Drainage law in South Dakota is complex, and the laws are different in every county. After codifying case law in 1985, the South Dakota Legislature delegated authority to county governments to regulate their own drainage projects, subject to common law rules and legal restrictions. Initially, South Dakota counties approached this power delegation in different ways, but now many are changing their policies on drainage issues. Concerned about effectiveness and inconsistencies of the statutes, the counties and the legislature are discussing changes to how South Dakota deals with flow management of drainage projects. Counties are also concerned about their liability under the drainage statutes. In 2012, the South Dakota Legislature appointed the Regional Watershed Advisory Task Force ("Task Force") and commissioned a drainage study. At the outset, it is essential for the Task Force and state legislators to understand how counties have dealt with drainage management in the past. This comment will explore the South Dakota drainage laws and suggest how the Task Force and the legislature should balance the interests of effective and uniform resolution, while protecting property rights and preserving local control.
"Water is an essential element of daily life for each and every one of us." (1) So, in a state where agriculture is the largest industry, reacting to the changes in the amount of water is essential to thrive. (2) South Dakotans often deal with flooding conditions one year and a drought crisis the next. (3) Communities witness the destruction of homes and businesses from flood waters and react by changing their county ordinances which deal with drainage and flood control. (4) Farmers lose crop yields from decreased productivity because of too much or too little water and react by installing tile drainage. (5) The South Dakota Legislature has taken notice of the various counties that have changed their water policies, and the legislature has called for a re-examination of how South Dakota should address and properly resolve its water issues. (6)
South Dakota's drainage laws have seen no significant changes since 1985 when the South Dakota Legislature enacted the current water management statutes. (7) Some agricultural groups believe the current system is convoluted and needs revision, (8) while others support keeping the existing laws in place. (9) In 2012, the legislature created the Task Force to study and advise, among other responsibilities, the state and local governments on better drainage management. (10)
The combination of at least three events sparked the state legislature's interest to create the Task Force. (11) First, the concern over regulating drainage is, in part, a reaction to the excessive snow and rainfall resulting in significant flooding in 2011, (12) followed by the severe to exceptional drought conditions experienced in the state during the summer of 2012 extending into the winter. (13) Second, driven by profits, farmers are increasing the number of drainage projects installed in order to generate greater profits. (14) The rise of crop prices, like corn, has made installing tile drainage economically beneficial, outweighing the costs of installation and maintenance. (15) Third, the South Dakota Senate required that the Task Force perform a study of drainage issues to provide improvements to management and regulation. (16) The Senate passed a concurrent resolution for the 2012 interim study and a thorough review of drainage laws because of (1) the saturation from snow and rain seen in the eastern side of the State, (2) the excessive wet areas on farmland that prevent optimal agricultural production, and (3) the number of counties which have repealed their drainage ordinances. (17) Commissioning this study implies the legislature's awareness of these issues, and asking for proposed statutory changes, if appropriate, indicates that the state may see modifications soon. …