A battle over a rural Davison County drainage permit is going to the South Dakota Supreme Court, while a recent circuit court ruling turned back a second attempt to approve the permit.

The request from defendant John Millan, of Mitchell, for a drainage permit on his land between Mitchell and Mount Vernon, will go before the South Dakota Supreme Court on April 26. The court will consider non-oral arguments in the case on April 26.

The First Circuit Court has sided with plaintiff Kenny Hostler, of Mount Vernon, who has argued that the project would impact his land. Millan and Davison County are appealing a August 2020 decision that said that Millan failed to meet his burden of proof in the drainage permit application and that the Davison County Planning Commission abused its discretion when it initially granted the permit in March 2020. In the first court ruling, First Circuit Court Judge Patrick Smith ruled that Millan’s initial application was missing key information.

Three days after that court ruling was filed, on Aug. 10, 2020, a new permit for Millan Acres was approved by Davison County Drainage Administrator Jeff Bathke, without the county Drainage Commission meeting.

Earlier this month, a second First Circuit Court judge ruled that permit is also invalid, siding with Hostler again.

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Drainage permits in Davison County can be approved by the administrator without going to the county’s Drainage Commission if they meet specific criteria. That criteria includes drainage projects that involve the county’s major creeks and rivers, such as Firesteel Creek, Enemy Creek, the James River or Dry Run Creek. The criteria also allows for approval if signed waivers are received for upstream landowners within a half-mile, downstream landowners within 1 mile and landowners within a quarter-mile of the center of the drain area. Six signed waivers, including one from Millan, were included with the permit, and based on the county’s criteria and mapping, Hostler was not a landowner who had to sign a waiver to allow the permit to proceed.

The judgment, signed by Judge Chris Giles, declared that administrator provisions allowing for the county drainage administrator to individually approve new drainage projects is in conflict with the state’s drainage code, and that the code requires a petition, notice and a hearing by a drainage commission. The decision also violated Hostler’s due process rights, according to the judgment.

The land in question is about 5 miles east of Mount Vernon and about 8 miles west of Mitchell near Interstate 90. According to court documents, four parcels of Millan’s land would be affected by the drainage plan, covering 350 acres and would include 315,000 feet of drain tile, mostly being perforated drain tile.

A third attempt

The issue is not soon likely to go away. A third attempt at getting approval for the drainage application from Millan and Millan Acres is before the Davison County Drainage Commission later this month. The application, filed on April 2, is 79 pages long, and notes that the project would follow the natural topography of the land, with the drain tile installed a few feet below the surface of the ground. The drainage, the application explains, would allow water to drain at a slower rate with less surface water runoff because there is more room in the soil profile for excess water in the event of a heavy rain.

“The perforations in the tile also help aerate the soil, which reduces soil compaction, provides better conditions for root growth and improves crop yields,” the Millan Acres application said.

The most recent application has a detailed map of the field tile design, a wetland analysis, USDA Natural Resources Conservation Service soil survey information and includes the expert witness testimony of Joel Toso, a hydraulics and civil engineer at Barr Engineering, of Bismarck, North Dakota. In a technical memorandum meant to analyze August 2020 tiling work done by Millan Acres, Toso wrote that reviewing the impact of a tiling system on a downstream area involves looking at the carrying capacity of the downstream channel in relation to the estimated increase in discharged water.

“The impact of the Millan Acres project and the Hostler property is that the swale through the property to Dry Run Creek may be temporarily wetter in the spring,” Toso wrote. “The impact during the growing season will be insignificant.”

Toso wrote that there is not a feasible alternative to the project for Millan Acres.