U.S. Water News Online
ABERDEEN, S.D. -- A lawyer for the Lewis & Clark Rural
Water System has told the South Dakota Supreme Court 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
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
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,"
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.
Return to the
U.S. Water News' Archives page
Return to the U.S. Water
Use a comma to separate e-mail addresses:
Hi, I thought you might like to read this article.