By David Ganje, Ganje Law Offices
Editor’s note: This article originally published in the Farm Forum in 2013.
Many are searching for a solution to the continuing problems and conflicts on the subject of water drainage in South Dakota. As reported in my previous articles, county commissioners in the state have fundamental authority over these issues. Unfortunately, not all counties in the state have faced theses legal responsibilities head-on. As of 2013 it could be reported however that one particular county has it right, and can act as a model for others. Yankton County pinpointed the specific water drainage issues affecting their county, and determined how to resolve them. Perhaps these steps will inspire other counties to work as diligently.
Based on the observations and conclusions of Patrick Garrity, the successful and reputable Yankton County official in charge of the drainage program for the county, the first act the county took was to step back and analyze how water drainage problems, along with the little-heeded laws and regulations, affect the county. To do this, Yankton County used a wetland conservation service to analyze its 500 square miles of land. The analysts found that almost half of Yankton County falls under the category of wetland, and had a solid potential for tile drainage systems in order to improve crop production. When faced with the knowledge of how much tile drainage could improve the county’s agricultural lands and economy, the Planning and Zoning Committee knew they had to act on this information.
Before discussing the Yankton ‘miracle’ further, I will say a few words about countywide comprehensive plans. A “comprehensive plan” is a county legislated plan required by South Dakota law for each county. The plan must be implemented prior to creating general zoning and water drainage ordinances. A comprehensive plan is a document that describes in words, and may illustrate by maps, plats, charts, and other descriptive matter; the goals, policies, and objectives of the county board to interrelate all functional and natural systems and activities. Without a plan, zoning ordinances, including drainage ordinances, are invalid and unenforceable. The South Dakota Supreme Court has spoken and pretty much said, ‘Hey, you need a plan.’ Nevertheless, few counties have listened. To paraphrase what the Supreme Court said: A county commission has only those powers as are expressly conferred upon it by statute. With regard to water drainage problems, the power of county commissions to adopt ordinances is contained in a South Dakota specific planning statute: ‘For the purpose of promoting health, safety, or the general welfare of the county the board may adopt an ordinance to regulate . . . the location and use of buildings, flood plain, or other purposes.’ But a county must first adopt a comprehensive plan before adopting water drainage ordinances; it is impossible to adopt an ordinance implementing a required comprehensive plan if that plan, the first required step, does not exist. The first watchword to success in water drainage is a comprehensive plan.
Now let us observe the experience of Yankton County. Previously, the drainage commission of Yankton County used permits to decide drainage issues, mainly for economic reasons; issuing permits was a lot cheaper than having the issue settled in court. However, there were several problems with the commission’s previous system. First, it was terribly informal – all a farmer had to do to apply for a permit was state what they wanted to do, where, and roughly how. In most cases, these inquiries did not go further unless someone contested the permit application. Second, due to low application criterion, the drainage board often ran into problems by granting permits to those who did not use them properly. Because of these problems, it was evident that change was needed.
To solve these issues, Yankton County held meetings to discuss the problem and possible solutions. The county formed a commission of experts from all sides; including those who opposed tile drainage, and those who supported it, to study the problems. The commission considered each viewpoint and each professional opinion. The commission met once a month for 18 months, and succeeded in enacting an effective drainage ordinance.
The heart of Yankton County’s new, and effective, drainage ordinance had its roots in reestablishing the parameters under which the reestablished Yankton Drainage Board would base their findings and decisions. Specifically, they referenced the National Resource Conservation Service’s (NRCS) soil conservation handbook to create a more concrete and specific basis for allowing drainage permits. This resulted in more explicit guidelines and standards for the board to follow. This is what I call good baseline guidance and management.
The final step is to use concrete facts and evidence in the county’s application process to make decisions. As Mr. Garrity stated, “You cannot create a finding from an emotional standpoint,” meaning that concrete evidence and specific examples are required when contesting or offering ideas. By using concrete facts and evidence, the county is better able to make productive decisions, rather than simply arguing over their own personal opinions; an issue many counties today are facing.
Yankton County has also employed the use of the most current technology and systems available, such as LiDAR. LiDAR stands for Light Detection and Ranging; it is an optical sensing technology that can measure the distance between properties and can more definitely draw property lines. Therefore, LiDAR can solve many of the problems associated with water drainage systems. The technology’s outstanding accuracy gives the Drainage Board definitive facts, and has made a huge difference in how decisions are made.
By following these steps, Yankton County has been able to enact effective water drainage laws. They have instilled more confidence in the board by giving them specific criteria to follow, and provided solid facts on which to base every decision. In addition, by involving commissioners from different backgrounds and of multiple opinions, they have guaranteed that the decisions are not only best for everyone, but also just. Yankton is also promoting education on this subject, so more county residents can understand the problem and work to implement the solution. As of 2013 Yankton County was a model for getting water drainage right.
David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.