ORDINANCE 1997-E AN ORDINANCE AMENDING GRANT COUNTY, SD ORDINANCE 1997-1 AN ORDINANCE REGULATING THE DRAINAGE OF PONDS, SLOUGHS, AND LAKES OR ANY SERIES THEREOF
ORDINANCE 1997-E
AN ORDINANCE AMENDING
GRANT COUNTY, SD ORDINANCE 1997-1 AN ORDINANCE
REGULATING THE DRAINAGE OF PONDS, SLOUGHS, AND LAKES OR ANY SERIES THEREOF
ARTICLE I
PREFACE
SECTION 101.
These rules are promulgated under the specific statutory authority of Chapter 46A‐1OA of the South Dakota Codified Laws.
46A‐10A‐20. Legal controls for drainage management‐‐Right to continue existing drainage. Official controls instituted by a board may include specific ordinances, resolutions, orders, regulations, or other such legal controls pertaining to other elements incorporated in a drainage plan, project, or area or establishing standards and procedures to be employed toward drainage management. Any such ordinances, resolutions, regulations, or controls shall embody the basic principle that any rural land which drains onto other rural land has a right to continue such drainage if:
1. The land receiving the drainage remains rural in character;
2. The land being drained is used in a reasonable manner;
3. The drainage creates no unreasonable hardship or injury to the owner of the land receiving the drainage;
4. The drainage is natural and occurs by means of a natural water course or established water course;
5. The owner of the land being drained does not substantially alter on a permanent basis the
course of flow, the amount of flow, or the time of flow from that which would occur; and
6. No other feasible alternative drainage system is available that will produce less harm without substantially greater cost to the owner of the land being drained.
Such provisions do not necessarily apply within municipalities, but if a municipality drains water onto rural lands lying outside the boundaries of the municipality, the municipality is subject to the above provisions, if adopted by the board.
Section 46A‐10A‐30 states. Any board or commission under the provisions of this chapter and chapter 46A‐11 may adopt a permit system for drainage. Such permit system shall be prospective in nature. Permits shall be granted consistent with the principles outlined in § 46A‐10A‐20. The fee for a permit shall be established by the permitting authority, based on the administrative costs of regulating drainage activities, may not exceed one hundred dollars, and shall be paid only once. However, permitted drainage which is enlarged, rerouted, or otherwise modified shall require a new permit. Any vested drainage right not recorded under the provisions of § 46A‐10A‐31 shall require a permit for its use if a permit system has been established in the county where it exists. Any person or his contractor draining water without a permit, if a permit is required under the provisions of this section, is guilty of a Class 1 misdemeanor. In addition to or in lieu of any criminal penalty, a court may assess against any person violating the provisions of this section a civil penalty not to exceed one thousand dollars per each day of violation. A permit system is an official control.
ARTICLE II
DEFINITIONS
SECTION 201.
For the purpose of this Ordinance, certain terms and words are hereby defined, unless the context otherwise requires. The word “shall” is mandatory and not discretionary.
1. “Board,” a board of county commissioners.
2. “Closed drain” or “blind drain,” a man—made drain or drainage scheme utilizing pipes, tiles or other materials and constructed in such a way that flow of water is not visible.
3. “Coordinated drainage area,” a defined geographic area containing one or more parcels of real property and established by a board to provide a planned network or method or natural or man—made drainage, or both, to benefit all parcels of real property involved.
4. “County Parcel Identification Number”‐ an identifying number assigned to parcel of land by the County Department of Equalization.
5. Drainage scheme,” a plan or system by which water is drained from one or more parcels of property onto one or more parcels of real property.
6. “Dominant estate,” any parcel of real property, usually at a higher elevation, which holds a common law or statutory legal right to drain water onto other real property.
7. “Engineer,” a professional, registered engineer.
8. “Established water course,” a fixed and determinate route, either natural or man—made, by which water has flowed from one parcel of real property to another and by which water has been discharged upon a servient estate for a period of time, on such a regular basis and in such quantities as to make it a predictably continuous activity.
9. “Governing body,” a board of county commissioners, a city council or a city commission.
10. “Landowner” or “owner,” any individual, firm or corporation, public or private, or public agency, who has legal title to real property as shown by the records of the register of deeds of the county in which the real property is situated. If the real property is sold under a contract for deed and the contract is of record in the office of the register of deeds for the respective county, both the recorded owner of the real property and the purchaser as named in the contract for deed are deemed owners of the real property.
11. “Legal drain,” a drain or drainage scheme that:
a. Is vested under the provisions of SDCL 46A‐1O and SDCL 46A‐11;
b. Has been constructed by a person or by a unit of government under the provisions of past or present law; or
c. Has been granted a drainage permit.
12. “Municipality,” a city or town, however organized.
13. “Natural drain,” a drainage system which operates as part of a natural water course, as defined in subdivision (14) of this section.
14. “Natural water course,” a fixed and determinate route by which water naturally flows from one parcel of real property to another due to the conformation of the land and by which water is discharged upon the land receiving the water. It is not necessary that the force or volume of the flow of water be sufficient to form a channel having a well‐defined bed or banks.
15. “Private drain,” a drainage system or scheme designed, constructed and maintained by a landowner primarily for his own benefit or a natural drain, whether or not actively maintained, that provides a benefit primarily to one landowner.
16. “Rural” or “rural area,” any territory outside a municipality.
17. “Servient estate,” any parcel of real property, usually at a lower elevation, which is subject to a legal right allowing a dominant estate to drain water onto it.
18. “Unit of local government,” a municipality, an irrigation district, a water project district, a water user district, a township, a sanitary district, a conservation district or other special district.
19. “Vested right,” a right of water drainage from one parcel of property to another which is settled or accrued to the property on the basis of the state law.
20. “Water management board,” the state board in SDCL1‐40‐15.
21. “Lake” means a land depression having a greater depth of water and having more permanent standing water than either a slough or pond. This definition classifies lakes as type five wetlands or “inland open freshwater” as defined in U.S. Fish & Wildlife Service Circular 39.
22. “Lateral drain” for the purpose of regulating the drainage of water means a drain constructed after the establishment and construction of the original drain or drainage system (for which a permit was obtained) and which flows into such original drain or drainage system.
23. “Meandered lake” means any pond, slough, or lake which has had its boundaries established by metes and bounds in the survey of public lands by government of the United States.
24. “Party of record” means any person who submits oral or written testimony and evidence for the record of the state engineer’s public hearing.
25. “Persons” means a person, firm, partnership, association, corporation, or any other type of private legal relationship, and any governmental organization, which includes, but is not limited to, any agency of the United States, a state agency, and any political subdivision of the state.
26. “Pond” means a land depression where the soil is covered with six inches (15 centimeters) to three feet (0.91 meters) or more of water throughout the growing season. This definition classifies ponds as type four wetland or “inland deep marshes” as defined in U.S. Fish & Wildlife Service Circular 39.
27. “Slough” includes three types (refer to U.S. Fish & Wildlife Service Circular 39):
a. Type one sloughs are “seasonally flooded basins or flats” which includes land depressions where the soil is covered with water, or is waterlogged, during variable\ seasonal periods but is usually well drained during much of the growing season.
b. Type two sloughs are “inland fresh meadows” which includes land depressions where the soil is usually without standing water during most of the growing season but is waterlogged within at least a few inches (centimeters) of its surface.
c. Type three sloughs are “inland shallow fresh marshes” which includes land depressions where the soil is usually waterlogged throughout the growing season and is often covered with as much as six inches (15 centimeters) or more of water.
28. “Watershed” means the area which drains into a slough, pond, or lake.
29. “Routine Maintenance,” Any maintenance performed on an established/existing above ground drainage ditch or vested and/or properly registered drainage system provided:
a. The repair or replacement of a closed or lateral drain does not increase the size, capacity or length of the existing drain and the original location of the drain is not altered.
30. The removal of sediment or vegetation from a natural or surface drain with man‐made improvements if the maintenance does not exceed the original depth and capacity of the channel and the original location of the drain is not altered.
ARTICLE III
DEFINITIONS
SECTION 301. PERMITS REQUIRED.
A drainage permit shall be required prior to commencing the excavation for, or the construction, installation, or modification of, a drainage project including, but not limited to, the following:
1. Construction or installation of a surface or closed drain.
2. Any draining, filling, diverting, in whole or in part, of a pond, wetland, or lake or filing of a drain.
3. Construction of any lateral drain.
4. Modification of any permitted or vested drainage with the intent of deepening or widening any drainage channel, increasing the size and/or depth of any drainage tile, or the extending or rerouting any drainage work.
5. Improvements to a drainage district or a coordinated drainage area which were not included in the originals plans.
6. Modification of any permitted or vested drainage which has the effect of causing an impediment to existing drainage.
SECTION 302. PERMITS FOR DRAINAGE PROJECT.
The permit for a “drainage project” constructed pursuant to South Dakota Codified Laws Chapter 46A10A and 46A‐11 may encompass the entire assessed or benefited area within a single parcel of land as identified by the County Parcel Identification Number. In order for a permit to encompass the entire assessed or benefited area within a single parcel of land, the drainage project must be designed to accommodate, as determined by the Board or its designated official, the drainage of the entire assessed area within a single parcel of land and must be so stated on the application. However, a drainage project approved in accordance with this section may still require the approval of the Board prior to construction of lateral drains, as defined herein, within the assessed area.
SECTION 303. PERMITS NOT REQUIRED.
A drainage permit shall not be required for the routine maintenance of an existing or established above ground surface drain or vested and/or properly registered drainage system.
SECTION 304. METHODS FOR DETERMINING AREA OF WATERSHED.
The following methods may be utilized in determining whether the area of a watershed for a slough, pond, or lake, or any series thereof, compromises twenty acres (8 hectares) or more.
1. The watershed area may be estimated from the most accurate or reliable maps or surveys available. Published seven and one‐half minute topographic maps or a survey conducted under the supervision of a registered land surveyor are preferred.
2. Aerial photographs of the watershed may also be used to define the drainage area.
3. An on‐site investigation of the drainage area by the Board or their designated official without the assistance of other data may be sufficient to determine drainage area.
SECTION 305. FILING APPLICATION.
Any person desiring a drainage permit shall file an application on the County Permit Form:
1. The applicant shall supply a detailed site plan showing the location of the proposed construction, a description of the size of the drain, and the location of the proposed outlet, and any other information which the Drainage Board may deem necessary for consideration in enforcing the provisions of this ordinance.
2. If requested by the Board, the applicant shall provide an engineering analysis showing the downstream impacts of the proposed drainage. The analysis, at the discretion of the Board, may include a determination of the capacity of the drain and the receiving watercourse and a comparison of volume and timing of pre‐drainage flows.
3. If the application is incomplete, or if the information contained therein is insufficient to enable the Board or its designated official to make an informed decision on the application, the application shall be returned to the applicant for correction.
4. Crossing a township road requires signatures of the majority of affected Township Supervisors.
5. Each parcel of land as identified by the County Parcel Identification Number, must have its own separate drainage permit.
6. The cost for filing all drainage permits shall be $100.00.
7. Inlets and Outlets shall not be located in county Right‐of‐Ways.
8. As per SDCL 46A‐10A‐20 permitted drainage which is enlarged, re‐routed or otherwise modified from the original drawings will require a new permit before construction can be completed.
SECTION 306. REFERRAL OF APPLICATIONS.
The Board or its designated official shall determine whether the application involves drainage of statewide or inter‐county significance. The Board shall attach to the application any comments, recommendations, and engineering data which may assist the appropriate county in making a determination on the application. The application shall then be referred to the appropriate county within which is found a majority of the watershed or drainage area of the pond, slough, or lake, or any series thereof. If the appropriate county does not have a permit system, the Board will consult with such county and reach a joint agreement under SD 46A‐l0A‐9 or 46A‐l0A‐l0, if appropriate.
SECTION 307.CRITERIA FOR DETERMINING WHETHER DRAINAGE IS OF STATEWIDE OR INTERCOUNTY SIGNIFICANCE.
In determining whether the proposed drainage is of statewide or inter‐county significance, the Board shall be guided by the following criteria:
1. Drainage which would affect property owned by the state or its political subdivisions.
2. Drainage of sloughs, ponds, or lakes having recognized fish and wildlife values.
3. Drainage or partial drainage of a meandered lake.
4. Drainage which would have a substantial effect on another county.
5. Drainage which would convert previously non‐contributing areas (based on twenty‐five year event ‐ four percent chance) into permanently contributing areas.
For good cause, the Board may classify any proposed drainage as having statewide or inter‐county significance, or the Board may determine that certain proposed drainage is not of statewide or inter‐county significance.
SECTION 308. HEARING ON APPLICATION FOR DRAINAGE PERMIT.
The Board shall set the date, time and place for a public hearing on the application. The purpose of the hearing is to establish a record on which to base a decision as to whether the application to drain shall be granted, and if so, under what conditions the water is to be drained. The Board may hear several permits at the same public hearing if the permits are connected under a common drainage scheme.
SECTION 309. EMERGENCY DRAINAGE.
The requirement for a hearing and notice thereon may be waived by the Board in order to process applications for temporary emergency drainage. However, a hearing shall be conducted at the earliest opportunity if the emergency drainage is to be permanent and has been determined to be of statewide or inter‐county significance.
SECTION 310. NOTICE OF PERMIT HEARING.
For all hearings required pursuant to this article, the Board shall, at the applicant’s expense, publish notice in a newspaper of general circulation in the area of the proposed drainage once a week for two consecutive weeks. The final published notice shall be published not more than fifteen days, nor less than five days, before the date set for the hearing. The Board shall also, at the applicant’s expense, give notice by certified mail not more than thirty days not less than ten days from the date set for hearing, to:
1. All downstream landowners riparian to the watercourse into which water will be drained, within two miles (3 kilometers) from the outlet of the drain as determined by the Board.
2. Any county which would be directly affected by the water to be drained.
3. The South Dakota Department of Water and Natural Resources.
4. The state highway department, county highway department, board of township supervisors, for any proposed drainage which will affect the right of way of any highway or roadway.
5. Any person who has notified the Board in writing of the person’s objection to the drainage project proposed, and who has requested in writing notification of such hearing on the drainage project proposed.
SECTION 311. CONTENT OF NOTICE OF HEARING.
The notice shall give all essential facts concerning the proposed drainage, including, but not limited to: name and address of applicant; legal description of the area to be drained; purpose of drainage; watercourse into which the water will be drained; legal description of confluence of drain and watercourse into which the water will be drained; estimated dates drainage construction will commence; the time, date, and location of the hearing; and other pertinent information.
SECTION 312. TIME FOR DETERMINATION BY BOARD.
Within thirty days after a hearing required pursuant to this article, or at the earliest opportunity in emergency situations, the Board shall make a determination on the application. For complex or unique applications this time limit may be extended by the Board.
SECTION 313. CONSIDERATION BY BOARD OF COMMISSIONERS.
In evaluating a drainage permit application the Board or their designated official shall consider the following criteria:
1. Whether the flow or quantity of water to be drained will be overburden the watercourse into which the water will be drained.
2. Whether the drainage will flood or adversely affect the lands of lower proprietors.
3. Whether easements are required.
4. Whether consideration was given to sound water resource management policy, including the following:
a. Whether it is shown that there will be a significant decrease in water quality resulting from the proposed drainage project
b. Whether, in evaluation the entire watershed, the resultant drainage will significantly increase flooding problems in the watershed
c. Whether the permanent storage of water on parcels in the application area is beneficial.
d. Whether the area’s erosion potential will be increased significantly due to the drainage of the water and the subsequent lack of wetlands to retard erosion.
e. Whether the agricultural productivity was considered.
f. Whether the drainage project will decrease local flooding problems.
g. Whether fish and wildlife values were considered.
5. Whether the land receiving the drainage is to remain rural in character. 6. Any other factors deemed important.
SECTION 314. APPROVAL OF DRAINAGE PERMIT APPLICATIONS BY BOARD OR ITS DESIGNATED OFFICIAL.
1. Approved Drainage Permit Applications not Involving Drainage of Statewide or Inter‐county Significance. The Board’s approval shall be noted thereon and it shall be a permit to drain. The permit shall be forwarded to the applicant and notice of the action of the Board recorded with the Board’s designated official.
2. Approved Drainage Permit Applications Involving Drainage of Statewide or Inter‐county Significance. The Board of each county affected by proposed drainage work having inter‐county significance shall make a determination whether the permit shall be granted, utilizing information from the record compiled at the public hearing. Approval by all counties involved is required for permit approval. The Board’s approval shall be noted thereon, and the application, along with the determination, copies of all applicable easements, copies of the publication of notice, and minutes of the public hearing shall be forwarded immediately to the S.D. Dept. of Water and Natural Resources. Notice of the action of the Board shall be forwarded to the applicant.
SECTION 315. DENIAL OF APPLICATION BY THE BOARD.
A denied application shall be returned to the applicant along with a copy of the Board’s determination.
SECTION 316. TIME FOR DETERMINATION BY THE BOARD AND STATE.
Within thirty days of the public hearing on a drainage application the Boards and SD Department of Water and Natural Resources shall render the determination on the application. For complex or unique applications this time limit may be extended. Following the determination, the Board of the county in which the application to drain was filed shall notify the parties of record, either personally or be accompanied by the findings of fact and conclusions on which the determination was based and the notice is deemed given as of the date of certification.
SECTION 317. CRITERIA TO DETERMINE WHETHER DRAINAGE WILL ADVERSELY AFFECT LANDS OF LOWER LANDOWNERS.
The Board or its designated official shall be guided by the following criteria:
1. Uncontrolled drainage into receiving watercourses which do not have sufficient capacity to handle the additional flow and quantity of water shall be considered to have an adverse effect.
2. Whether drainage is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or in the absence of a practical natural drain, a reasonable artificial drain system is adopted.
3. That amount of water proposed to be drained.
4. The design and other physical aspects of the drain.
5. The impact of sustained flows.
SECTION 318. CONDITIONS TO PERMITS.
The Board may require as a condition to the approval of any drainage permit application a postconstruction survey of the permitted drain. Any permit to which the Board has attached such condition will be perfected upon receipt of the survey. The Board may attach any other conditions to an approved permit deemed necessary by the Board according to the circumstances of each application.
SECTION 319. PENALTY FOR FAILURE TO SECURE PERMIT FOR DRAINAGE WORK.
Any person draining water without a permit as required under the provisions of this regulation is guilty of a Class 1 misdemeanor, a violation of SDCL 46A‐IOA‐30. In addition to or in lieu of any criminal penalty, a Court may assess against any person violating the provisions of this section a civil penalty not to exceed one thousand dollars per each day of violation. A permit system shall be considered an official control.
SECTION 320. PENALTY FOR CONTRACTOR FOR COMMENCEMENT OF DRAINING PROJECT PRIOR TO ISSUANCE OF PERMIT FOR DRAINAGE WORK.
Any contractor, individual, or corporation, who commences drainage work on behalf of any person prior to issuance of a permit for such drainage work, is guilty of a Class 1 misdemeanor, a violation of SDCL 46A‐10A‐30.
SECTION 321. COMPLIANCE WITH OTHER STATE AND FEDERAL LAWS.
In addition to the permit requirements imposed by the provisions of the Grant County Drainage Ordinance, all applicants must comply with and meet all other state and federal laws, regulations, ordinances, or other requirements restricting or regulating drainage and land use. Issuance of drainage permits by Grant County is not evidence of compliance with this section. Compliance with all other state and federal drainage and land use laws is the individual responsibility of the applicant landowner.
SECTION 322. DRAINAGE PERMIT.
A Drainage Permit shall expire two (2) years from the date up24+on which it became effective. If the work described 24in the drainage permit has not been substantially completed within two (2) years, all further work on the project shall cease unless, and until, a new drainage permit has been obtained.
SECTION 323. CERTIFY COMPLETION OF PROJECT.
Within sixty (60) days of completed construction; a final “as built” site plan showing the actual location of the construction, a description of the size of the drain, all changes to water flow, the location of the proposed outlet, and any other information which the Drainage Board may deem necessary for consideration in enforcing the provisions of this ordinance, be submitted to the Drainage Board or their designated official for final consideration of completion.
Adopted by the Grant County Board of Commissioners on this 6th day of December, 2022.
Doug Stengel,
Chairman
Grant County
Board of County Commissioners
ATTEST:
Karen M. Layher
Grant County Auditor
1st Reading: 10‐18‐2022
Public Hearing: 12‐6‐2022
2nd Reading: 12‐6‐2022
Adopted: 12‐6‐2022
Published: 12‐14‐2022
Effective: 01‐03‐2023 Published once at an approximate cost of $293.04 and can be viewed free of charge at www.sdpublicnotices.
com.
