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

• Author: Dahlseng, Katie Jane

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.

1. 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)

2. BACKGROUND

   1. 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)

   2. 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...