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Dairy opponents seek to move hearing

ALEXANDRIA -- Opponents of a proposed 7,000-head dairy in Hanson County argued Thursday that a hearing to rule on the dairy's water permit application should not be held before the state Water Management Board.

During a telephone hearing before Hillary Brady, chief hearing examiner for the state Office of Hearing Examiners, the dairy opponent's attorney R. Shawn Tornow argued the dairy's application for a water permit should be considered before the Office of Hearing Examiners and not the state Water Management Board, as is usually the case.

Thursday's hearing came as a result of a ruling in April, in which a judge remanded the dairy's water permit back to the state Water Management Board for reconsideration. If issued, the proposed dairy's water permit would allow it to pump 720,000 gallons per day from the Floyd East James Aquifer.

The water permit issue was scheduled to go before the board in September, but that could change if Brady decides to move the hearing.

For the hearing to be moved, state law says the amount in controversy must exceed $2,500, or there must be a risk of a property right being terminated. State regulations allow involved parties in such a case to seek the use of the Office of Hearing Examiners by giving notice of the request no later than 10 days after service of a notice of hearing. According to testimony Thursday, the Concerned Citizens of Hanson County, the group organized as a nonprofit corporation in opposition to the dairy, made the request within the 10-day limit.

The group's president, Robert Bender, of Fulton, and one of its directors, state Rep. Stace Nelson, R-Fulton, both live within a few miles of the planned location of the dairy, which is about two miles northeast of Fulton. They testified Thursday they are concerned the dairy's water use would adversely affect the wells on their property and could force them to spend thousands of dollars switching to Hanson Rural Water.

South Dakota Assistant Attorney General Diane Best, representing the Department of Environment and Natural Resources, argued in favor of keeping the hearing before the state Water Management Board.

"(The board) is specifically set forth by statute to hear water cases," she said. Best argued the hearing doesn't need to be moved, as it doesn't meet the property-right risk or monetary requirements set by state law.

"It's pretty clear that this matter must go back to the water board," she said.

Attorney Eric Kerkvliet, appearing for the dairy, and attorney Gary Schumacher, appearing for Ag United, a coalition of farm organizations, both supported Best's argument.

Tornow disagreed, arguing both the requirements for moving the hearing had been met.

"The Concerned Citizens of Hanson County don't understand in any way shape or form why the state is so against a neutral entity like the Office of Hearing Examiners hearing this case," he said.

At the conclusion of the hearing, Brady said she will issue a written decision as soon as possible but gave no specific date.