A circuit court judge has sided with a Mount Vernon farmer who appealed a drainage permit decision from the Davison County Drainage Commission earlier this year.
In a memorandum decision dated July 28, First Circuit Court Judge Patrick Smith sided with Kenneth Hostler, writing that the application from John Millan was missing key information that the commission needed to make a decision, including information about a federal wildlife easement, elevation of the inlet and outlet locations, and hydrological evidence.
“If it is Millan’s intention to install 315,000 feet of drain tile intended to solely remove surface water onto servient lands, the application should provide all the hydrological evidence called for in the application, which must be presented to the Commission for its consideration, to protect the interests of all property owners in the area,” Smith wrote. “Therefore, because the commission did not consider evidence on all the factors which the Davison County Drainage Ordinance requires be considered prior to granting a drainage permit, the Commission abused its discretion in granting the permit.”
Millan, of Mitchell, had two permits approved March 17, and Hostler verbally opposed one of them during the meeting, which would have water flow northward through small outlets and culverts, under Interstate 90 and Old Highway 16 and eventually into Dry Run Creek. The land and the drainage proposal in question is located in the southwest corner of Beulah Township.
According to the Drainage Commission's meeting minutes, Hostler was concerned about the elevation of the project, the amount and the duration of the water he will have on his property, a nearby culvert and the condition of the creek downstream. The permit that Hostler spoke against was approved by a 5-2 margin.
The county’s drainage ordinance requires it to consider “fish and wildlife values,” when approving a permit. Smith wrote that there is no evidence that the county drainage board considered those values prior to granting the permit and Millan didn’t disclose that there was a federal wildlife easement on his land as part of the permit application.
Millan had argued that the easement didn’t make his permit invalid because he was placing less drain tile than what was approved by the board. But Smith wrote that even placing less drain tile than what is outlined in a plan approved by the board would still fit the county’s definition of modifying and altering the drainage work in any way.”
Smith wrote that the application didn’t provide evidence concerning the volume of water being drained and how it would be handled on Hostler’s land or Dry Run Creek.
“While this court makes no finding as to weather the permit should be granted upon reapplication, it is instructive for the commission in so determining, that according to the (South Dakota) Supreme Court, ‘it is impermissible for a dominant landowner to collect surface waters and then cast them upon the servient estate in unusual or unnatural qualities,”” Smith wrote, citing prior state Supreme Court decisions.
The decision requires Millan to file a new application to receive a drainage permit. The Davison County Drainage Commission is set to hold its next meeting at 7 p.m. Aug. 18.