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

• Court: Supreme Court of South Dakota
• Writing for the Court: FOSHEIM
• Citation: 295 N.W.2d 743
• Decision Date: 20 August 1980
• Docket Number: No. 12997
• Parties: In the Matter of the SOUTH LINCOLN RURAL WATER SYSTEM APPLICATION FOR PERMIT NO. 4300-3.

Page 743

295 N.W.2d 743 In the Matter of the SOUTH LINCOLN RURAL WATER SYSTEM
APPLICATION FOR PERMIT NO. 4300-3. No. 12997. Supreme Court of South Dakota. Argued May 21, 1980.
Decided Aug. 20, 1980.

Page 744

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On August 30, 1977, appellees submitted application No. 4135-3 for four cubic feet per second (cfs) of water to be withdrawn from the Dakota Sandstone formation.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received an amended application No. 4300-3 (presently at issue) seeking the appropriation of two cfs of water to be withdrawn from three wells in the Dakota formation approximately five miles south of Worthing.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

Page 745

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

Page 746

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...