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Some counties ill-equipped to assess and permit water drainage projects

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Farm fields in the Midwest often have drain tile under them.

Water management is big business in South Dakota farm country, especially in East River, and that's where most of the state's drain tile is installed. Drain tile is a perforated pipe buried under farmland to remove excess water during wet seasons. That stabilizes the water table for the crops a farmer has planted.

The number of drain tile projects increased in eastern South Dakota in the 2000s, generally because of increased precipitation and demand for higher yields. And sometimes, those projects can pit neighbor against neighbor.

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In an attempt to keep things local, the state gives county commissions the authority to assess and permit drain tile projects.

The permit program is voluntary and some counties have never participated. That means they have no public authority assessing or permitting drain tile projects.

Some counties that have opted into assessing projects and issuing those permits have found themselves in court.

In 2020, The Mitchell Daily Republic reported that John Millan of Davison County received a permit from the county drainage administrator to drain tile some of his land.

However, Kenny Hostler, who farmed nearby, argued that the project would negatively impact his land.

The case went to the South Dakota Supreme Court, and because Davison County granted Millan the permit, the county found itself caught up in the legal battle.

Cases like this are a red flag for some county attorneys.

About a year ago, the Grant County Commission revoked its drain tile permitting program out of fear of litigation.

Grant County Commissioner Bill Tostenson said a permitting program is too complex for a county to administer.

"You have to understand it's five commissioners that are not hydrologists in any way or experts in the criteria that we need to follow in the ordinance," Tostenson said.

Grant County residents successfully petitioned to reinstate the program; however, Tostenson said the county is still concerned about being held liable for damages.

"Some folks say, 'Well, nobody will sue or the liability is not there,' but it is always there," Tostenson said.

The cumbersome and costly nature of the current system means about one-third of South Dakota's East River counties, where the most drain tiling happens, never adopted a drain tile permit program. And as of 2019, 10 counties that once had a program have eliminated it, according to a drainage report by Jay Gilbertson, manager of the East Dakota Water Development District.

Brad Johnson served as chairman of the South Dakota Board of Water and Natural Resources for 16 years and is a real estate appraiser. He's been involved in a number of court cases involving drain tile.

“The bottom line is South Dakota's drainage laws are terrible. The laws generally say that you cannot cause downstream damage with any drainage project, but it puts all of the burden on the downstream property owner to prove that damage occurred,” Johnson said. “And that is almost impossible to do. It’s extremely expensive litigation, bleeds the damaged victim dry, financially.”

For Johnson, the status quo is unacceptable.

“We're creating two classes of property owners by allowing the unbridled drain tiling that we’re enabling." Johnson said. "We create landowners that have very valuable cropland at the expense of lower downstream landowners who see their land values decrease because of the water that is being shifted from one place to another. And so it's almost legalized theft.”

Even if a county has a drain tile permitting program, they’re unlikely to have the funds required to do a thorough analysis of a project.

Jay Gilbertson said a big problem with the current program is the way it’s funded.

“A county can charge no more than $100 for a permit,” Gilbertson said. “Even though the language also says the fee is intended to cover all the administrative costs involved in the issuance of the permit."

Commissioner Tostenson said that was a reason Grant County wanted to get out of administering a drain tile permit program.

“We have a drainage administrator, and we have the hearings, and we have our insurances, and we have our state's attorneys' salaries, and then if we have to call in anybody for expert testimony, those things cost money. Well, $100 certainly does not cover the cost," said Tostenson.

Even some of those laying the drain tile say that county commissioners are rarely qualified to make these decisions.

Bryce Gillen, who runs Gridline Field Tile in Mitchell, said counties got into it thinking they would make the situation better. But Gillen said they have essentially put themselves in a "damned if they do, damned if they don't" situation.

"I can actually sue these counties for denying a permit for loss of revenue. I've never done that, but I mean, at the same time you're denying a permit that should be passed," Gillen said.

Gillen said that while disputes occasionally happen, nine times out of 10, projects run smoothly. And when a dispute does occur, it rarely has anything to do with water.

"It's just neighbors that really don't like each other and now they have some legal grounds to go after each other on, and so they take advantage of that," Gillen said.

Ecological concerns

Nitrogen is one of the necessary nutrients for plant growth — it's often applied to fields in the form of fertilizer.

Jay Gilbertson said that, in some forms, nitrogen is highly water soluble.

“So, if there is a precipitation event, water moving down through the soil will pick up that nitrate and carry it away,” Gilbertson said.

Nitrogen can be carried away by drain tile, and that's a concern to some.

Brad Johnson, former chairman of the state's Water and Natural Resources Board, said nitrates have rural, East River water utilities concerned.

“Because you'll see in Iowa, nitrates have gone way up because of drainage, and then kill insects, and that passes up the food chain,” Johnson said. “And so drinking-water systems would have to spend enormous amounts of money, which is what's going on in Des Moines right now."

Des Moines Water Works in Iowa supplies water to the city of Des Moines and the surrounding areas — about a sixth of the state's population.

The Des Moines Register reported the city had to build nitrate removal facilities largely in response to tiling projects that put so much nitrogen in the water.

The Register also reported, some newborns began developing Infant Methemoglobinemia, or “blue baby syndrome,” where nitrogen levels starve the body of oxygen.

USD Biology Professor/Ecologist Jeff Wesner explains how contaminates can become concentrated via tiling.

But Bryce Gillen said that while environmentalists are pointing at drain tile as the cause of high nitrogen levels in the water, they are cherry-picking data and ignoring homeowners who dump chemicals on their own yards.

"Truth be told is cities, where most people fertilize the hell out of their lawns and golf courses and stuff like that, they're shoving a boatload of nitrates into the ground. That's where a lot of pollutants come from," he said.

Gillen explained that the nitrate problem has less to do with drain tile, and more to do with the rare farmer who does not manage their fertilizer use properly.

"Some of the good ol' boys, they just spread everything across the top. Well, they only want to pay the co-op one application, so they put the whole slug out, all at once," he said. "You get a really big rain and that all kind of comes downstream. If you're trying to swing for the higher yields, you don't want to do that anyway."

Benefits of tiling

Some farmers say the benefits of drain tile include more consistent yields, more timely planting, and less wear and tear on equipment.

Larry Hansum farms a couple of thousand acres just east of Platte with his brother and nephew. Those benefits recently motivated the trio to complete a county permit and lay some drain tile.

"I've owned this property probably 20 years. This 15, 20 acres has just been non-productive for about the time I've owned it. It's a low-lying area. It's not a wetland, but when it rains plentiful, then we've got enough moisture that it drowns out the crop in there."

And now Hansum says, because they added drain tile, he expects that problematic land to yield crops even in a wet year.

Bryce Gillen said the rumors of farmers drain tiling sloughs and lakes is a common misconception. He said every project he's worked on looks more or less like Hansum's.

"If there are more bushels produced in these small communities, there's more money that gets brought into those communities," Gillen said.

Brian Top says drain tile can be a good practice in certain situations. Top served 31 years with the federal Natural Resources Conservation Service and has spent the past 10 years as a wetland consultant. He also farms land just across the Minnesota border.

"I had a couple of little drainages. We tiled those little drainages and that just heals things up because it lets the water soak in rather than run off on the surface," said Top.

But Top has also experienced a downside from the lack of oversight over drain tile. In 1999, Top found out his neighbor had installed drain tile.

“All of a sudden, the neighbor has an 8-inch pipe right at the fence line, like 2 feet away from my fence line, pouring tile water onto me and it ruined a couple of acres of land because it would just spread out, and I really couldn't do anything about it," Top said. "It forced me to hook onto his tile system and carry it down to a suitable outlet."

Top said South Dakota legislators should do something.

"I know it's a controversial subject. But I think we need to work together on it. The Legislature, in my mind, needs to take leadership on this," Top said.

Politics in Pierre

There have been some attempts to address drain tile issues in the state — beyond the opt-in county permitting system introduced in the 1980s.

In 2012, the state Legislature appointed a task force to develop new laws to deal with the state’s water rights and usage issues.

Brad Johnson served on that task force but said he was not reinstated after criticizing the state's lax oversight of drain tile.

“Basically, they came up with nothing," he said. "Because it was heavily controlled by agricultural interests in the state and the agricultural interests dominate politics. They dominate the economy. They do not want any rules regarding drainage. They want to be able to do whatever they want."

Johnson said “good luck” to any legislator hoping to address the issue in Pierre.

“You would probably have Gov. Noem and the Department of Ag against it because Gov. Noem has done about everything she can to put all of the power in the agriculture side of things.”

Johnson points to the recent merger of the Department of Environment and Natural Resources with the Department of Agriculture as evidence.

Rep. Marty Overweg, R-New Holland, chairs the state House Agriculture Committee. He's more optimistic.

"I think it's just time we get some good heads together and try to figure out what is workable," Overweg said.

Overweg said he has been considering ways to help counties feel more confident issuing permits.

"I don't know all the ins and outs of how easy it is to hire a hydrologist. But it's something that we should look at," Overweg said.

But the Department of Agriculture and Natural Resources is not interested in a state-based approach.

The department declined an interview request and in a statement said, "DANR does not have regulatory authority over drainage and does not have the necessary resources available to support county drainage programs. Drainage issues have been debated by the Legislature many times and the consensus has always been that drainage issues are best managed at the local government level."

Joshua is the business and economics reporter with SDPB News.