Fraser v. Water Rights Commission of Dept. of Natural Resource Development, 13026

Decision Date09 July 1980
Docket NumberNo. 13026,13026
Citation294 N.W.2d 784
PartiesDale FRASER, Lawrence Larson, Wilber Mathis, Lawrence Meoska, Clyde Olson, Marx Stange, and William Rake, Appellees, v. WATER RIGHTS COMMISSION OF the DEPARTMENT OF NATURAL RESOURCE DEVELOPMENT, an Agency of the State of South Dakota, and Dennis C. Decker, Marian B. Gunderson, Wendell H. Hanson, Raymond D. Rylance, and Merwyn H. Walter, as members of such Commission, Appellants, and Carl Estabrook, Intervenor.
CourtSouth Dakota Supreme Court

Tom D. Tobin, Tobin Law Office, Winner, for appellees; Joseph E. Ellingson of Tobin Law Office, Winner, on brief.

Roxanne Giedd, Asst. Atty. Gen., Pierre, for appellants; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

DUNN, Justice.

This action involves the circuit court's reversal of the Water Rights Commission granting water right permit No. 4405-3 to Carl Estabrook. We affirm.

For the purpose of clarity, the Water Rights Commission shall be designated "Commission"; the staff of the Commission (the Division of Water Rights of the Department of Natural Resources) shall be designated "Division"; and the State Conservation Commission shall be designated "Conservation Commission."

Carl Estabrook submitted an application to the Commission to appropriate water from the Niobrara Chalk formation in December, 1976. Water sample No. 76-073 was submitted to the Conservation Commission for soil/water compatibility approval and determined to be "unsuitable." Although the present standards for soil/water compatibility were not in effect, Estabrook was informed by Dr. L. O. Fine of the Water Quality Lab that "sample # 76-073 is totally unfit for irrigation" and that "within 10 years using this water you would rapidly degrade this soil to the point of little value as crop land." However, an irrigation permit was approved by the Conservation Commission.

The Commission subsequently granted Estabrook a one-year experimental permit, No. 3435-3, at its January 26, 27, 1977, meeting. The experimental permit was for irrigating 220 acres of land located in the Southeast Quarter, East Half of the Southwest Quarter and South Half of the Northeast Quarter of Section 6, Township 104 North, Range 63 West, Aurora County, South Dakota. The location of the well from which the water was to be diverted for irrigating these lands was listed as 2,000 feet west and 1,000 feet north of the southeast corner of the Southeast Quarter of Section 6, Township 104 North, Range 63 West.

The purpose of the experimental permit was to allow pumping for one year so that the results could be monitored. The experimental permit contained the following qualifications:

1. In no case is a diversion rate to exceed the application diversion rate of 2.22 cfs of water.

2. It is your responsibility to restrict, if necessary a diversion of water from the well so there is not a reduction of needed water supplies in existing domestic wells, dugouts, springs or other sources of water that would be affected by your diversion of water.

3. Diversion of water during the experimental period shall be in accordance with any written orders issued by a representative of the Water Rights Commission.

After the permit was granted, the Division received a report that Estabrook was planning to irrigate lands other than those listed on the experimental permit. Mr. Estabrook was advised that in order to irrigate lands other than those covered by the experimental permit, he would have to reapply and readvertise for that particular land and diversion.

Mr. Estabrook was later told that he would be allowed to irrigate lands in the Northeast Quarter of Section 6, Township 104 North, Range 63 West that were not included in the experimental permit, since the land had been requested under a deferred application, No. 2863-3. This was allowed in spite of the fact that the Commission had received petitions signed by 122 area residents opposing the application. Estabrook was allowed to irrigate this land from a Niobrara Chalk formation well although no water sample was submitted to the Conservation Commission for soil/water compatibility approval, as required by SDCL 46-5-6.2.

Mr. Estabrook began pumping the evening of June 17, 1977. On June 22, five days later, the staff of the Commission began to receive reports that area residents were having problems with their domestic wells. A total of fifteen domestic wells were reported to be out of water and there were reports of others pumping air and/or muddy water. On June 23, 1977, it was discovered that Estabrook had installed a 1,600 gpm pump rather than a 1,000 gpm pump which was authorized by the experimental permit.

Due to the effect on the domestic wells in the area, Estabrook was ordered to cease pumping until "nearby domestic wells which have been determined to be out of water as the result of your irrigation pumping have been repaired or changed so as to provide sufficient domestic water when your irrigation well is pumping." In addition, because too large a pump was installed, any further pumping was reduced from twenty-four hours per day to fifteen hours per day.

Corrections were made by Estabrook to nine of the domestic wells by adding lengths of pipe, lowering cylinders and jets, and in two instances, drilling new wells. However, not all affected wells were corrected by Estabrook, and not all of the corrections made eliminated the problems caused by the pumping. Estabrook was allowed to pump after corrections were made to certain domestic wells until July 27, 1977, when the Commission ordered that pumping of the Estabrook well under experimental permit No. 3435-3 be discontinued. Pumping from the Estabrook irrigation well was not resumed for the remainder of 1977, and the Commission, at the January 1978 meeting, withdrew the chalk formation in which Estabrook's well was located from further appropriation.

On February 8, 1978, Estabrook submitted an application to the Commission for appropriations from the Niobrara Chalk formation. Water sample No. 78-065 was submitted to the Conservation Commission for soil/water compatibility approval. An irrigation permit, Form W1# 1, was conditionally approved by the Conservation Commission for:

North Eighty of the Northeast Quarter of Section Six, Township One Hundred Four, Range Sixty-Three; and,

Forty-Five of the West Quarter of Section Five, Township One Hundred Four, Range Sixty-Three.

The well used to irrigate this land was located in the Southeast Quarter of the Northeast Quarter of Section 6, Township 104, Range 63. The application for an irrigation permit was conditionally approved because the water and soil was marginal in nature and because a possibility existed for land damage. Because of this, the conditional approval of the irrigation permit was based on the following:

1. That salt buildup cannot be greater than 3000 micromhos per centimeter cubed in the upper twelve inches of soil at the beginning of the growing season;

2. That sodium buildup cannot be greater than eight percent sodium saturation in the upper twelve inches of soil at the beginning of the growing season(.)

The application for a water right was not advertised since the chalk formation in which the well was located had been withdrawn from further appropriation.

At the March 28-29, 1979, meeting of the Commission it was decided to rescind the action taken at the January, 1978, meeting withdrawing the chalk formation from further appropriation. Estabrook had noticed application No. 3435-3 for the meeting, but the Commission decided not to act on it because it was not for land where the center pivot was actually located. The Commission was informed that a new application had been submitted approximately one year earlier to correct the land descriptions, and that the intention of the application was to clarify the matter. Since neither application No. 3435-3 nor the application submitted on February 8, 1978, contained descriptions of all the land where the center pivot was located, Estabrook was instructed to group the two applications together for approval and prepare a new application covering all the land for the proposed irrigation system.

On May 3, 1979, the Conservation Commission held an informal meeting to investigate allegations involving Estabrook's water sample No. 78-065. This meeting was the result of petitions from Aurora County residents requesting the Conservation Commission to take an additional sample from Estabrook's well for the purpose of validating the sample submitted. The basis of the petitions was that all of the water samples taken from other wells in the area, which drew water from the same aquifer, were determined to be "unsuitable" or "absolutely unsuitable" for irrigation by the Water Quality Laboratory in Brookings, South Dakota. In addition, a later sample taken by the United States Geological Survey from Estabrook's irrigation well indicated that the water quality was far below the allowable standards for conditional approval of an irrigation permit. As a result of this meeting, the Conservation Commission and Estabrook agreed to add the following conditions to Estabrook's irrigation permit:

1. That the soils be monitored yearly by the Division of Conservation, Department of Agriculture, at the sites and depths shown on the attached sheet. The date of the soils sampling will be determined by the Division;

2. That the crops grown be checked for boron toxicity by tissue tests and by visual observation by the Division of Conservation, Department of Agriculture, during the growing season. The date of this crop sampling and observation will be determined by the...

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