Call Our Firm:   605.385.0330

Commercial Transactions & Litigation, Environmental Law, Natural Resources Law, & Energy Law

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