakota has specifically addressed the issue of tile drainage. The state allows tiling of up to 80 acres without permit, and places burden on water district or downstream landowners to demonstrate State-wide significance or adverse effects.

North Dakota has uniformly codified requirements to be considered in evaluating whether to grant a drainage project permit, such as the volume of water to be drained, the impact of the flow on the watercourse, potential adverse effects, the project’s impact on flooding problems in the project watershed, and more. In North Dakota, it is clear that drain permits may only be issued if the Water Board’s investigation reveals the water flowing through such drain structure will not flood or adversely affect lands of downstream landowners.

Creating both a real, authorized, local governing body as well as drainage guidelines are necessary to fix drainage problems. There are plenty of modern court cases showing that drainage conflicts continue. A new drainage roadmap has been in order since the failed 1985 law was put in place. The conditions followed in North Dakota serve as a model. Yet, that is not to say that South Dakota should simply copy the plan followed by its northern neighbors. However, the comprehensive and uniform nature of North Dakota’s scheme – specific, clear guidelines with permitting power vested in Water Districts – is needed.

Senate Bill 2 lacks teeth. It has been 30 years since the prior failed 1985 law was passed. Too much time and too many studies have been taken. The new Water Districts should be given authority to write water plans, write water ordinances, grant or deny permits and function as a real agency, or not exist at all.

by David Ganje.