South Lincoln Rural Water System Application for Permit No. 4300-3, Matter of, 12997

CourtSupreme Court of South Dakota
Citation295 N.W.2d 743
Docket NumberNo. 12997,12997
Decision Date20 August 1980

Dennis C. McFarland, Sioux Falls, for appellants Friends of Sandstone aquifer.

Jeff P. Masten of Sam W. Masten, P. C., Canton, for appellee South Lincoln Rural Water System; Eugene J. Irons of Myrabo & Irons, Canton, on brief.

John J. Smith, Asst. Atty. Gen., Pierre, for appellee Water Management Bd.; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

FOSHEIM, Justice.

The circuit court upheld the decision of the South Dakota Water Rights Commission which granted water permit No. 4300-3 to South Lincoln Rural Water System. We affirm on appeal.

The Friends of Dakota Sandstone Aquifer will hereinafter be referred to as (appellants); the South Dakota Rural Water System as (appellees); and the South Dakota Water Rights Commission, presently known as the South Dakota Water Management Board, as the (Board).

On August 30, 1977, appellees submitted application No. 4135-3 for four cubic feet per second (cfs) of water to be withdrawn from the Dakota Sandstone formation. Hearing on that application was held at Spearfish, South Dakota, on August 6, 1977. In response to protests from existing well owners in the Worthing area, the Board deferred action on the application pending further investigation by its staff. On July 10, 1978, the Board received an amended application No. 4300-3 (presently at issue) seeking the appropriation of two cfs of water to be withdrawn from three wells in the Dakota formation approximately five miles south of Worthing. In addition to amended application No. 4300-3, appellees also submitted application No. 4301-3 for the appropriation of two cfs to be drawn from the Vermillion Aquifer as an alternate source. On July 27, 1978, the Board held hearings on both applications, following which application No. 4301-3 was approved but action on amended application No. 4300-3 was deferred until "better testing is done on the Dakota formation and adequate Aquifer information is obtained." Application No. 4300-3 again came before the Board on September 13 and 14, 1978; however, further hearing thereon was continued until December to allow appellants an opportunity to offer opposing testimony.

On December 12, 1978, the Board held a special hearing on application No. 4300-3 in Sioux Falls, which resulted in the final decision to grant the permit subject to certain conditions. 1

The scope of review on an appeal from an administrative agency is set forth in SDCL 1-26-36:

The court shall give great weight to the findings, made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in light of the entire evidence in the record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

A court need not enter its own findings of fact and conclusions of law but may affirm, modify or reverse the findings and conclusions entered by the agency as part of its judgment. The circuit court may award costs in the amount and manner specified in chapter 15-17.

We review the record of the administrative agency in the same manner as the circuit court, unaided by any presumption that the lower court's decision is correct. South Dakota Public Utilities Commission v. Otter Tail Power Co., 291 N.W.2d 291 (S.D.1980). Piper v. Neighborhood Youth Corps, 90 S.D. 443, 241 N.W.2d 868 (S.D.1976).

The issues presented relate primarily to subsections (5) and (6) of SDCL 1-26-36. We first consider appellants' contention that the Board's findings and conclusions are clearly erroneous. The question for us on appeal under the "clearly erroneous" standard is not whether we would have made the same decision as did the administrative agency, but whether, after reviewing the entire evidence, we are " 'left with a definite and firm conviction that a mistake has been committed.' " Fraser v. Water Rights Commission, 294 N.W.2d 784, 788 (S.D.1980), opinion filed July 9, 1980, quoting In Re Estate of Hobelsberger, 85 S.D. 282, 289, 181 N.W.2d 455, 459 (1970).

Pursuant to SDCL 46-5-20 2 and before granting the permit, the Commission (now Board) determined that there was unappropriated water available for the benefit of this applicant. Appellants dispute the basis of the Board's finding because they contend that the aquifer in the area of the proposed well field is declining and that no recharge of the aquifer takes place. It appears from the evidence that re-charge of this aquifer, while probable, is unknown. SDCL 46-6-3.1 precludes the Board from allowing the quantity of water withdrawn annually from a ground water source to exceed the quantity of the "average estimated annual recharge of water to the ground water." However, the statute continues with this exception:

The board may, however, approve applications for withdrawals of ground water from any ground water formation older than or stratigraphically lower than the greenhorn formation in excess of the average estimated annual recharge for use by municipal systems, nonprofit water supply companies as defined in § 10-36A-1, water user districts as defined in chapter 46-16, sanitary districts as defined in chapter 34A-5 and other common distribution systems.

As the trial court noted, there does not seem to be any dispute that the Dakota Sandstone Aquifer is lower than the greenhorn formation or that the South Lincoln Rural Water System is a nonprofit water supply company organized pursuant to SDCL 10-36A-1. We therefore concur with the trial court's conclusion that the Board need not have made a determination regarding the rate of annual recharge because SDCL 46-6-3.1 vests the Commission with authority to grant the permit notwithstanding that withdrawal may exceed the average estimated annual recharge.

Appellants also challenge the showing of the proponents of the project that there are approximately 350,000 acre feet of water below the area of the proposed well field on the ground that this does not necessarily mean that such amount of water is available and unappropriated. They note the testimony of witness Assad Barrari of the South Dakota Geological Survey given on December 12, 1978, to the effect that there wasn't enough reliable data about the geology of the Dakota Sandstone aquifer to determine how much of this 350,000 acre feet is extractable. The message which emerges from the testimony of the experts is that the aquifer tests conducted could have produced more reliable data had more money and time been expended. There seems to be a consensus, however, that the aquifer contains sufficient water. The uncertainty seems to center on how much the proposed withdrawal would lower the pressure in the aquifer.

Considering all of the factors before the Board, we agree with the trial court that the record was sufficient to support the Board's conclusion that water was available for appropriation. Consequently, we cannot conclude that substantial rights of the appellants have been prejudiced because the Board's findings and conclusions are clearly erroneous in light of the entire evidence in the record. SDCL 1-26-36(5).

The next issue is whether the Board abused its discretion and rendered an...

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