Hanson County dairy opponents attack water permit in courtLawyer: Notices were improper, aquifer research insufficient.
By: Anna Jauhola, The Daily Republic
ALEXANDRIA — The Concerned Citizens of Hanson County asked District Court Judge Sean O’Brien on Friday to throw out a state water permit granted last year for a proposed 7,000-head dairy in Hanson County.
About 60 people attended the hearing at the Hanson County Courthouse. The developer of the proposed dairy, Michael Crinion, attended Friday’s hearing, as did dairy opponents Robert Bender and Stace Nelson.
R. Shawn Tornow, attorney for the Concerned Citizens, said newspaper legal notices and letter notices about a July hearing on the permit sent to Bender and Nelson were insufficient and improper.
The South Dakota Water Management Board published notices last April regarding the hearing, and the letter notices were sent in May. The hearing was in July.
Tornow claimed the newspaper notice did not comply with state statute, which he said requires the notice to clearly describe the hearing as adversarial.
He also argued the notice did not specifically give interveners a recommendation about where to find information regarding the hearing.
“Any notices required by statute must be in strict compliance,” Tornow said. “You’ll hear from the other side that we don’t need to parrot the language in statute. I don’t know about parroting, but the appellants weren’t given notice for where to get information.”
Diane Best, an assistant state attorney general, said all the notices were adequate, as evidenced by the presence of Bender and Nelson at the July hearing.
“Further, the May 23 notice was simply a reminder, not a notice of hearing,” she said.
As for strictly adhering to the rules of posting a newspaper notice, Best said, “strict means to comply with statute.”
She argued newspaper notices do not have to repeat a statute verbatim.
“That’s nonsense,” she added. “You have to insert some language for it to make sense. You can’t use verbatim the entire law.”
She said when placing state statute into a notice, independent judgment about the wording is necessary.
Best argued the newspaper notice that Tornow alleged didn’t provide adequate information on how to get copies of the recommendation for a water permit did in fact provide a phone number and address for Eric Gronland, a state natural resources engineer with the Water Rights Program. The notice stated information and applications could be obtained from Gronlund.
She said that constitutes substantial compliance, which she argued is the only compliance necessary for the newspaper notice.
In another line of attack, Tornow argued that the state’s research on an affected aquifer was insufficient to grant a permit.
Tornow said the chief engineer for the state Water Management Board not only referred to the wrong aquifer in his report, he didn’t calculate whether the aquifer can handle the withdrawal of 720,000 gallons of water per day.
The Hanson Dairy water permit would allow the dairy to drill wells into the James-East Floyd Aquifer. The Concerned Citizens are worried the aquifer may not always be able to recharge, or refill, after it’s been tapped.
Tornow said the chief engineer should have calculated how the dairy drawing from the aquifer would affect the annual recharge rate.
“The failure to do so, that ends the argument,” Tornow said. “He failed to answer whether the recharge rate will be there if there’s a 720,000-gallon draw-down per day.”
He said the Water Management Board should not have approved the permit, because of the engineer’s mistake.
“The failure to make that conclusion, under statute, is a reversible error,” he said.
Best said the chief engineer studied information available to him through the Water Rights Program, which stated the aquifer has been maintained with steady water levels over the last 30 years.
“There’s been no decline in the aquifer. There’s an enormous amount of water in the aquifer with little use,” she said.
She added the aquifer has been studied through a nearby observation well, which was the information the chief engineer used in his conclusion that 720,000 gallons of water withdrawn per day would not hurt the aquifer.
Judge O’Brien said he will review the attorneys’ written briefs, records and transcripts and issue a written decision in the near future.
“Obviously this is an issue of importance to many people, as it should be,” O’Brien said. “Water is the lifeblood of agriculture and of the people that rely on it.”