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BRULE COUNTY, SOUTH DAKOTA

DRAINAGE PERMIT ORDINANCE

SECTION 101. DEFINITIONS: 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," the Board of Brule County commissioners.

2) "Drain" may include the following:

a. "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.

b. "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.

c. "Natural drain" a drainage system which

operates as part of a natural water course, as

defined in subdivision (13) of this section.

3) "Estate" may include the following:

a. "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.

b. "Servient estate," any parcel of real

property, usually at a lower elevation, which is

subject to a legal right allowing a dominant

estate or drain water onto it.

4) "Engineer," a professional, registered engineer.

5) "Water Course" may include the following:

a. "Established water course," a fixed and

determinant 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

diSChi'frgedupona se-rvient estate for a period of

"

time, on such a regular basis and in such

quantities as to make it a predictably continuous

activity.

b. "Natural water course," a fixed and

determinant 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 of the flow of

water be sufficient to form a channel having a

well-defined bed or banks.

6) "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.

7) "Municipality," a city or town, however organized.

8) "Rural", or "rural area," any territory outside a

municipality.

9) "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".

10) "Meandered lake" means any pond, slough, or lake

which has had its boundaries established by metes

and bounds in the documents or record or in the

survey of public lands by the government of the

United states.

11) "Person" 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.

12) "Pond" means a land depression where the soil is

covered with six inches to three feet or more of

water throughout the growing season. This

definition classifies ponds as type four wetland

or "inland deep marshes".

13) "Slough" includes three types:

a. Type one sloughs are "seasonally flooded basin

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.

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.

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 or more of water.

14) "Watershed" means the area which drains into a

slough, pond, lake, or waterway.

SECTION 102. PERMIT REQUIRED. It shall be unlawful to

commence the excavation for or the construction or

installation of drainage works until a Permit to Drain has

been issued by the County for such work. The following work

shall require a Permit:

construct a drain for the purpose of draining

waters from a slough, pond, or lake, or any series

thereof, having a watershed of forty acres or

more.

2. A permit is required before any person may

drain by pumping a slough, pond, or lake or

connected series of sloughs, ponds, or lakes

having a watershed of forty acres or more.

3. A permit is required before any person may

drain or cause to be drained, or who shall attempt

to drain any meandered lake.

4. A permit is required for a drainage project

constructed pursuant to South Dakota County

Drainage Law Chapters 46A-10A and 46A-11.

5. A permit is required for the construction of

any lateral drain, as defined herein, unless it is

within the assessed area of a drainage project

which has been permitted for the entire assessed

area, in accordance with section 103 of this

Article.

6. A permit is required before any person may

modify the drainage authorized in the original

permit. Modification of drainage shall include

deepening and widening of a drain, or the

extension of any drain.

7. A permit is required before any person may

fill the pond, slough, or lake, for the purpose of

causing the pond, slough, or lake having a

watershed of forty acres or more to be drained by

elimination of the existing storage.

8. A permit is required before any person may

repair, replace, or improve any drain that serves

a drainage area of forty acres or more. Routine

maintenance is allowed under section 104 below.

9. A permit is required before any person may

install a blind or closed drain serving any

drainage area forty acres or more.

10. A permit is required for those Drainage Plans

which are presented as a prerequisite necessary

for any plat approval under local Subdivision

Regulations.

SECTION 103. PERMITS FOR DRAINAGE PROJECT. The permit

for a "drainage project" constructed pursuant to soujh

Dakota Codified Laws Chapter 46A-10A and 46A-11 may

encompass the entire assessed or benefited area. In order

for a permit to encompass the entire assessed or benefited

area, the drainage project must be designed to accommodate,

as determined by the Board or its designated official, the

drainage of the entire assessed area, 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 104. EXCEPTIONS TO PERMITS REQUIRED. The

provisions of section 102 shall not apply to any drain

constructed under the direct and comprehensive supervision

of the federal, state, or local agencies specified in this

section. The only agencies deemed capable of such

comprehensive supervision are the army corps of engineers,

the soil conservation service, Brule County, and the various

organized townships of Brule county. However, these

agencies shall notify the Board of any proposed drainage

projects under their direct supervision during the planning

stages.

No permit is required for routine maintenance work

intended to preserve the operational capacity of a drainage

work which is vested. (NOTE: South Dakota Law 46A-l0A-31

provides that any natural drainage right acquired before 7-

1-85 deemed vested; drainage with man-made origins acquired

before 7-1-85 is deemed vested if is recorded at the

Register of deeds Office before 7-1-91.)

This Ordinance shall not apply within the boundary of

any lawfully established municipality, unless the Ordinance

has first been jointly adopted by that municipality provided

however that any municipality which drains or authorizes the

drainage of water onto rural lands lying outside its

boundaries shall, to that extent, be subject to the

provisions of this ordinance.

SECTION 105. 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, comprises forty acres

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 the 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 the drainage area.

SECTION 106. APPLICATION FOR A DRAINAGE PERMIT. Any

-person required to obtain a drainage permit under this

ordinance shall file an application with the designated

county Drainage Official on a County Drainage Permit

Application Form. The applicant, if requested by the

County, shall provided a detailed drawing or analysis, as

appropriate, showing both the elevation and profile of the

proposed construction as well as the impact to other

property owners of the proposed drainage. the analysis

shall include a determination of the capacity of the drain

and the receiving watercourse and a comparison of volume and

timing of predrainage and postdrainage flows. If the

application is incomplete or if the information contained

therein is insufficient to enable the County to make an

informed decision on the application, the application shall

be returned to the applicant for completion and/or

correction. The cost for filing all drainage applications

shall be a non-refundable $25.00. If the drainage

application is approved and a drainage permit is ultimately

issued, then this application filing fee shall be construed

to cover any County fee for the issuance of the permit.

The designated County Drainage Official shall receive

all Permit Application Forms. The Drainage Official shall

review each Application Form for the purpose of insuring

completeness and malcing on of the following recommendations:

a) Recommend approval;

b) Recommend denial; or

c) Recommend that notice be given and a Public

Hearing be held.

The Board shall serve as the Brule County Drainage

Commission. All applications when complete shall be

forwarded, along with the recommendation of the designated

County drainage Official, for action by the Board. The

County Drainage Official shall notify the applicant of the

Board's next regular meeting at which time the application

and recommendation shall be considered and acted upon by the

Board during the normal course of conducting the official

business of the county.

SECTION 107. REFERRAL OF APPLICATIONS. The Board

acting through its designated official shall determine

whether the application involves drainage of statewide or

intercounty significance. The Board shall attach to the

application any comments, recommendations, and engineering

data which may assist the appropriate county in maleing a

determination on the application. The application may then

be referred to the appropriate county within which is found

a -ma-jority of the watersfied or drainage area of the pond,

slough, or lake, or any series thereof, as may be determined

by an agreement between the counties involved. If the

appropriate county does not have a permit system, the Board

will consult with such county and reach a joint agreement

under SDCL 46A-10A-9 or 46A-10A-10, if appropriate.

SECTION 108. CRITERIA FOR DETERMINING WHETHER DRAINAGE

IS OF STATEWIDE OR INTERCOUNTY SIGNIFICANCE. In determining

whether the proposed drainage is of statewide or intercounty

significance, the Board shall be guided by the following

criteria:

1. Drainage which would affect property owned by

the State or is 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

noncontributing areas (based on twenty-five year

event - four percent chance) into permanently

contributing areas.

6. Assessment drains shall be considered of

statewide or intercounty significance.

For good cause, the Board may classify any proposed

drainage as having statewide or intercounty significance, or

the Board may determine that certain proposed drainage is

not of statewide or intercounty significance.

SECTION 109. HEARING ON APPLICATIONS OF STATEWIDE OR

INTERCOUNTY SIGNIFICANCE. Upon determination of an

application of statewide or intercounty significance, 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. A

hearing shall not be required for a drainage project which

is not of statewide or intercounty significance. However,

the Board may hold hearings on such applications at its

discretion.

SECTION 110. 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

intercounty significance.

SECTION 111. NOTICE OF PERMIT HEARING. For all

hearings required pursuant to this article, the county

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. At the County's direction, the applicant shall

prominently post the property in a manner most visible to

the nearest public right-of-way giving notice of the permit

hearing; said posting shall be in place during at lease the

fourteen days immediately preceding the permit hearing. The

County shall also, at the applicant's expense, give notice

by postage prepaid, first class 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 an area of at least two miles from the

outlet of the drain or more as may be determined

by the Board through its designated official to be

necessary to reach a water course.

2. Any county which would be directly affected by

the water to be drained.

3. The South Dakota Department of Water and

Natural Resources, if affected.

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 112. CONTENT OF NOTICE OF HEARING. The notice

. sh·al1 give all essential facts concerning th·e 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 113. 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. However, if an

extension is taken by the Board, the Board shall notify the

applicant of the reasons for the extension and shall set a

definite time period within which the Board's determination

shall be made.

SECTION 114. CONSIDERATION BY BOARD OF COMMISSIONERS.

In evaluating a drainage permit application, the Bard shall

consider, but not be limited to, the project's impact on the

following items:

a. flood hazards; floodplain values

b. erosion potential

c. water quality and supply

d. agricultural concerns

e. general environmental concerns

f. aesthetics

g. fish and wildlife values

h. considerations of servient landowners

Adverse affect on servient landowners 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. The amount of water proposed to be drained.

4. The design and other physical aspects of the drain.

5. The impact of sustained flows.

SECTION 115. APPROVAL OF DRAINAGE PERMIT APPLICATIONS

1. Approved Drainage Permit Applications not Involving

Drainage of statewide or Intercounty 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 Intercounty Significance. The

Board of each county affected by proposed drainage work

having intercounty 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

action of the Board shall be forwarded to the

applicant.

SECTION 116.

denied application

with a copy of the

DENIAL OF APPLICATION BY THE BOARD. A

shall be returned to the applicant along

final determination.

SECTION 117. TIME FOR DETERMINATION BY THE BOARD AND

STATE. Within thirty days of the public hearing on a

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 by mail (with affidavit), or the determination. This

notice must be accompanied by the findings of fact and

conclusions on which the determination as based and the

notice is deemed given as of the date of certification.

SECTION 118. CONDITIONS TO PERMITS. The Board may

require as a condition to the approval of any drainage

permit application a post-construction survey of the

permitted drain. Any permit to which the Board has attached

such condition will be perfected upon receipt of the survey.

permit deemed necessary by the Board according to the

circumstances of each application. No person shall be

authorized to use a drain which has been improperly

constructed in accordance with permit requirements or

conditions.

If any drainage permit is granted with conditions

attached, the permit shall be reviewable by the Board after

one year. The Board shall consider the applicant's past

performance in meeting the conditions imposed and the

effectiveness of the conditions in protecting the public

interest. Notification of any review shall be given in the

same manner as provided by section 111. After a Review

Hearing, the Board may approve continuation of the permitted

drainage work, approve the continuation with modifications,

or revoke the permit. Any party unsatisfied by a decision

made at the conclusion of a Review Hearing may seek further

relief in Circuit Court.

SECTION 119. PENALTY FOR FAILURE TO SECURE PERMIT FOR

DRAINAGE WORK. Any person or his contractor draining water

without a permit as required under the provisions of this

regulation, may be subject to a maximum penalty of $1,000.00

per day, and any other penalty presented by SDCL 46A-10A-30.

SOVEREIGN IMMUNITY. The issuance, denial, or waiver, of a

drainage permit shall in no way affect the legal rights

which may otherwise exist between a landowner and any other

property (dominant or servient estate). The County, in

considering permit applications, shall be protected by the

Doctrine of Sovereign Immunity and shall not be subject to

any cause of action or claim brought by any person alleging

an impact caused by the water which is the subject of the

permit application.

SECTION 121. DRAINAGE COMPLAINTS. Pursuant to SDCL

46A-10A-34, the Brule county Drainage Commission shall serve

as a Board of Resolution to address any drainage disputes

which may be presented. Any landowner of the County may

present a drainage dispute by completing a form, setting

forth the facts relevant to the dispute, and filing that

form with the appropriated County drainage official. upon

receipt, that County official shall make an investigation of

the facts, offer a recommendation for resolution to the

parties involved and if requested by any affected party set

a hearing date within 60 days before the Board of

Resolution. Said hearing shall be de novo and the Board

shall issue a written opinion within 30 days, unless agreed

otherwise by the parties involved. Parties unsatisfied by a

decision of the Board of Resolution may seek further relief

in circuit court.