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South Dakota's solutions to soppy soil: changes to water management.

Drainage law in South Dakota is complex, and the laws are different in every county. After codifying case law in 1985, the South Dakota Legislature delegated authority to county governments to regulate their own drainage projects, subject to common law rules and legal restrictions. Initially, South Dakota counties approached this power delegation in different ways, but now many are changing their policies on drainage issues. Concerned about effectiveness and inconsistencies of the statutes, the counties and the legislature are discussing changes to how South Dakota deals with flow management of drainage projects. Counties are also concerned about their liability under the drainage statutes. In 2012, the South Dakota Legislature appointed the Regional Watershed Advisory Task Force ("Task Force") and commissioned a drainage study. At the outset, it is essential for the Task Force and state legislators to understand how counties have dealt with drainage management in the past. This comment will explore the South Dakota drainage laws and suggest how the Task Force and the legislature should balance the interests of effective and uniform resolution, while protecting property rights and preserving local control.

I. INTRODUCTION

"Water is an essential element of daily life for each and every one of us." (1) So, in a state where agriculture is the largest industry, reacting to the changes in the amount of water is essential to thrive. (2) South Dakotans often deal with flooding conditions one year and a drought crisis the next. (3) Communities witness the destruction of homes and businesses from flood waters and react by changing their county ordinances which deal with drainage and flood control. (4) Farmers lose crop yields from decreased productivity because of too much or too little water and react by installing tile drainage. (5) The South Dakota Legislature has taken notice of the various counties that have changed their water policies, and the legislature has called for a re-examination of how South Dakota should address and properly resolve its water issues. (6)

South Dakota's drainage laws have seen no significant changes since 1985 when the South Dakota Legislature enacted the current water management statutes. (7) Some agricultural groups believe the current system is convoluted and needs revision, (8) while others support keeping the existing laws in place. (9) In 2012, the legislature created the Task Force to study and advise, among other responsibilities, the state and local governments on better drainage management. (10)

The combination of at least three events sparked the state legislature's interest to create the Task Force. (11) First, the concern over regulating drainage is, in part, a reaction to the excessive snow and rainfall resulting in significant flooding in 2011, (12) followed by the severe to exceptional drought conditions experienced in the state during the summer of 2012 extending into the winter. (13) Second, driven by profits, farmers are increasing the number of drainage projects installed in order to generate greater profits. (14) The rise of crop prices, like corn, has made installing tile drainage economically beneficial, outweighing the costs of installation and maintenance. (15) Third, the South Dakota Senate required that the Task Force perform a study of drainage issues to provide improvements to management and regulation. (16) The Senate passed a concurrent resolution for the 2012 interim study and a thorough review of drainage laws because of (1) the saturation from snow and rain seen in the eastern side of the State, (2) the excessive wet areas on farmland that prevent optimal agricultural production, and (3) the number of counties which have repealed their drainage ordinances. (17) Commissioning this study implies the legislature's awareness of these issues, and asking for proposed statutory changes, if appropriate, indicates that the state may see modifications soon. (18)

The purpose of this article is to help South Dakota lawmakers and landowners understand county drainage plans from both a legal and a water-management perspective in order to fashion appropriate amendments governing water. (19) First, this comment surveys the basics of drain tiling; a general overview that is necessary to place the drainage law in its appropriate framework. (20) Next, this comment summarizes the key points of South Dakota drainage case law, including a supplement to the survey of South Dakota drainage cases conducted by Professor John H. Davidson and Mr. Martin Week in 1997. (21) Subsequently, this comment examines how various counties have handled their delegation of authority by: (1) analyzing the content of a typical drainage plan, (2) deciphering the components of a typical drainage ordinance and the approach each county takes when determining drainage permits, and (3) explaining the methods of resolving disputes between citizens. (22) Finally, equipped with the information about drainage plans and having compared the various forms of ordinances, this comment analyzes and recommends remedial measures the legislature can enact for the future management of South Dakota's water, such as changing drainage management to a watershed basin system, providing a template permit system, and employing expert hydrologists. (23)

II. BACKGROUND

A. BASICS OF DRAIN TILING

Farmers and ranchers face the challenge of maintaining the best land condition possible for growing, but they are not necessarily beholden to nature. (24) Subsurface drain tiles can help regulate the water table and produce high crop yields when nature does not cooperate. (25) Installing drainage systems in the Midwest region dates back to the late 1800s when western Minnesota saw a massive increase in large-scale drainage. (26) Today, some areas of Minnesota and most of Iowa have drained up to thirty percent of the county land. (27) Technological advancements have created a recent boom in tile drainage in South Dakota. (28) The technology has changed significantly allowing for efficient drainage system construction, so farmers may even install drain tile themselves with the proper equipment. (29)

Drain tiling is an underground draining system of plastic tubes or pipes with small perforations to allow water, not debris, to enter. (30) The farmer or contractor installs the system two to four feet under the crop field either in a random pattern or in parallel lateral lines, depending on the topography of that field, leading to a natural outlet. (31) After spring melt or heavy rains, the excess water accumulated above the tiling filters into the tubes and flows down to an outlet. (32) It is important that this outlet does not unreasonably affect servient landowners, or the dominant landowner may be liable for damages. (33)

With South Dakota's increased interest in and use of tiling, it is crucial to identify the advantages and disadvantages of tiling for a broader understanding of its implications. (34) For a farmer, the premier advantage of installing a tile drainage system is the production of crops at higher yields, which translate into a larger bottom line. (35) This happens in a variety of ways. (36) First, by draining land of excess water in the spring and fall, a farmer can plant earlier and harvest later, which results in a longer growing season. (37) The season extends because dry soil is warmer than wet soil. (38) Wet, cool soil delays planting, reduces ventilation, and inhibits plants' oxygen receipt. (39) Second, minimizing excess and standing water during growing periods reduces stress on the plants, increases the airflow to the roots, thus enhancing plant growth and producing higher yields. (40) In dry soils, a plant's root system grows deeper into the soil, causing the plant to be more adaptive to changes in water levels, leading to crop resilience and better growth. (41) Third, farmers who use a tile drainage system report a reduction in erosion and sediment loss. (42) When the water table is lower, the soil has room to hold the falling rain and diffused water on the ground, which results in less runoff from rainstorms that would otherwise erode the top soil. (43)

Draining land artificially has negative consequences too, such as increasing the Gulf of Mexico hypoxia, (44) adversely affecting water quality through increased pollution, causing nitrate loss in soil, and depleting the wetlands and wildlife habitat. (45) Farmers and local governments alike must appreciate the importance of installing a proposed drainage project correctly to maximize the benefits, minimize the consequences to the land and environment, and avoid litigation that may arise from drainage activities. (46)

B. EVOLUTION OF THE REASONABLE USE RULE IN SOUTH DAKOTA

At common law, the "civil rule" applied to drainage cases involving tortious drainage and the damages that result. (47) In the past, a dominant landowner could discharge or alter the flow of water by draining it upon servient property because a dominant landowner held an easement over the servient land provided only that the discharge be by way of a natural formation. (48) Yet in relatively recent years, South Dakota courts have found that a "reasonable use" standard is more appropriate to determine liability for drainage activity. (49) The reasonable use rule provides that each landowner "is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable." (50) The drainage common law developed by applying only the civil law rule, but South Dakota has slowly adopted the reasonable use rule for modern issues. (51)

The first case to develop South Dakota's common law for drainage was in 1910. (52) The South Dakota Supreme Court addressed, but did not expressly adopt, the primary rule of law for drainage referred to as the "civil rule." (53) In Boll v. Ostroot, the Court held that a dominant landowner "had no legal right to relieve his own premises of surface water by constructing an artificial ditch or drain to carry it off onto the land of the [servient landowner] to [the servient landowner's] material damage." (54) In this case, the defendant breached the banks of a slough on his property to drain it, casting the water upon the plaintiff's land by way of an unnatural watercourse. (55) The court granted an injunction preventing the dominant landowner from creating a channel that does not naturally exist to the detriment of the servient landowner. (56)

In a distinguishable case seven years later, the South Dakota Supreme Court expanded and finally expressly adopted the civil rule. (57) In Thompson v. Andrews, the dominant landowner and defendant, Thompson, owned a tract of land that had a basin with a natural embankment in the lower southeast corner. (58) Through the embankment was a natural, two-foot deep ditch. (59) Only when the water was high enough would it flow through this ditch. (60) In an effort to drain the basin and plant crops, Thompson deepened the ditch, and water drained out onto servient lands following its general drainage course. (61) The court specifically stated that South Dakota recognized an easement upon servient property allowing a dominant landowner to discharge surface waters over servient lands through natural formations. (62) Additionally, the court found the easement of the servient landowner to accept the waters was qualified by reasonableness and had to be "consonant with good neighborliness." (63) The court acknowledged reasonableness when it said that the legal easement is subject to two conditions: one, the water discharged cannot be "cast upon the servient estate in unusual or unnatural quantities[,]" (64) and two, such drainage cannot be accomplished by unreasonable injury to servient lands. (65) In 1985, the South Dakota Supreme Court in Feistner v. Swenson (66) found that Thompson actually recognized the reasonableness use rule so that any drainage is conditional, so long as in addition to being through a natural watercourse, drainage could not unreasonably injure servient land. (67) The state legislature later codified this legal principle as S.D.C.L. section 46A-10A-20. (68)

In 1946, Johnson v. Metropolitan Life Insurance Co. (69) reiterated the easement rule that a dominant landowner may drain his slough by cutting a natural bank as long as the discharged surface water moved through a natural watercourse. (70) The court qualified the easement rule by adding the new element that the water may be discharged over but not on servient land, introducing the "through not on" concept to the drainage doctrine. (71) The "through not on" doctrine provides that discharged water must move through the servient's land and not accumulate on the servient's land or the discharging landowner will be liable for the damages. (72)

A 1985 case, Gross v. Connecticut Mutual Life Insurance Co., (73) combined the Thompson civil rule and the Johnson "through not on" doctrine stating that the legal easement for surface water draining must not contemplate any unreasonable accumulation on the servient's land. (74) The Gross court defined surface water as "comprehend[ing] waters from rains, springs, or melting snows which lie or flow on the surface of the earth but which do not form part of a watercourse or lake." (75) The court found that an irrigation pond could not be categorized as "surface water" because it lost that characteristic when it became stored, making it part of a watercourse. (76) In addition to not being "surface water," the court found that the dominant landowner violated the "through not on" doctrine when he discharged water creating flooding over the entire land and not only restricted to the natural watercourse, like a creek crossing over the servient land. (77)

Drainage cases sometimes involve people suing their neighbors, as was the case in Winterton v. Elverson. (78) Winterton sued his neighbor, Elverson, for damages to his property caused by Elverson's installation of a drain tile system that changed the way the water drained over Winterton's servient land. (79) Before, runoff usually drained over the servient land; but after the installation, the runoff was continuous rather than sporadic and caused accumulation on the servient land. (80) The court applied each of the doctrines developed over the century, holding that a dominant landowner may only cast water over, not onto, servient land and not in an unusual or unnatural quantity. (81) Accordingly, the dominant landowner is liable for unreasonable injury caused to the servient land. (82)

The reasonable use rule came full circle in Mulder v. Tague. (83) Unlike the previously mentioned cases that involved agricultural land, Mulder involved the obstruction of natural drainage in an urban setting. (84) Prior to this, urban drainage law was still unclear. (85) The defendant filled a portion of his lot for use as a garden after agreeing not to obstruct that area because it was reserved for natural drainage. (86) The plaintiff filed a complaint with the city engineer, but the defendant took no further action. (87) Additionally, changes in road grating and neighboring residential properties caused the plaintiff's property to be at a lower level and subject to flooding from excessive rainfall. (88) In 1966, four inches of rain fell in five hours damaging homes including the plaintiff's, who sued for injunctive relief and damages. (89)

The court noted that the civil law rule could not regulate urban law because "any change in grade, level, and topography might affect natural drainage." (90) Instead, the court expressly adopted the reasonable use rule for urban areas in Mulder. (91) Using a factor analysis, the court determined that the obstruction of the natural drain way was only one factor and not the proximate cause for the plaintiff's damages. (92) The court considered several other factors besides the obstruction to determine reasonableness including: (a) unusual rainfall, (b) collection of water in the neighborhood, (c) the level and grade of property relative to the road, (d) adequacy of storm sewers, and (e) new construction in the area. (93) Ultimately, the court denied damages, but it granted equitable relief. (94)

The court later applied the reasonable use rule first developed by the Winterton court in the rural case of Knodel v. Kassel Township. (95) Water naturally flowed from the dominant land over and through the servient land until the Township built a road containing a culvert dissecting the two. (96) Knodel purchased the servient tract and subsequently plugged the culvert in 1956 because the narrowing of the channel into the culvert caused erosion on his property. (97) The plugged culvert caused an accumulation of surface water after a heavy rain in 1996, which washed out the road and flooded the dominant landowner's property, who was not a party to this lawsuit. (98) The Township wished to unplug or replace the culvert after having finally learned about it, but Knodel filed an injunctive action. (99) The court denied Knodel's injunction because "reopen[ing the] culvert [would] neither divert water from its natural course nor increase its volume to unreasonably inundate [his] property." (100) The court applied the reasonable use doctrine so that the Township, in the exercise of reasonable use of its property, could accelerate the flow of natural drainage within a natural watercourse, provided that it did not accumulate or discharge more unnatural quantities than natural conditions would allow. (101)

A year later in Hendrickson v. Wagners, Inc., (102) Wagners, Inc. ("Wagners") leased a tract of land adjacent to the Hendricksons's land known as Field 3, which was servient to Wagners's plot. (103) Wagners's plot contained areas of wetlands that it drained unnaturally after it dug ditches to rid the land of the water, which then flowed onto Field 3. (104) Hendricksons's sought damages and a permanent injunction for the flooding of Field 3. (105) The trial court awarded damages for the three years in controversy but denied the injunction. (106) The supreme court affirmed and reiterated the "through not on" doctrine, but added that a dominant landowner had no right to discharge water by artificial methods onto a servient landowner outside of a natural watercourse.

First Lady, L.L.C. v. JMF Properties, L.L.C. applied the Mulder reasonable use rule to another urban area case. 108 The plaintiff and defendant were two businesses built on the side of a mountain in the Black Hills. (109) First Lady's motel was located at the base of the mountain and JMF's Tramway was above and adjacent to the motel. (110) A service road called Jeep Trail ran near the boundary line from the base to the summit, but due to extensive construction by the Tramway in 2000, Jeep Trail was eroded and vegetation was lost around the road. (111) In order to prevent further erosion, the Tramway made cross-cuts and rolling dips which caused water runoff to invade the motel's property. (112) The issue was whether those cross-cuts and roiling dips changed the direction of the natural drainage unreasonably to the motel's detriment. (113) Although many of the past South Dakota drainage cases alluded to requiring some form of a reasonableness assessment in the civil law rule or the reasonable use rule, (114) the First Lady court went a step further and stated that "under either the civil rule or under the reasonable use rule, [the actor] is legally privileged to drain its property subject to a test of reasonableness." (115) The court provided a number of factors to determine reasonableness, such as the use of the land, the topography, and other available alternatives, which the trial court had not weighed. (116) On remand, the parties stipulated that "the 'reasonable use' rule applies." (117) The trial court then weighed the factors, and held that the Tramway did not make unreasonable use of its land and its alterations did not cause unreasonable damages. (118)

The foregoing cases provide a backdrop to guide landowners, commissioners, and other practitioners through the potential legal issues before deciding to move forward with a proposed drainage projects in accordance with South Dakota drainage statutory and regulatory schemes. (119) The next section outlines how counties have applied case law to the enactment of drainage regulation. (120)

III. SURVEY OF COUNTY COMPLIANCE AFTER THE 1985 LEGISLATION

The 1985 codification of drainage case law was intended to guide counties toward regulating drainage projects and permits effectively by ensuring that the counties balance each landowner's interests in the fairest manner possible. (121) The South Dakota Legislature intentionally promulgated the statute to be optional for counties because it recognized the differences in topography and weather conditions among the counties across the state. (122) If a county decided to manage drainage issues, the only mandatory compliance was that, in the exercise of those conferred powers, the drainage must comply with the civil law rule stated in S.D.C.L. section 46A-10A-20. (123) Each county official should understand how the court has ruled in certain factually unique situations so the county, when awarding permits for proposed projects, can better apply the case law and S.D.C.L. section 46A-10A-20. (124) Under the water management statute of S.D.C.L. section 46A-10A, there are three aspects of particular interest that this comment will address: (1) establishment of drainage plans, (125) (2) composition of local drainage ordinances, (126) and (3) dispute resolution. (127)

A. ESTABLISHMENT OF DRAINAGE PLANS

South Dakota's water drainage statutes give counties the option of adopting a comprehensive drainage plan, which would set the standards and policy for regulating all drainage projects within that county. (128) A drainage plan is defined as "a document which may illustrate by maps, charts, and other descriptive matter the policies of the board to interrelate all man-made and natural systems and activities relating to drainage under its jurisdiction." (129) The statute provides that:
   [a] drainage plan shall be for the purpose of enhancing and
   promoting physical, economic, and environmental management of the
   county;... encouraging land utilization that will facilitate
   economical and adequate productivity of all types of land;
   lessening governmental expenditure; and conserving and developing
   natural resources. The plan may incorporate appropriate
   contingencies for the protection of private cropland and pasture.
   (130)


The terms for creating a drainage plan are outlined in S.D.C.L. section 46A-10A-16 and are very flexible as long as the plan does not oppose these purposes and case law. (131) Such flexibility is intentional and necessary because each county has different situations regarding the nature of the land, amount of precipitation received, and funding available for the administration of a plan. (132)

In South Dakota, most counties have not adopted a drainage plan. (133) The counties with official controls are located on the eastern side of the state, for example, Brookings, (134) Davison, (135) Lake, (136) Lincoln, (137) Minnehaha, (138) and Yankton. (139) This section analyzes these counties' drainage plans in an effort to reconstruct a model drainage plan. (140) The 1985 Legislation did not make it mandatory for counties to adopt a drainage plan, provided no timeline, and gave limited guidance for the structure of a drainage plan, which affords counties the flexibility to choose to enact unique regulations. (141) The caveat is that if a county adopts a drainage plan, then the "plan shall include functioning drainage districts, vested rights described in [S.D.C.L. section] 46A-10A-31, the drainage plans or projects of a unit of local government and existing coordinated drainage areas formed pursuant to [S.D.C.L. section] 46A-10A-47." (142)

Currently, South Dakota drainage plans typically begin by describing the location of the county, the nature of the land, reciting the civil law rule codified in S.D.C.L. section 46A-10A-20, explaining the purpose of the plan provided by S.D.C.L. section 46A-10A-17, and authorizing the county to create a plan pursuant to the 1985 Legislation. (143) Next, the size of the proposed project is important for determining whether a permit is required. (144) Some plans require a permit regardless of the proposed project size, (145) while other plans require a permit for projects involving twenty acres or more of rural land or five acres or more of municipality land. (146)

A county must include a section defining its vested rights policy per S.D.C.L. section 46A-10A-31. (147) Most county plans expressly recognize vested drainage rights and consider all non-vested drainage to be the same as new drainage. (148) A dominant landowner is required to notify any servient landowner who may be affected by the drainage project; however, the notification method is not provided. (149) To protect adjacent landowners's due process rights, the House proposed a bill in the 2012 legislative session, which required that "[a]t least forty-five days before beginning any drainage activity, any landowner who intends to conduct such drainage activity on the landowner's property shall notify, by registered or certified mail, all directly affected adjoining landowners and all directly affected third parties holding drainage interests of the intended activity." (150) If the legislature adopts this bill, it would add a new section to Chapter 46A-10A. (151)

Not all drainage is restricted to the borders of a county, so a county plan may provide its own policy for drainage across watershed boundaries whether it discourages the transfer of drainage water from one basin to another, or simply advises careful assessment before issuing a permit. (152) Similarly, a plan's flexibility allows the county to have its own policy concerning the value and drainage of wetlands, whether it discourages such drainage (153) or takes additional cautious steps to assess the necessity of the drainage. (154)

S.D.C.L. section 46A-10A-2 permits a county to appoint a drainage board of no less than three members, mandating an uneven membership, and consisting of at least one commissioner. (155) Davison County recently created a drainage board consisting of two commissioners and five citizens (156) to act on drainage permit applications after training and education about drainage, which the county hopes will reduce potential liability. (157) Many other counties, however, have opted out of the permissive appointment, and their commissions continue to act as drainage boards instead of creating separate boards. (158) Those counties consider this statute to be duplicative because the same county commissioners who serve on the drainage board would hear the case if the drainage board decision were appealed to the county commission; this would create an unnecessary intermediate hearing before a subsequent appeal to the circuit court. (159)

Lastly, counties' plans "shall include functioning drainage districts ... and existing coordinated drainage areas formed pursuant to [S.D.C.L. section] 46A-10A-47." (160) The counties allow the establishment of coordinated drainage districts, but caution that when dealing with existing projects, counties ought to balance the benefits, costs, and liability. (161) Even though the plans appear similar on their face, the statute allows each county to regulate its plan depending on topography, climate, and population size; the legislature intended this flexibility. (162)

B. COMPOSITION OF LOCAL DRAINAGE ORDINANCES

To know specifically what these counties are repealing or changing, this section demonstrates what is in the typical ordinance and some issues arising from these ordinances. (163) Each drainage ordinance has the same general parts, though some counties have excluded or revised specific provisions. (164) First, the template ordinance provided by statute states the purpose of the ordinance and that each permit must comply with state and federal laws. (165) Then, the template ordinance defines pertinent terms like watershed, drainage project, and servient estate. (166) The administrator or drainage official of the ordinance has direct authority to grant or deny permits by reviewing a permit application form for completeness, appropriateness, and significance. (167) The administrator has discretion when the project involves outlets that lead into specified streams in each ordinance. (168) If the drainage project spans multiple counties, the entire drainage board or the county commission must unanimously approve or deny the drainage application during a public hearing with the other county's board or commission. (169)

Different types of drainage work may require a permit, even for minor projects. (170) For routine maintenance, some counties require a permit, (171) but other counties may only require notice to the drainage administrator. (172) For larger projects, the county typically requires analysis of the project, an application fee, and any other information deemed necessary for the board or commission to make an informed decision for all construction, repairs, or modifications. (173) Fees range from $25 (174) to $100 for a drainage permit, plus $10 for each additional non-abutting parcel. (175)

An ordinance provides policies for drainage district, coordinated drainage areas, drainage projects, and drainage basin utility districts. (176) If the board of county commissioners cannot unanimously agree on the application, the South Dakota Water Management Board will step in to weigh factors to determine reasonableness of the proposal. (177) In addition, each ordinance provides the procedure for establishing a coordinated drainage district, requesting repairs to an existing coordinated drainage district, and even abandoning an existing coordinated district. (178)

As an example, Lincoln County recently created a coordinated drainage area named Spring Creek Tributary. (179) Because the landowners fund the district through assessments, the County adopted Ordinance 1202-29 to become eligible to apply for FEMA's Hazard Mitigation Grant Program. (180) FEMA awarded a large amount of money to Lincoln County to decrease the taxpayers' funding. (181)

Each ordinance requires that landowners give notice to servient landowners riparian to the watercourse before beginning a tile drainage project, but the distance that notice must reach is inconsistent. (182) Notice requires mailing downstream landowners the public hearing date and location, within fourteen days, to discuss concerns about the proposed drainage project, providing the adjoining landowners a right to be heard. (183) The distance of such notice can range from one-half mile (184) to two miles from the outlet (185) and may even require notification to upstream landowners one-half mile before the proposed outlet. (186) Other counties vaguely require that an applicant give notice to all property owners who would be directly affected by the drainage regardless of distance. (187)

County commissioners may not be able to make educated predictions about how the drainage will affect the surrounding property, and in turn, those commissioners are concerned that if they issue a permit, which subsequently harms another's property, the county may be liability for damages. (188) If the legislature adopts H.B. 1243, it will become mandatory for any landowner intending to conduct drainage activity to notify, by registered or certified mail, all directly affected adjoining landowners and third parties with drainage interests, whether the landowner's county has a permit system or not. (189) Note, however, that H.B. 1243 does not mandate a required distance for notice to reach, which still leaves adaptability for counties and possible inconsistencies. (190)

In summary, South Dakota counties have adopted different drainage ordinances based on different needs and policies. The table below further illustrates the content of the discussed ordinances for easy comparison and distinction: (191)
Active County Drainage Ordinance Table

                Notice             Exceptions to        Permit Expires
            Requirement to      Permit Requirement
              Downstream
              Landowners

Beadle        one and 1/2           none noted          two years (one
                 miles                                  time one year
                                                          extension)

Brule           2 miles        routine maintenance;       none noted
                              any projects less than
                                     40 acres

Clay        property owners   Cleaning debris without     none noted
             who would be        any alteration to
               directly         original drain but
               affected         still must provide
                                      notice

Lake           one mile             none noted             one year

Lincoln        1/2 mile        repair or replacement     three years
                               less than 20 feet of
                               drain; project within
                              contributing watershed
                                area of 20 acres or
                                less: and seasonal
                                    maintenance

McCook         one mile              none need            two years

Minnehaha      1/2 mile        repair or replacement     three years
                               less than 20 feet of
                               drain: protect within
                               watershed area of 20
                                   acres or less

Moody          1/2 mile             none noted            two years
                                                          (possible
                                                          extension)

Spink         one and 1/2           none noted          two years (one
                 miles                                  time two year
                                                          extension)

Yankton     1/2 mile above    routine maintenance but     18 months
             and one mile       still must provide        (possible
             below outlet             notice              extension)

                    Permit Fee             Penalties: * Work without
                                            Permit; ** Violation of
                                               Permit's Terms and
                                             Conditions; *** Other

Beadle             Filing permit          * Class One Misdemeanor and
              application--undefined        up to $1000/day; ** none
                                                     noted

Brule              Filing permit          * Class One Misdemeanor and
                 application--$25           up to $1000 day. ** none
                                                     noted

Clay               Filing permit          * up to $1,000/day; ** none
                 application--$25           noted, *** cleaning with
                                            notice-$1,000/violation

Lake         With written approval of     * Class One Misdemeanor and
            downstream landowners--$50;    up to $1,000/day; ** Class
              without approval--$100;      Two Misdemeanor and up to
                routine maintenance         $200,30 days in jail, or
              fee--$25/section if not     both; *** Improper filing of
             filed within one year; if              map-$100
             any work is done without
            permit--$100 inspection fee

Lincoln      Routine maintenance--$25;    * Class One Misdemeanor and
                 permit-$75; board         up to $1,000/day, ** Class
            hearing--$125; work without   Two Misdemeanor and punished
             permit--$500; maintenance      under S-D.C.L. [section]
                without permit--$50                 7-18A-2

McCook             Filing permit          * Class One Misdemeanor and
                 application--$100          up to $1,000/day; ** none
                                                     noted

Minnehaha    Routine maintenance--$25;    * Class One Misdemeanor and
                permit--$50; board         up to $1,000/day; ** Class
            hearing--$100; work without   Two Misdemeanor and punished
            permit--$500; drainage map      under S.D.C.L. [section]
                with the lines--$5                  7-18A.2

Moody              Filing permit            * up to $1,000/day; ***
                 application--$100           penalty provided under
                                               S.D.C.L. [section]
                                                   46A-10A-3O

Spink        With written approval of     * Class One Misdemeanor and
            downstream landowners--$25         up to $1,000/day;
                filing fee; without
            approval-- $100 filing fee

Yankton      With written approval of     * Class One Misdemeanor and
            downstream landowners--$50;    up to $1,000-day; ** Class
             Permit fee--$100 plus $10    Two Misdemeanor and punished
              additional non-abutting     under S.D.C.L. [section] 7-
            parcel; if any work is done   18A-2-up to $1,000, 30 days
               without permit--$500            in jail, or both.
                  inspection fee


C. DISPUTE RESOLUTION

Most ordinances outline how landowners can resolve drainage disputes. (192) Each ordinance provides that any dispute or appeal can be brought to a circuit court. (193) Some counties have opted to appoint their own boards of county commissioners as boards of resolution, which hear disputes within the unincorporated areas of the county or defer such disputes to the circuit court. (194) The ordinances encourage neighbors to work out their disputes through mediation; mediated disputes typically end more cordially for all the involved parties. (195) Alternatively, counties can resolve disputes by appointing a separate drainage commission or drainage board made up of at least three members with one member serving as a county commissioner. (196) Davison County, for example, recently created a drainage board consisting of two county commissioners and five residents of the county having some special expertise to help resolve disputes. (197) In addition, McCook County expressly provides that its drainage board, consisting of county commissioners, is responsible for administrating the rules and solving disputes in the county's unincorporated areas. (198) McCook County decided to use its board not only for permitting new construction and for maintaining existing tile and ditch drainage, but also to investigate complaints and any violations of the drainage rules. (199) All drainage board decisions are administrative in nature and therefore subject to judicial review. (200)

IV. ANALYSIS

This section discusses the remedies for some of South Dakota's water management issues. (201) An analysis of counties' actions taken pursuant to their respective ordinances is necessary in order to learn from those results, discuss the Task Force's actions to streamline drainage management, and finally, evaluate the options South Dakota may choose for future water management. (202)

A. ACTIONS OF SUPPORT AND REPEAL

Before the legislature assigned the Task Force with the drainage studio, counties were taking the initiative by amending or repealing their ordinances. (203) Commissioners cite many benefits for keeping drainage ordinances in effect; the primary reason cited is the retention of local control. (204) Keeping local oversight is important to county commissions because each county wants to know where tiling occurs within its boundaries. (205) Many citizens appreciate these ordinances because they ensure that an applicant will notify the county and the affected landowners and that a hearing will be scheduled before a proposed drainage project begins. (206) Specifically, Grant County kept its ordinance because it provides a flow of information about what tiling projects are in place around the county. (207)

Some counties have had great success enforcing their ordinances. (208) Minnehaha County has successfully regulated its drainage while only experiencing three revisions. (209) In the 1990s, Moody County citizens voted to keep their ordinance. (210) This vote showed that the citizens wanted local control over water issues, and landowners could work out their problems between one another locally without resorting to the courts. (211)

Technology, in part, made Moody County's ordinance very successful due to its use of a blue line map. (212) In order to drain water, the water "must go into a 'blue line,' which refers to the color [of] natural waterways, such as creeks, streams or other flowing water features [which] appear on a U.S. Department of the Interior Geological Survey." (213) The county may consider a blue line map to estimate where the water will find an outlet and notify downstream landowners within one-half mile below the proposed drain outlet. (214) The county is leery of creating chaos if it repeals this ordinance, so it continues to manage drainage to its citizens' satisfaction, notwithstanding the potential legal consequences. (215)

Most recently, two other counties affirmed their decisions to regulate drainage at the county level. (216) First, Yankton County recently adopted its drainage ordinance, creating a drainage commission to specialize in dealing with permits and disputes. (217) The Yankton County Commission hopes that landowners can rely on the county for resolution before going to the circuit court, and that the ordinance will foster a coordinated effort between landowners. (218) Second, Brown County met the challenge of regulating at the county level and disposing of its potential liability by repealing its ordinance and preserving its drainage project notification requirements. (219) The county still knows what drainage projects are in progress and ensures dischargers are notifying neighbors about pending drainage projects, but the county believes this will alleviate liability. (220)

On the other hand, the consequences of these drainage ordinances are a stronger motive for repeal. (221) A general lack of special knowledge about lawful drainage has prompted some counties to repeal their ordinances. (222) Some counties believe engineers and hydrologists, because of their expertise, are better suited than county commissioners to make drainage decisions. (223) Some counties fear liability for issuing a drainage permit that could cause damage to a servient landowner's property. (224) Also, counties could face liability for denying a permit which could, in effect, deny a property owner his or her property right in draining, constituting an unconstitutional taking. (225)

Brookings County repealed its ordinance in December of 2011 citing a lack of expert knowledge about hydrology and concerns about county liability. (226) Brookings County also hoped to expedite the enactment of a new drainage statute. (227) Conversely, some argued to no avail that repealing the ordinance before the legislature enacts a replacement would take away the protection for downstream farmers, leaving farmers vulnerable until the legislature enacted a replacement. (228) Turner County also repealed its ordinance in November 2011 because its commissioners lacked expertise to grant or deny drainage permits properly. (229) Furthermore, state's attorneys suggest that county commissioners should repeal the drainage ordinance because drainage disputes are private issues better solved between landowners by litigation, if necessary. (230)

Knowing what the counties want and what they have already done to alleviate their drainage problems, the Task Force is more likely to succeed at its designed purpose. (231) The Task Force will recommend changes to structure, align responsibilities, and discover alternatives to regional and local watershed districts. (232) When the legislature created it, the Task Force started work on its ambitious agenda: (233) to research the facts of drainage issues, to set goals to fix the problems, to review and to streamline existing statutes, and to provide guidance to county commissioners. (234) The Task Force is composed of fourteen members--eight legislators and six members of the general public with backgrounds in science, natural resources law, business, management, or agriculture. (235) This bipartisan group hopes to decide whether to expand the existing small, county-level drainage districts to a regional focus. (236) The Task Force insists that it will not take away the local control that counties want, but recognizes that combining the operations of successful county plans with those in disarray would help remedy many issues. (237)

Ultimately, while in session, the Task Force's agenda is to address two issues. (238) The first is a problem of balance. (239) "Do the advantages of making regulatory decisions on a watershed basis outweigh the value of allowing county commissions local control over drainage, as is the case now?" (240) The Task Force favors statewide uniformity and "standardizing the agricultural drainage permitting process." (241) Nevertheless, with more uniformity, local control may be abandoned if water management is achieved by watershed basin structure instead of by county because "water transcends those political boundaries." (242)

The second issue the Task Force will address is the role experts may play in evaluating proposed drainage projects. (243) With "more technical information about hydrology, engineering, chemistry and biology," commissioners will be more informed when they evaluate permit applications. (244) Drainage has benefits and consequences alike, but many county commissioners do not understand all the effects new drainage projects will have on area water sources and are uncomfortable approving drainage projects. (245)

The following subsections are specific suggestions that address the Task Force's two key issues:

B. HIRE STATE EXPERTS AS CONSULTANTS FOR COUNTIES

"One recommendation for change ... is to have a state expert available as a resource for county drainage boards." (246) Currently, the water management statutes allow a drainage board or commission to "employ an engineer or a hydrologist, or both" to consult and make recommendations on pending drainage permits to the commission. (247) This expert would be an unbiased person, not on the commission. (248) Engineers' responsibilities range from applying the legal background to a situation, investigating the proposal, advising commissions with investigation reports, and being a witness during public hearings. (249) The Task Force acknowledges that liability may come from inconsistency under a negligence theory, but if water experts make the decisions based on science, inconsistencies may decrease. (250) Under engineer Run Gillen's initial proposal to the Task Force, state engineers or hydrologists evaluate drainage permits for counties in a precise and accurate way because these independent professionals study and understand a watershed's individual, complex nature and use scientific data and analysis without shortcuts. (251) For example, using a geographic information system ("GIS"), hydrologists are able to compile a database of the drainage by a county-level and can estimate the effect of potentially draining a particular plot of land. (252)

Some counties are exercising an interim alternative until the Task Force issues its report and the legislature acts. (253) For example, a county may appoint local farmers or a water expert as part of their drainage board or county commission so that there is experience and practical knowledge deciding the outcome of permits. (254)

C. A TEMPLATE TO ENSURE CONSISTENCIES AND COMPLETENESS

As counties continue to express their desire to maintain local control of drainage permits, a template to facilitate a county's permit review process would ensure consistency and accuracy. (255) Commissioners would need only to 'fill in the box,' thus alleviating some commissioners' reservations about allotting time to reviewing permits when "some county officials serve in several capacities." (256) The Task Force hopes "to develop state models, including, perhaps, a mediation board to resolve drainage issues that emerge from county permitting decisions." (257) The Senate recently began working on this suggestion and proposed Senate Bill No. 179, which would provide "a uniform county drainage permit application form" to detail what provisions should be in the permit. (258) Proponents of this bill recount its necessity for commissioners to have a source on which to make decisions because absent a template, civil lawsuits may be invited, yet circumvented if done right first. (259)

D. RESTRUCTURE THE BOUNDARIES TO REGULATE ON A WATERSHED BASIN BASIS

The Task Force can create watershed boundary plans to provide authority to a newly formed watershed association to centralize water management on a watershed basin basis--allowing for more efficient watershed management (260)--rather than by non-natural county lines. (261) Watershed management provides a strategy for a watershed organization to manage water quantity requirements throughout the year for the most beneficial, agricultural use of water. (262) For a successful management plan, there must be transparency, data collection and sharing, and community support because one watershed contributes surface water to a larger water basin. (263) Typically, multiple local governments or even a regional administration will regulate a basin. (264)

Spring Creek Watershed is located within two counties, neither of which have county ordinances nor drainage plans, so the counties implemented a watershed basin plan. (265) The plan provides for a budget, specific goals and objectives, and continuous monitoring, bringing together expert knowledge and a template for future watershed basin projects. (266)

Water does not mind county lines but does mind watershed basins. (267) Downstream landowners feel the effects of increased drainage, even though they may not be in the same county where the drainage takes place and is regulated. (268) As a result, when water management is minimized to only the most local control, neither the upstream discharger nor the county may realize the drainage effect, especially if the drainage happens close to a county line. (269) Incorporating broader watershed management will force upstream dischargers to work together with downstream landowners to prevent flooding and benefit everyone to the extent possible. (270) As Senator Vandel said, drainage is a "complex issue, and the solutions are not likely to be easy. But I sense a desire of [the Task Force] to work together, form a consensus[,] and provide overall direction to the state." (271)

V. CONCLUSION

As per Senate Concurrent Resolution 5, (272) many commissioners, legislators, and experts in the field continue to gather in Pierre to study and reevaluate the laws concerning drainage in South Dakota to better serve this state. The decisions and recommendations of the Task Force will affect how South Dakota manages watershed districts and individual drainage projects. By hiring water flow experts as consultants for counties, counties can maintain local control, reduce liability, and implement well-planned drainage projects to work effectively with minimal harm to servient landowners. If the Task Force creates a template for county commissioners to use when evaluating a pending drainage permit application, landowners can realize the same benefits. Governing drainage by watershed is the most logical expansion of management while maintaining local control. The legislature will make changes in the future but with the variety of water management techniques and duties delegated to people at diverse levels, that change will be difficult. As the technology evolves for better tiling practices and South Dakotans experience fluctuating environmental conditions, the South Dakota Legislature must remain flexible in its drainage regulation and management.

(1.) U.N. WORLD WATER ASSESSMENT PROGRAMME, WATER FOR PEOPLE WATER FOR LIFE, WORLD WATER DEVELOPMENT REPORT 1 (2003).

(2.) See JOYCE E. WILLIAMSON & JANET M. CARTER, U.S. DEP'T OF INTERIOR, U.S. GEOLOGICAL SURVEY, WATER-QUALITY CHARACTERISTICS IN THE BLACK HILLS AREA, SOUTH DAKOTA 2 (2001), available at http://pubs.usgs.gov/wri/wri014194/pdf/wri014194.pdf.

(3.) See Ronald A. Wirtz, A Floods of Floods, FEDGAZETTE, Oct. 2011, available at http://www.minneapolisfed.org/publications_papers/pub_display.cfra?id=4753 (discussing the flood conditions of 2011); U.S. DROUGHT MONITOR, http://droughtmonitor.unl.edu/(last visited Feb. 8, 2013) (tracking national drought status).

(4.) See Wirtz, supra note 3; Elisa Sand, County's [sic] Continues Drainage Ordinance Discussion, MADISON DAILY LEADER, Jan. 25, 2012, http://madisonet.com/site/news.cfm?BRD=1302&dept_id=181 987&newsid=20469209&PAG=461&rfi=9 (reporting commissioner's position on its drainage ordinance).

(5.) Drainage, U.S. ENVTL. PROT. AGENCY (June 27, 2012), http://www.epa.gov/oecaagct/ag101/c ropdrainage.html.

(6.) S. Con. Res. 5, 87th Sess., S. JOURNAL 335-37, 365 (S.D. 2012) (adopted 27-3).

(7.) See generally S.D.C.L. [section] 46A-10A (2004 & Supp. 2012) (codifying drainage case law). The recent edits done since the enactment of this statute were for purpose of restyling and did not change to substance of the statute. Id.

(8.) WATERSHED MANAGEMENT WORKING GROUP, REGIONAL WATERSHED ADVISORY TASK FORCE, 2012 INTERIM COMMITTEE RELATED DOCUMENTS 1 (July 23, 2012), available at http://legis.state.sd.us/interim/2012/documents/WTF7-23-12WatershedManagementWorkingGroup.pdf (supporting the theory that watershed management should be done along watershed boundaries instead of by county boundaries).

(9.) Letter from Moody County Commissioners to Regional Watershed Advisory Task Force (Sept. 28, 2012), available at http://legis.state.sd.us/interim/2012/documents/WTF09-2512MoodyCountyCom missionersletter.pdf (proposing that "drainage issues should remain at the County level").

(10.) 2011 S.D. Spec. Sess. Laws 480; S.B. 169, 86th Sess. (S.D. 2012).

(11.) See infra notes 12-16.

(12.) Barry Amundson, New S.D. Law Creates Regional Watershed Task Force, TRI-STATE NEIGHBOR (Apr. 5, 2012), http://www.tristateneighbor.com/news/regional/article_55a3bf6e-7f3a-11elb827- 0019bb2963f4.html.

(13.) Id.; see U.S. DROUGHT MONITOR, supra note 3.

(14.) Gregg Carlson, Tile Drainage Impact, IGROW (Aug. 14, 2011), http://igrow.org/agronomy/corn/tile-drainage-imapct/(providing that an increased interest in using drain tile systems is because of excess water which reduces yields and creates hardship for farmers).

(15.) S.D. Drainage Tile Workshops Address Key Issues, THE ABERDEEN AMERICAN NEWS, Jan. 27, 2012, http://articles.aberdeennews.com/2012-01-27/farmforum/30672835_1_drainage-tile-drainage-design-chris-hay [hereinafter Workshops]. The market price of corn has increased almost 300 percent since 2006, from $2.28 per bushel ("BU") to $6.67 per BU. Quick Stats, NAT'L AGRIC. STATISTICS SERV., USDA, http://quickstats.nass.usda.gov/results/EFA2FE9B-EB76-3D2C-AF59-EB4E860A8DA2? pivot=-short_desc (last visited Feb 22., 2013). In other words, production has increased from $32 billion in 2006 to $76 billion for 2011 (production value statistic is unavailable for 2012). Id. It may take one to three years for farmers to pay off this investment if yields are exceptionally high, but five to ten years during normal harvest periods. Responses by Chris Hay, Assistant Professor, Agricultural & Biosystems Engineering, SDSU, to questions from Regional Watershed Advisory Task Force (July 23, 2012), available at http://legis.state.sd.us/interim/2012/documents/WTF7-23-12ResponsestoQuestions.pdf.

(16.) 2011 S.D. Spec. Sess. Laws 480; S.B. 169, 86th Sess. (S.D. 2012) (stating that the "Task Force shall consider potential alternative organizational structures ... may present draft legislation and policy recommendations").

(17.) S. Con. Res. 5, 87th Sess., S. JOURNAL 335-37 (S.D. 2012).

(18.) Peter Harriman, Drainage Panel Tries to Balance Interests, ARGUS LEADER, Sept. 30, 2012, at 5A (hoping legislators will work and amend statutes by 2014).

(19.) See infra Introduction.

(20.) See infra Part II.A.

(21.) See infra Part II.B.; John H. Davidson & Martin Weeks, Jr., Drainage in South Dakota: Wetlands, Lucas, Watersheds, and the 1985 Drainage Legislation, 42 S.D.L. REV. 11 (1997). Refer to this article for assistance with important vocabulary words, all previous case law up to its publication in 1997, and other important issues not discussed in this comment article. See id.

(22.) See infra Part III.

(23.) See infra Parts IV.B-D.

(24.) See Drainage, supra note 5 (controlling natural water levels by drain tiling).

(25.) Don Hofstrand, Understanding the Economies of Tile Drainage, IOWA STATE UNIVERSITY EXTENSION, July 2010, at 1, http://www.extension.iastate.edu/agdm/wholefarm/pdf/c2-90.pdf. This article provides a full understanding of tiling and the designs available. See id.

(26.) Mark J. Hanson, Damming Agricultural Drainage: The Effect of Wetland Preservation and Federal Regulation on Agricultural Drainage in Minnesota, 13 WM. MITCHELL L. REV 135, 139-41 (1987).

(27.) Zachary Sugg, Assessing U.S. Farm Drainage: Can GIS Lead to Better Estimates of Subsurface Drainage Extent?, WORLD RES. INST. (2007), available at http://pdf.wri.org/assessing_farm _drainage.pdf.

(28.) Workshops, supra note 15. In 2011, Brookings County dealt with an administrative surge because the requests for wetland determinations increased by 7,000 from 2010. Id. Landowners must seek a wetland determination before implementing tile drainage because, if the land is considered "wetland," then it is protected and cannot be drained. Id. "An area must meet three criteria in order to be considered a wetland--have hydric (wet) soil, hydrophytic (water tolerant) vegetation, and saturation or ponding by water most years." WATERSHED MANAGEMENT WORKING GROUP, REGIONAL WATERSHED ADVISORY TASK FORCE, 2012 INTERIM MINUTES AND AGENDAS: FIRST MEETING, (July 23, 2012), http://www.legis.state.sd.us/interim/2012/minutes/MWTF07232012.pdf [hereinafter First Meeting].

(29.) Hanson, supra note 26, at 148.

(30.) See Drainage, supra note 5.

(31.) Id.; Hofstrand, supra note 25. The depth of the tubing depends on the water table level. Drainage, supra note 5. Engineers and drain contractors are experts on what pattern of tiling is needed and at what depth it needs to be installed. Id. See also Jane Frankenberger, Drainage Design and Management Practices to Improve Water Quality, The Drainage Outlet: Questions and Answers about Drainage Water Management for the Midwest, UNIV. OF MINN. EXTENSION, http://www.extension.umn. edu/DrainageOutlet/QandA.html (last visited Feb. 8, 2013) (answering other common drain tile questions).

(32.) See Drainage, supra note 5.

(33.) See infra Part II.B. (describing South Dakota case law resulting from improper drainage).

(34.) See generally Stacey Elizabeth Feser, The Effects of Water Table management on Edge-of-Field Water Quality and Comparing Soil Physical and Hydraulic Properties From an Undrained, Cultivated Row Crop Field to a Remnant Prairie in Southwest Minnesota (Jan. 2012) (unpublished M.S. thesis, University of Minnesota), available at http://conservancy.umn.edu/bitstream/121092/1/Feser_Stacey_January2012.pdf.

(35.) Carlson, supra note 14.

(36.) See infra notes 37-43 and accompanying text.

(37.) Christopher H. Hay, Ph.D., P.E., Presentation at the Tri-State Agricultural Drainage Forum, Agricultural Subsurface Drainage Systems. Fundamentals, Benefits and Impacts (Jan. 26, 2011), available at http://climate.sdstate.edu/water/2011DrainageForumPresentations/HayAgDrainageBasics.p df.

(38.) Hanson, supra note 26, n. 16 (citations omitted).

(39.) Id.

(40.) Hay, supra note 37; Derek Bartos, Tiling For Dollars, YANKTON DAILY PRESS & DAKOTAN, May 19, 2012, http://www.yank-ton.net/articles/2012/05/19/community/doc4fb71304d8118097727293.txt.

(41.) See Hanson, supra note 26, at 138 n. 16 (citations omitted).

(42.) Hay, supra note 37, at 32.

(43.) Bartos, supra note 40 (using a sponge analogy to understand reduction of runoff).

(44.) Hay, supra note 36, at 33. "Hypoxia is when the oxygen level in the water decreases to a level that can't support marine life. This occurs when drained water traveling down the Mississippi River contains nitrate that grows algae[.] After this algae decomposes, the oxygen level decreases," resulting in the hypoxia or ocean dead zone. Talisa Wager, Move That Water. Brown County Researches Subsurface Drainage, THE ABERDEEN AMERICAN NEWS, July 30, 2011, http://articles.aberdeennews.com/2011-07-30/news/29837122_1_tile-drainage-drainage-board-subsurfac e-drainage.

(45.) Hay, supra note 37.

(46.) See Workshops, supra note 15.

(47.) See, e.g., Boll v. Ostroot, 127 N.W. 577, 580 (S.D. 1917) (providing the earliest version of the civil law rule); Thompson v. Andrews, 165 N.W. 9, 12 (S.D. 1917) (expressly adopting the civil rule).

(48.) Boll, 127 N.W. at 580; Thompson, 165 N.W. at 12.

(49.) Mulder v. Tague, 186 N.W.2d 884, 889 (S.D. 1971) (expressly adopting reasonable use rule for urban situations); First Lady, LLC. v. JMF Properties, LLC., 2004 SD 69, [paragraph] 12, 681 N.W.2d 94, 99 (providing factors to determine reasonableness).

(50.) Mulder, 186 N.W.2d at 889 (quoting 1A GEORGE W. THOMPSON, THOMPSON ON REAL PROPERTY [section] 266, at 384 (citations omitted)).

(51.) See infra Part II. Compare Boll, 127 N.W. 577 and Thompson, 165 N.W. 9, with Mulder, 186 N.W.2d 884 and First Lady, LLC., 2004 SD 69, 681 N.W.2d 94.

(52.) See generally Boll, 127 N.W. 577 (determining whether landowner may discharge water from his land onto another's land to its material damage).

(53.) Id. at 580.

(54.) Id.

(55.) Id. at 578.

(56.) Id. at 581-82 (emphasis added).

(57.) See generally Thompson v. Andrews, 165 N.W. 9 (S.D. 1917) (determining whether landowner may deepen a natural channel).

(58.) Id. at 10.

(59.) Id.

(60.) Id.

(61.) Id. at 10-11 (providing the materially distinguishable fact from the Boll case).

(62.) Id. at 12 (stating the civil law rule for drainage, which is still in effect today) (emphasis added).

(63.) Id. at 13.

(64.) Id. at 14.

(65.) Id. at 13.

(66.) 368 N.W.2d 621 (S.D. 1985).

(67.) Id. at 623.

(68.) S.D.C.L. [section] 46A-10A-20 (2004) (codifying of the civil rule of drainage law).

(69.) 22 N.W.2d 737 (S.D. 1946).

(70.) Id. at 739.

(71.) Id. at 740 (citing Thompson v. Andrews, 165 N.W. 9, 14 (S.D. 1917)). The over not on, or through not on concept was first seen in Thompson when the court recognized that although the lower landowner is burdened by an easement to accept discharged water that comes over his land within a natural dram way, the servient landowner is not obliged to accept the collection of discharged water on his land. Thompson, 165 N.W. at 14.

(72.) Johnson, 22 N.W.2d at 740 (citing Thompson, 165 N.W. at 14) (emphasis added).

(73.) 361 N.W.2d 259 (S.D. 1985).

(74.) Id. at 267.

(75.) Id. at 266 (quoting Sullivan v. Hoffman, 296 N.W.2d 707, 710 (Neb. 1980); Lahman v. Comm'r of Highways, 282 N.W.2d 573, 575 (Minn. 1979); RESTATEMENT (SECOND) OF TORTS [section] 846 (1942)) (emphasis added).

(76.) Id. at 266-67.

(77.) Id. at 267. A natural watercourse was defined as "a discrete channel, course, or stream for drainage, not widespread flooding and inundation of a servient tenant's lands" and cannot comprehend the entire acreage. Id.

(78.) 389 N.W.2d 633 (S.D. 1986).

(79.) Id. at 634.

(80.) Id.

(81.) See id. at 635-38. The first doctrine is that the water cast cannot be of an "unusual or unnatural quantity." Id. at 635 (citations omitted). The court reasoned that after the installation of the tiling, the manner of flow changed from what was a natural, forceful flow and now is a steady but slow flow which rendered the lands untillable and even produced weed growth, Id. at 636. The second doctrine is that water can only be drained through or over the servient lands in accordance with the legal easement but it cannot be cast upon or accumulate on the servient lands. Id. Here, the decrease in the force of the water allowed it to accumulate and inundate a significant part of the servient land so that an injunction and compensation were necessary. Id. at 637-38.

(82.) Id. at 636 (citing LaFleur v. Kolda, 22 N.W.2d 741, 744 (S.D. 1946)). The third doctrine is that drainage cannot cause an unreasonable burden to the servient land. Id.

(83.) 186 N.W.2d 884 (S.D. 1971).

(84.) See id. at 886.

(85.) See id. The reasonable use rule was subtle in the Thompson case, and then later adopted in the Feistner case by referring to Thompson for rural areas only. Feistner v. Swenson, 368 N.W.2d 621,623 (S.D. 1985) (citing Thompson v. Andrews, 165 N.W. 9, 13 (S.D. 1917)). There was no mention of the reasonable use rule's application for urban areas. Id. at 623-24.

(86.) Mulder, 186 N.W.2d at 886.

(87.) Id.

(88.) Id.

(89.) Id. at 885-86.

(90.) Id. at 888.

(91.) Id. at 889.

(92.) Id. at 887. No damages were awarded, but the defendant was enjoined because it was an unreasonable use of defendant's land to obstruct the natural flow as it interfered with the upper landowner's rights. Id. at 889.

(93.) Id. at 888. Additionally, the court looks at how the construction of houses and garages and how raising streets to grade of neighbors' lots have encroached upon the natural drainage channel and has accelerated the runoff due to these developments in the area. Id. Basically, grade, level, and topography must be looked at when determining whether an action was the reasonable use of the land in urban settings. See id.

(94.) Id. at 889.

(95.) 1998 SD 73, 581 N.W.2d 504. Professor John H. Davidson and Mr. Martin J. Weeks performed a thorough survey of the drainage cases up to 1997. Davidson, supra note 21 and accompanying text. The cases consisting of the remainder of this section supplement that work with the drainage cases since the publication of their article while emphasizing the continued support and application of the reasonable use rule. See infra Part II.B.

(96.) Knodel, 1998 SD 73, [paragraph][paragraph] 2-3,581 N.W.2d at 505.

(97.) Id. [paragraph][paragraph] 2, 4.

(98.) Id. [paragraph][paragraph] 4, 15.

(99.) Id. [paragraph] 5. Knodel argued that "(1) the Township delayed too long in discovering and repairing it; (2) the landowner acquired a prescriptive easement to be free from the flow of surface water from upper land; or (3) the neighbor abandoned any dominant drainage easement[.]" Id. [paragraph] 1.

(100.) Id. [paragraph] 11. The court refused to enjoin the Township from unplugging the culvert because, first, "reopening the culvert will only restore the natural drainage pattern and" without a showing of unreasonableness, Knodel cannot transfer the burden of the legal easement to accept the surface water. Id. [paragraph] 12. Second, the Township has a statutorily-conferred duty to maintain culverts and to not physically alter the manner of flow or materially increase the flow of surface water, Id. [paragraph] 14. Finally, the hardship which the upper landowner will suffer because of the accumulation of water on his land plus the cost of the road damage to the Township cannot be outweighed by the benefit Knodel enjoys by producing crops on the land. Id. [paragraph] 15.

(101.) Id. [paragraph] 7 (quoting Bruha v. Bocheck, 74 N.W.2d 313 (S.D. 1955)).

(102.) 1999 SD 74, 598 N.W.2d 507.

(103.) Id. [paragraph][paragraph] 2-3.

(104.) Id. [paragraph] 3.

(105.) Id. 74.

(106.) Id. [paragraph][paragraph] 5-6.

(107.) Id. [paragraph] 10.

(108.) Id. [paragraph] 7. "[A] landowner 'is legally privileged to make a reasonable use of his land, even though the flow of surface water is altered thereby and causes some harm to others.' The landowner, however, becomes liable 'when his harmful interference with the flow of surface waters is unreasonable.'" Id. [paragraph] 8 (quoting Mulder v. Tague, 186 N.W.2d 884, 889 (S.D. 1971)).

(109.) Id. [paragraph] 2.

(110.) Id.

(111.) Id. [paragraph] 3.

(112.) Id.

(113.) Id. [paragraph][paragraph] 3, 8.

(114.) See Thompson v. Andrews, 165 N.W. 9, 13 (S.D. 1917); Gross v. Conn. Mut. Life Ins. Co., 361 N.W.2d 259, 267 (S.D. 1985); Feistner v. Swenson, 368 N.W.2d 621,623 (S.D. 1985).

(115.) First Lady, 2004 SD 69, [paragraph] 11,681 N.W.2d at 99.

(116.) Id. [paragraph] 12. The court states seven factors but did not intend it to be an exclusive list and no single factor carries more weight: "(1) the respective uses of land and drainage water by each party; (2) topography; (3) volume and direction of drainage; (4) consequences of drainage; (5) effects of artificial changes in drainage, such as grading, hard surfaces, and artificial drains; (6) alternatives; and (7) avoidance of unnecessary injury." Id.

(117.) First Lady, L.L.C. v. JMF Properties, L.L.C., No. CIV. 02-1046, [paragraph] 5, at 10, (S.D. 7th Cir. June 24, 2005).

(118.) Id. [paragraph][paragraph] 9-19, 27.

(119.) See HAROLD H. DEERING, JR., & DIANE BEST, A REVIEW OF SOUTH DAKOTA DRAINAGE LAW 2 (rev. ed. 2005).

(120.) Infra Part III.

(121.) DEERING & BEST, supra note 119, at 2.

(122.) Id. at 25 ("recogni[zing] ... the diversity of conditions statewide in terms of climate and topography").

(123.) S.D.C.L. [section] 46A-10A-20 (2004). The statute provides:
   Legal controls for drainage management--Right to continue existing
   drainage. 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.


Id.

(124.) See generally DEERING & BEST, supra note 119, at 22 (explaining that although every case has different facts and circumstances, the counties may refer to these examples when performing their drainage duties).

(125.) S.D.C.L. [section] 46A-10A-16 (2004); S.D.C.L. [section] 46A-10A-17 (2004); see infra Part III.A.

(126.) S.D.C.L. [section] 46A-10A-20 (2004); see infra Part III.B.

(127.) S.D.C.L. [section] 46A-10A-34 (2004); S.D.C.L. [section] 46A-10A-35 (2004); see infra Part III.C.

(128.) DEERING & BEST, supra note 119, at 25; S.D.C.L. [section] 46A-10A-16.

(129.) S.D.C.L. [section] 46A-10A-1(7) (2004).

(130.) S.D.C.L. [section] 46A-10A-17.

(131.) S.D.C.L. [section] 46A-10A-16; DEERING & BEST, supranote 119, at 25.

(132.) DEERING & BEST, supra note 119, at 29.

(133.) Jay Gilbertson, Presentation at the Regional Watershed Advisory Task Force Meeting, Rural Drainage in South Dakota, at 22, 38 (July 23, 2012), available at http://www.legis.state.sd.us/interim/20 12/documents/WTF7-23-12DrainageSouthDakotaXIV.pdf.

(134.) BROOKINGS CNTY., BROOKINGS CNTY. DRAINAGE PLAN (2009), available at http://www.broo kingscountysd.gov/wp-content/uploads/2010/02/Drainage_Plan_7-21-20091.pdf[hereinafter BROOKINGS PLAN].

(135.) DAVISON CNTY., DAVISON CNTY. DRAINAGE PLAN (2008), available at http://davisoncounty .org/wordpress1/assets/Drainage-Plan-2008.pdf [hereinafter DAVISON PLAN].

(136.) LAKE CNTY., LAKE CNTY. DRAINAGE PLAN (2002), available at http://www.lakecountysd.com /pdf/LakeDrainPlan-26Jun2002.pdf [hereinafter LAKE PLAN].

(137.) LINCOLN CNTY., PROPOSED DRAFT OF THE 2011 DRAINAGE PLAN OF LINCOLN CNTY. (2011), available at http://www.lincoincountysd.org/userfiles/file/GIS/Drainage/2012%20Drainage%20Plan%20 accepted%20changes%20fxom%203rd%20run%20for%20march%208.pdf [hereinafter LINCOLN PLAN]. "The Plan ... was not adopted, though these drafts still serve as a guide for developing any new drainage systems or maintaining existing ones." Drainage Management, LINCOLN CNTY. S.D. (Jan. 13, 2011 09:28 AM), http://www.lincolncountysd.org/Page.cfm/Departments/99/Drainage-Management.

(138.) MINNEHAHA CNTY., MINNEHAHA CNTY. DRAINAGE PLAN (2001), available at http://www.minnehahacounty.org/dept/pl/drainage-information/drainage_plan/drainageplan.pdf [hereinafter MINNEHAHA PLAN].

(139.) YANKTON CNTY., YANKTON CNTY. DRAINAGE PLAN (2011), available at http://www.co.yankton.sd.us/LinkClick.aspx?fileticket=-6IR7mAMxig8%3D&tabid=73&mid=433 [hereinafter YANKTON PLAN].

(140.) See infra Part III.A. A total of 18 counties have drainage controls: Beadle, Brule, Clay, Davison, Deuel, Edmunds, Faulk, Grant, Hanson, Hutchinson, Lake, McCook, McPherson, Minnehaha, Moody, Roberts, Sanborn, and Spink. Gilbertson, supra note 133, at 38. This analysis is limited to six counties because they are representative of the twelve other drainage controls found throughout South Dakota. See infra Part.A.

(141.) DEERING & BEST, supra note 119, at 25, 29. South Dakota has a variety of water conditions and a diverse topography. M. at 25. The proliferation of drainage controls on the eastern side of the state is due to the humid climate, which supports dry land agriculture, in contrast to the western part of the state, which is semi-arid to arid land and does not have the climate or topography that gives rise to drainage issues experienced in the east. See John H. Davidson, South Dakota, in 6 WATER AND WATER RIGHTS 1019 (Robert E. Beck ed., repl. vol. 2005).

(142.) S.D.C.L. [section] 46A-10A-43 (2004).

(143.) BROOKINGS PLAN, supra note 134, at 2-3; DAVISON PLAN, supra note 135, at 3; LAKE PLAN, supra note 136, at 2-3; LINCOLN PLAN, supra note 137, at 1-2; MINNEHAHA PLAN, supra note 138, at 1-2; YANKTON PLAN, supra note 139, at 1-3.

(144.) See generally LINCOLN PLAN, supra note 137, at 2; LAKE PLAN, supra note 136, at 3.

(145.) LAKE PLAN, supra note 136, at 3.

(146.) LINCOLN PLAN, supra note 137, at 2.

(147.) S.D.C.L. [section] 46A-10A-31 (2004); see text accompanying supra note 142. See, e.g., BROOKINGS PLAN, supra note 134, at 4.

(148.) BROOKINGS PLAN, supra note 134, at 4; LAKE PLAN, supra note 136, at 3; LINCOLN PLAN, supra note 137, at 2; MINNEHAHA PLAN, supra note 138, at 2; YANKTON PLAN, supra note 139, at 4-5; S.D.C.L. [section] 46A-10A-30 (2004 & Supp. 2012); S.D.C.L. [section] 46A-10A-31 (2004) (stating any drainage manually altered prior to July 1, 1985 must be recorded to become vested). See Davidson & Weeks, supra note 21, at 57-65, for further information about vested rights.

(149.) See, e.g., YANKTON PLAN, supra note 139, at 5 (missing the method of notification to downstream landowners).

(150.) An Act to Require That Notice Be Provided Before Certain Drainage Activities Are Undertaken, H.B. 1243, 2012 Sess. (S.D. 2012), http://legis.state.sd.us/sessions/2012/Bills/HB1243P.pdf (emphasis added).

(151.) Id.; H. B. 1243, 87th Sess., H. JOURNAL, 349 (S.D. 2012) (referred House Bill Number 1243 to Local Government Committee, tabled, passed).

(152.) See, e.g., LAKE PLAN, supra note 136, at 4 (discouraging drainage between basins); YANKTON PLAN, supra note 139, at 5 (providing for careful determination of drainage between basins); see generally infra Part IV.A. & D. for further discussion of the conflicts and controversy this creates.

(153.) LAKE PLAN, supra note 136, at 4-5 (restricting wetland drainage); LINCOLN PLAN, supra note 137, at 3-4 (recognizing various benefits of wetlands).

(154.) See, e.g., BROOKINGS PLAN, supra note 134, at 6 (requiring balance between the necessity of drainage and the value of the wetland).

(155.) S.D.C.L. [section] 46A-10A-2 (2004 & Supp. 2012).

(156.) DAVISON COUNTY, DRAINAGE BOARD MINUTES OCT. 25, 2011, available at http://davisoncounty.org/wordpressl/assets/Drainage-Board-minutes-10-25-11.pdf; E-mail from Dan Sudrla, Drainage Administrator, to Katie Dahlseng, South Dakota Law Review staff writer (July 12, 2012, 4:33 PM CST) (on file with author).

(157.) Ross Dolan, Davison County, S.D., Commissioners Pass on Drainage Board, THE AMERICAN ABERDEEN NEWS, Sept. 28, 2011, http://articles.aberdeennews.com/2011-09-28/farmforum/30215485_1 _drainage-board-drainage-problems-drainage-matters. The county believes that it may be liable for damage done to property because of a drainage project for which the county granted a permit. Id. By having a separate board, which will be trained and educated in the effects of drainage projects, the board can better ensure responsible drainage. Id. However, there are still differing opinions about the role of the board, whether only to be educational and facilitate dispute resolution, or also award permits. Id.

(158.) See generally drainage plans, supra notes 134, 136-139 (Davison County is excluded because it appointed a separated board). Dolan, supra 157.

(159.) See, e.g., BROOKINGS PLAN, supra note 134, at 3-4. Brookings County views that having a drainage board would prolong the process of reviewing issues so it prefers to have the county commissioners hear the dispute first instead of on an appeal basis. Id.

(160.) S.D.C.L. [section] 46A-10A-43 (2004); see also BROOKINGS PLAN, supra note 134, at 7.

(161.) See, e.g., BROOKINGS PLAN, supra note 134, at 7.

(162.) DEERING & BEST, supra note 119, at 25. Maps were included at the end of the Minnehaha County Plan which provided visual aid for the layout of the wetlands, the named streams, and the drainage districts. MINNEHAHA PLAN, supra note 138, at 6-8. As an additional note on county drainage plans, municipalities are not bound by the county plan because urban and rural areas have different rules. S.D.C.L. [section] 46A-10A-41 (2004). As stated in the previous Part II.B., urban areas are controlled by reasonable use rule, and rural drainage must comply with civil law rule. See First Lady, LLC. v. JMF Properties, LLC., 2004 SD 69, [paragraph] 11,681 N.W.2d 94, 99 (stating reasonableness should be considered in urban areas); Knodel v. Kassel Township, 1998 SD 73, [paragraph] 7, 581 N.W.2d at 506 (providing rule for rural drainage). The 1985 legislation, however, called for synergy and allowed for a joint agreement between a county and a municipality within that county expressly for the "continuity in drainage matters." S.D.C.L. [section] 46A-10A-10 (2004).

(163.) See infra Part III.B. There are seventeen counties in the business of issuing drainage permits: Beadle, Brule, Clay, Davison, Deuel, Grant, Hanson, Hutchinson, Lake, McCook, MePherson, Minnehaha, Moody, Roberts, Sanborn, Spink, and Yankton. Provide for a uniform county drainage permit application form and to remove the maximum limit for drainage permit fees: Hearing on S.B. 179 Before the S. Comm. Local Government, 88th Legis. Assemb., Reg. Sess. (S.D. 2013) (statement of Sen. Vehle) (6:36-7:01), http://sdpb.sd.gov/SDPBPodcast/2013/slol5.mp3 (follow SDPB logo hyperlink to the right of "Local Government Motion to amend, Passed Amendment 179fa").

(164.) See S.D.C.L. [section] 46A-10A-46 (2004) (providing authority for adopting drainage ordinance). See, e.g., MOODY CNTY. S.D., DRAINAGE ORDINANCE 2009060201, [section] 106(1)-(4) (2007), available at http://www.moodycounty.net/wp-content/uploads/2010/12/Drainage-Ordinance.pdf [hereinafter MOODY ORDINANCE]. As an example, Moody County's drainage ordinance does not include a section regulating how to deal with drainage complaints. Id.

(165.) See, e.g., MINNEHAHA CNTY., S.D., DRAINAGE ORDINANCE MC38-10, [section] 7.09 (2010), available at http://www.minnehahacounty.org/dept/pl/pl_ordinances/2010_revised_drainage.pdf [hereinafter MINNEHAHA ORDINANCE]; LAKE CNTY., S.D., 2002 DRAINAGE ORDINANCE, [section] 2.15 (2005), available at http://www.lakecountysd.com/pdf/Lake%20County%20Drainage%20Ordinance.pdf [hereinafter LAKE ORDINANCE].

(166.) See, e.g., LAKE ORDINANCE, supra note 165, [section] 1.08 (resembling S.D.C.L [section] 46A-10A-1 (2004)). Watershed refers to "[t]he area of land which drains, either directly or indirectly, into a slough, pond, lake, stream or water course." Id. [section] 1.08(105). Drainage project means "[a]ny man-made improvements constructed or installed with the intent to drain water." Id. [section] 1.08(40). Servient estate means "[a]ny parcel of real property, usually at a lower elevation, which is subject to a legal right allowing a dominant estate to drain water onto it." Id. [section] 1.08(75).

(167.) MINNEHAHA ORDINANCE, supra note 165, [section] 1.03, 1.06 (listing specifically the projects the Administrator can approve). The title could be "drainage administrator," "county drainage official," or "administrative official." Compare YANKTON CNTY., S.D., DRAINAGE ORDINANCE # 19, [section] 2.01 (2011), available at http://co.yankton.sd.us/LinkClick.aspx?fileticket=QKdEZU8yPt4%3D&tabid=73&mid=433 [hereinafter YANKTON ORDINANCE], with MOODY ORDINANCE, supra note 164, [section] 101(8.02), with MINNEHAHA ORDINANCE, supra note 165, [section] 6.01(5). Clay County uses the board of commissioners as a whole to administer its ordinance, providing criteria to consider when determining whether to approve an application. CLAY CNTY., S.D., ORDINANCE #94-5, [section] 109-10 (1994), available at http://www.claycountysd.org/download_doc.php?sdoc_id=430 [hereinafter CLAY ORDINANCE]. The criteria to guide the board whether to approve or deny a permit for drainage is based on the permit's effect on public right-of-way or utilities. Id. The board should consider whether the drainage is along a highway which lacks capacity to handle the additional quantity, whether the additional water would "expose, weaken, or endanger existing" utilities, or "[w]hether drainage is accomplished by reasonably improving" a natural watercourse or artificial drain system. Id.

(168.) MOODY ORDINANCE, supra note 164, [section] 106.

(169.) See, e.g., MINNEHAHA ORDINANCE, supra note 165, [section] 2.0; BRULE CNTY., S.D., DRAINAGE PERMIT ORDINANCE, [section] 107, 109 (1992), available at http://www.midstatesd.net/~brultreas/doc/Drainage _Ordinance.pdf [hereinafter BRULE ORDINANCE]. Ordinances provide criteria for determining statewide significance, such as if the proposed drainage project would affect a governmental property, lands that have wildlife or fishery value, and land of another county. See, e.g., BEADLE CNTY., S.D., TITLE 2 DRAINAGE, [section] 15 (2010), available at http://beadle.sdcounties.org/files/2010/07/Title-2-DRAINAGE.docx [hereinafter BEADLE ORDINANCE]. Other factors are whether the proposed drainage is of a meandered lake or if the drainage would convert a noncontributing area into a permanently contributing area "based on [a] twenty-five year rainfall event." McCOOK CNTY. S.D., 2011 REVISED DRAINAGE ORDINANCE OF McCOOK CNTY., S.D. 2011-01, [section] 208 (2011), available at http://mccookcou ntysd.com/drainage/Ordinance%202011-01.pdf A meandered lake is "[a]ny pond, slough, or lake which has had its boundaries established by metes and bounds in the documents of record or in the survey of public lands by the government of the United States." Id. [section] 108.13.

(170.) See, e.g., LAKE ORDINANCE, supra note 165, [section] 2.01; CLAY ORDINANCE, supra note 167, [section] 103.

(171.) See, e.g., MCCOOK ORDINANCE, supra note 169, [section] 201, 204. Some counties also exempt the permit requirements for repair, replacement, or improvement projects that are less than twenty acres beyond vested drainage rights. See, e.g., MOODY ORDINANCE, supra note 164, [section] 102.

(172.) See, e.g., YANKTON ORDINANCE, supra note 167, [section] 3.02.

(173.) See, e.g., CLAY ORDINANCE, supra note 167, [section] 104.

(174.) Id.

(175.) YANKTON ORDINANCE, supra note 167, [section] 3.15. The maximum fee may not exceed $100.00. S.D.Ci. [section] 46A-10A-30 (2004 & Supp. 2012). The Senate proposed a bill to extinguish this limitation so there would be no maximum fee prescribed by statute; however, an amendment was proposed on February 13, 2013 to defeat that change and maintain the maximum fee. Provide for a uniform county drainage permit application form and to remove the maximum limit for drainage permit fees." Hearing on S.B. 179 Before the S. Comm. Local Government, 88th Legis. Assemb., Reg. Sess. (S.D. 2013) (statement of Sen. Vehle) (6:36-7:01), http://sdpb.sd.gov/SDPBPodcast/2013/slo15.mp3 (follow SDPB logo hyperlink to the right of "Local Government Motion to amend, Passed Amendment 179fa"). Proponents for the bill's uniform permit application provision believe it is necessary because many people are dealing with drainage differently, and commissioners need guidance to prevent litigation issues. Id. (statement of Paul Symens) (01 : 16:55-01:21:22), http://sdpb.sd.gov/SDPBPodcast/2013/ slo15.mp3 (follow SDPB logo hyperlink to the right of "Scheduled for hearing" on January 30, 2013).

(176.) See, e.g., LAKE ORDINANCE, supra note 165, art. 3; MCCOOK ORDINANCE, supra note 169, art. 3; MINNEHAHA ORDINANCE, supra note 165, art. 3.

(177.) See, e.g., MINNEHAHA ORDINANCE, supra note 165, [section] 2.02.

(178.) See, e.g., id. art. 3. To establish a coordinated drainage district, no less than twenty-five percent of the landowners in the area shall sign a petition and file it with the county auditor including a survey, map of boundaries, and details of the type of drainage project. Id. [section] 3.05. To request repairs requires approval of at least sixty percent of the landowners within the benefitted area because those landowners will pay the assessments for the necessary repairs to the drainage district. Id. [section] 3.01. A public hearing then follows. Id. To abandon a district requires that at least twenty-five percent of the district's property owners file with the county auditor; if less than a majority of the landowners do not sign the petition, an election shall be held for all property owners within the district to decide if the district should be abolished. Id. [section] 3.04.

(179.) E-mail from Jon Peters, CFM, Lincoln County Floodplain Administrator, to Katie Dahlseng, South Dakota Law Review staff writer (July 30, 2012, 2:34 PM CST) (on file with author).

(180.) LINCOLN CNTY., S.D., ORDINANCE NO. 1202-09 (2012), available at http://lincolncountysd.or g/userfiles/file/GIS/Floodplain/Spring%20Creek%20Tributary/Ordinance/Spring%20Creek%20Trib%20 Coordinanted%20Drainage%20Area%20Ordinance%20%2002-28-12%20Official.pdf; E-mail from Jon Peters, supra note 179.

(181.) Spring Creek Tributary Flood Mitigation Project, LINCOLN CNTY., S.D., http://lincolncountysd .org/Page.cfm/Information/110/Spring-Creek-Tributary-Flood-Mitigation-Project (last visited Nov. 23, 2012).

(182.) Infra notes 184-187 and accompanying text.

(183.) See, e.g., MINNEHAHA ORDINANCE, supra note 165, [section] 2.04.

(184.) MOODY ORDINANCE, supranote 164, [section] 111.

(185.) BRULEORDINANCE, supranote 169, [section] 111.

(186.) YANKTON ORDINANCE, supra note 167, [section] 3.04.

(187.) CLAY ORDINANCE, supra note 167, [section] 106. The administrative official or board of county commissioners predicts which property owners would be affected and to what extent. Id. In McCook County, "the [a]dministrative [o] fficial shall provide notice of the application by mail to all the adjoining property owners of the proposed drainage project." MCCOOK ORDINANCE, supra note 169, [section] 202.

(188.) Ken Curley, County Repeals Drainage Ordinance, THE BROOKINGS REGISTER (Dec. 23, 2011), http://www.brookingsregister.com/v2_news_articles.php?heading=0&page=76&story-id=13145; TURNER CNTY., S.D., ORDINANCE #43-11 (2011).

(189.) H.B. 1243, 2012 Sess. (S.D. 2012), http://legis.state.sd.us/sessions/2012/Bills/HB1243P.pdf.

(190.) Id.

(191.) The author compiled this summary table by referencing the various sources cited in this article; SPINK CNTY., S.D., TITLE 6 (2011), available at http://www.spinkcounty-sd.org/zoning/TITLE%206%2 0Effective%20April%205,%202011.pdf.

(192.) See, e.g., YANKTON ORDINANCE, supra note 167, art. 5.

(193.) Id. [section] 5.01.

(194.) See, e.g., McCOOK ORDINANCE, supra note 169, art. 4; MINNEHAHA ORDINANCE, supra note 165, art. 4.

(195.) See E-mail from Dan Sudrla, supra note 156.

(196.) S.D.C.L. [section] 46A-10A-2 (2004 & Supp. 2012).

(197.) E-mail from Dan Sudrla, supra note 156.

(198.) See MCCOOK ORDINANCE, supra note 169, art. 4.

(199.) Drainage, MCCOOK CNTY., S.D., http://www.mccookcountysd.com/drainage/index.php (last visited Feb. 12, 2012).

(200.) See, e.g., McCOOK ORDINANCE, supra note 169, art. 4.

(201.) Infra Part IV.

(202.) Infra Part IV.

(203.) See Curley, supra note 188.

(204.) E-mail from Roberta Janke, Lake County Auditor, to Katie Dahlseng, South Dakota Law Review staffwriter (June 26, 2012, 8:16 AM CST) (on file with author).

(205.) Id. Moody County engaged the public to vote whether to keep or repeal its ordinance, and the people elected to keep it citing a desire to keep local control of drainage permits. E-mail from Jerry Doyle, Moody County Commissioner, to Katie Dahlseng, South Dakota Law Review staff writer (June 6, 2012, 3:31 PM CST) (on file with author). Mceook County citizens like the permit system and hope that it continues. E-mail from Michael Kreutzfeldt, McCook Drainage Administrator, to Katie Dahlseng, South Dakota Law Review staffwriter (July 13, 2012, 10:02 AM CST) (on file with author).

(206.) E-mail from Roberta Janke, supra note 204.

(207.) Interview with Karen Layher, Grant County Commissioners' Assistant (July 25, 2012, 9:07 AM CST) (transcript notes on file with author).

(208.) See E-mail from Dustin Powers, Minnehaha County Planner I, to Katie Dahlseng, South Dakota Law Review staff writer (June 19, 2012, 1:48 PM CST) (on file with author).

(209.) Id. The revisions in 1999, 2001, and 2010 were made "to accommodate for the increase[d] usage of agricultural drainage, primarily tiling[.]" Id. Minnehaha County now requires that notification must be sent by certified mail to all downstream landowners within one-half mile from the project and allows for larger drainage projects. MINNEHAHA ORDINANCE, supra note 165, [section] 1.07.

(210.) E-mail from Jerry Doyle, Moody County Commissioner, to Katie Dahlseng, South Dakota Law Review staff writer (June 6, 2012, 3:31 PM CST) (on file with author).

(211.) Id. It was proposed that the outcome tends to be better received by each landowner when deliberating the problem themselves instead of by a judge. See id.

(212.) MOODY ORDINANCE, supra note 164; E-mail from Dave Stenberg, Moody County Commissioner, to Katie Dahlseng, South Dakota Law Review staff writer (July 23, 2012, 7:01 PM CST) (on file with author). The County revised the Ordinance in 2009 so that it included a preference for the use of a Federal Emergency Management Agency ("FEMA") blue line map to chart the outlet of drainage waters, ld. The size of the map used a 7.5-minute topographical map, scaled to 1:24,000, provided by the United States Geological Survey (which mapped the contours of the entire country's terrain) so the discharge outlet can be geologically determined. See USGS Maps: Topographic Maps, UNITED STATES GEOLOGICAL SURVEY, available at http://egsc.usgs.gov/isb/pubs/booklets/usgsmaps/us gsmaps.html (last modified Apr. 13, 2005).

(213.) Nathan Johnson, Drainage Ordinance To Take Effect June 1, YANKTON DAILY PRESS & DAKOTAN (May 19, 2012), http://www.yankton.net/articles/2012/05/19/community/doc4fb7134d49dc09 35516469.txt.

(214.) MOODY ORDINANCE, supra note 164, [section] 106. A blue line map provides the drainage official with more knowledge about the proposed project when reviewing an application. Id.

(215.) E-mail from Michael Kreutzfeldt, supra note 205.

(216.) Johnson, supra note 213; E-mail from Gary Vetter, Brown County Planning and Zoning Director, to Katie Dahlseng, South Dakota Law Review staff writer (July 16, 2012, 10:25 AM CST) (on file with author).

(217.) Johnson, supra note 213; YANKTON ORDINANCE, supra note 167, art. 3, 5.

(218.) Johnson, supra note 213.

(219.) E-mail from Gary Vetter, supra note 216.

(220.) Id.

(221.) See infra notes 222-226 and accompanying text.

(222.) Ron Gillen, Presentation at the Regional Watershed Advisory Task Force Meeting, South Dakota Drainage Issues, Drainage Studies & Litigation, Providing Initial Input (Oct. 3, 2012) available at http://legis.state.sd.us/interim/2012/documents/WTF09-25-12SDDrainageIssuesStudiesLitigation.pdf (presented before the Task Force on Sept. 25, 2012).

(223.) See id. Brookings County Commission Chairman Alan Gregg confessed, "I think we're making judgment on things we're not experts at ... I don't have a clue about drainage tile. I know absolutely nothing about it." Curley, supra note 188.

(224.) Watershed Management, SOUTH DAKOTA FARM BUREAU (July 2012), http://www.sdfbf.org/files/website/SDFB%202012%20Watershed%20Management.pdf; Dolan, supra note 157.

(225.) Hanson, supra note 26, at 180.

(226.) See Curley, supra note 188.

(227.) See id. Brookings County hopes that by repealing its ordinance, state legislators will pass new laws to replace what Brookings County believes to be inefficient current laws. See id.

(228.) Id. One commissioner was empathic to protecting the farmers. Id. Director Robert Hill acknowledged that even though some parts of the ordinance are unenforceable, other parts are needed for regulating drainage practices, so it left the drainage plan in place. Id.

(229.) E-mail from Sheila Hagemann, Turner County Auditor, to Katie Dahlseng, South Dakota Law Review staffwriter (July 16, 2012, 2:35 PM CST) (on file with author).

(230.) See Sand, supra note 4; Terry O'Keefe, Grant Co. Considers Drainage Options, ABERDEEN NEWS (Aug. 23, 2011), http://articles.aberdeennews.com/2011-08-23/farmforum/29920932_1_drainage-landowners-farm-land (Grant County's State Attorney Mark Reedstrom opined from repeal and return to "grassroots regulation" using state law).

(231.) See supra Part IV.A. See also 2011 S.D. Spec. Sess. Laws 480; S.B. 169, 86th Sess. (S.D. 2012).

(232.) 2011 S.D. Spec. Sess. Laws 480; S.B. 169, 86th Leg. (S.D. 2012).

(233.) First Meeting, supra note 28, at 1.

(234.) Id.; 2011 S.D. Spec. Sess. Laws 480; S.B. 169, 86th Leg. (S.D. 2012).

(235.) 2011 S.D. Spec. Sess. Laws 480; S.B. 169, 86th Leg. (S.D. 2012).

(236.) Amundson, supra note 12.

(237.) Id. (citing Task Force member Senator Frerichs).

(238.) See infra note 240 and accompanying text; Harriman, supra note 18.

(239.) See Harriman, supra note 18.

(240.) Id. "'Managing on a watershed basis is crucial, very crucial,' Frerichs said. 'That's not just my opinion as a farmer and legislator. I've talked to experts on both sides of this, and they can't agree more that the way to manage water is from a watershed basis.'" Id.

(241.) Id.

(242.) Id. (quoting Senator Frerichs).

(243.) Id.

(244.) Id.

(245.) Id. Drainage may have great payoffs for farmers, but too much could result in more flooding so experts are needed to analyze and help manage the flow by approving or denying permits for new projects or repairs. See id.

(246.) First Meeting, supra note 28, at 3. Mr. Lorin Pankratz of the Watershed Management Working Group within Ag Unity hopes for the appointment of a state engineer whose job would be to advise commissions. See id. This suggestion was further supported by Mr. Patrick Garrity, Yankton County Planning Director, who wants a "state hydrologist or state engineer available as a resource to review permits as needed" yet keeping local control with the each commission. Id. at 4.

(247.) S.D.C.L. [section] 46A-10A-6 (2004).

(248.) South Dakota Drainage Issues, Drainage Studies & Litigation, Providing Initial Input, supra note 222.

(249.) Id.

(250.) Id.

(251.) Id.

(252.) Sugg, supra note 27, at 1-2.

(253.) See, e.g., Wendy Royston, County Officials Exploring Changes for Drainage Board, HUTCHINSON HERALD, July 6, 2011, at 1, available at http://hut.stparchive.com/Archive/HUT/HUT070 62011p01.php.

(254.) Id.

(255.) First Meeting, supra note 28, at 3.

(256.) Id. at 3, 5.

(257.) Harriman, supra note 18. Senator Krebs hopes that the Task Force can provide "recommendations next year that legislators can work with and amend, if necessary, for passage in 2014." Id.

(258.) S.B. 179, 88th Legis. Assemb., Reg. Sess. (S.D. 2013) (amendment passed, bill deferred).

(259.) S. Comm. Local Government, supra note 175, at 01:16:55-01:21:22.

(260.) Kjaersgaard, et al., Watershed Management, IGROW SDSU EXTENSION 2 (July 2012), available at http://www.legis.state.sd.us/interirn/2012/documents/WTF09-25-12WatershedManagement SDSU.pdf. "Watershed management refers to land use practices that ensure effective stewardship of water quality and quantity." Id.

(261.) See First Meeting, supra note 28, at 4. Additionally, a watershed organization would create authority to enforce the maintenance of dikes and cleaning debris from rivers. Id.

(262.) Kjaersgaard, et al., supra note 260, at 2.

(263.) Id. South Dakota has 14 major river basins and all but three are in more than one state. Id. at 3. The EPA recommends the following five steps: "1) planning; 2) collecting data; 3) assessing current water quality and targeting desired standards; 4) developing goals and strategies to reach those standards; and 5) implementing strategies and measuring their effectiveness." Id. at 3-10.

(264.) Id. at 3.

(265.) PENNINGTON CNTY., SPRING CREEK WATERSHED MANAGEMENT AND PROJECT IMPLEMENTATION PLAN SEGMENT 2, [section] 2.2 (Jan. 2012), available at http://www.springcreekblackhills.c om/_docs/segment2.pdf; see Kjaersgaard, et al., supra note 260, at 2. See also SPRING CREEK WATERSHED, http://www.springcreekblackhills.com/index.html (last visited Feb. 13, 2013) (providing general information about this watershed basin plan).

(266.) See PENNINGTON CNTY., supra note 265, [section] 3.1-3.2, 5.3, 6.0.

(267.) About VLA WMO, VADNAIS LAKE AREA WATER MGMT. ORG., http://www.vlawmo.org/aboutu s.cfm? ID=72&PID=74&siteID=1 (last visited Feb. 13, 2013).

(268.) See Harriman, supra note 18 (discussing the Task Force and how water transcends political boundaries).

(269.) See id.

(270.) See id.

(271.) Id.

(272.) S. Con. Res. 5, 87th Sess., S. JOURNAL 335-37 (S.D. 2012).

KATIE JANE DAHLSENG, J.D. Candidate, University of South Dakota School of Law, 2014.
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