Lawyers wrangle over Lewis and Clark water law
Posted: Wednesday, October 05, 2005
ABERDEEN, S.D. (AP) -- A lawyer for the Lewis & Clark Rural Water System told the South Dakota Supreme Court on Tuesday that a state law forbidding waterways from being built within 250 feet of homes does not apply to the massive, three-state water project.
The law, dating to the first legislative session in 1890, carries no such restriction against pipelines used to move water, said Mark Marshall. He said a handful of Lincoln County residents should not be allowed to block 70-foot-wide easements across their land along the pipeline route.
Unwilling landowners can be forced to allow the project to cross their property, but they must be paid for the condemnation easements under a process called eminent domain.
However, Circuit Judge Bradley Zell ruled in July that the pipeline is covered by a state law preventing it from being located within 250 feet of homes, other buildings, orchards and gardens.
Marshall said that law applies only to waterways, such as canals and flooded ditches. The law was initially passed at a time in the state's history when open waterways were used primarily to irrigate crops and lawmakers worried about the potential of waterways to overflow and damage others' property, he said.
The Lewis & Clark pipeline will tap into several wells along the Missouri River near Vermillion and provide 27 million gallons of fresh water daily to residents and businesses in southeastern South Dakota, northwestern Iowa and southwestern Minnesota, he said.
The project is a nonprofit endeavor funded by taxpayers and is not intended for commercial gains, Marshall said.
"It's trying to provide drinking water -- not opportunities for others to make money at the expense of these landowners," he said.
But Mark Meierhenry, a lawyer representing a few farm families with deep roots in Lincoln County, said the 250-foot setback requirement must be followed by the water system. The law is designed to protect property owners, he said.
"This statute gives immense powers to build an industrial pipeline using eminent domain, but our Legislature ... has said you can't do that within 250 feet," Meierhenry insisted.
His Lincoln County clients don't object to the pipeline, but they do not want it on or near their land, he said.
"We're not stopping any pipeline," Meierhenry said.
He said the 1983 Legislature updated state water law to include pipelines in the 250-foot restriction that initially mentioned only waterways.
Meierhenry also argued that the setback requirement is measured from the closest edge of the easement.
If the Lewis & Clark system must comply with the setback, the distance to homes and other buildings should be measured from the center of the easement path, Marshall said.
Marshall further said the 250-foot restriction would hamper construction of the pipeline, estimated to cost $423 million.
"We're talking about the ability of a landowner to invoke a rule that would ... cause diversion of the pipeline," the Lewis & Clark attorney said.
It would cost $1.9 million per mile to make changes in the pipeline route, Marshall said, urging the high court to rule that the Lewis & Clark project is not subject to the 250-foot law.
Supreme Court Justice Steven Zinter seemed unconvinced.
"What does that statute apply to if it doesn't apply to waterways?" he asked.
"It doesn't apply to pipelines," Marshall replied.
"A pipeline like Lewis & Clark is building is not a waterway," he said.
Marshall also noted that the setback restriction does not apply to more dangerous pipelines carrying natural gas, oil or other fuels.
The pipeline, when finished, will be 337 miles long. As planned, about 189 miles of the pipeline will be in South Dakota.
A decision in the case could come quickly. The state Supreme Court agreed to expedite the usual process because of the need to keep the huge water project on schedule.
Several towns, including Sioux Falls, Tea and Harrisburg are clamoring for the water.
Circuit Judge Jack Von Wald sat in on the high court in place of Justice Judith Meierhenry, who is married to Mark Meierhenry.
The law, dating to the first legislative session in 1890, carries no such restriction against pipelines used to move water, said Mark Marshall. He said a handful of Lincoln County residents should not be allowed to block 70-foot-wide easements across their land along the pipeline route.
Unwilling landowners can be forced to allow the project to cross their property, but they must be paid for the condemnation easements under a process called eminent domain.
However, Circuit Judge Bradley Zell ruled in July that the pipeline is covered by a state law preventing it from being located within 250 feet of homes, other buildings, orchards and gardens.
Marshall said that law applies only to waterways, such as canals and flooded ditches. The law was initially passed at a time in the state's history when open waterways were used primarily to irrigate crops and lawmakers worried about the potential of waterways to overflow and damage others' property, he said.
The Lewis & Clark pipeline will tap into several wells along the Missouri River near Vermillion and provide 27 million gallons of fresh water daily to residents and businesses in southeastern South Dakota, northwestern Iowa and southwestern Minnesota, he said.
The project is a nonprofit endeavor funded by taxpayers and is not intended for commercial gains, Marshall said.
"It's trying to provide drinking water -- not opportunities for others to make money at the expense of these landowners," he said.
But Mark Meierhenry, a lawyer representing a few farm families with deep roots in Lincoln County, said the 250-foot setback requirement must be followed by the water system. The law is designed to protect property owners, he said.
"This statute gives immense powers to build an industrial pipeline using eminent domain, but our Legislature ... has said you can't do that within 250 feet," Meierhenry insisted.
His Lincoln County clients don't object to the pipeline, but they do not want it on or near their land, he said.
"We're not stopping any pipeline," Meierhenry said.
He said the 1983 Legislature updated state water law to include pipelines in the 250-foot restriction that initially mentioned only waterways.
Meierhenry also argued that the setback requirement is measured from the closest edge of the easement.
If the Lewis & Clark system must comply with the setback, the distance to homes and other buildings should be measured from the center of the easement path, Marshall said.
Marshall further said the 250-foot restriction would hamper construction of the pipeline, estimated to cost $423 million.
"We're talking about the ability of a landowner to invoke a rule that would ... cause diversion of the pipeline," the Lewis & Clark attorney said.
It would cost $1.9 million per mile to make changes in the pipeline route, Marshall said, urging the high court to rule that the Lewis & Clark project is not subject to the 250-foot law.
Supreme Court Justice Steven Zinter seemed unconvinced.
"What does that statute apply to if it doesn't apply to waterways?" he asked.
"It doesn't apply to pipelines," Marshall replied.
"A pipeline like Lewis & Clark is building is not a waterway," he said.
Marshall also noted that the setback restriction does not apply to more dangerous pipelines carrying natural gas, oil or other fuels.
The pipeline, when finished, will be 337 miles long. As planned, about 189 miles of the pipeline will be in South Dakota.
A decision in the case could come quickly. The state Supreme Court agreed to expedite the usual process because of the need to keep the huge water project on schedule.
Several towns, including Sioux Falls, Tea and Harrisburg are clamoring for the water.
Circuit Judge Jack Von Wald sat in on the high court in place of Justice Judith Meierhenry, who is married to Mark Meierhenry.
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