Water dispute arises at Marty

MARTY, Nov 21, 2008 (The Daily Republic - McClatchy-Tribune Information Services via COMTEX) -- ZZGCX | Quote | Chart | News | PowerRating -- Attorneys for the Yankton Sioux Tribe have petitioned the state Water Management Board for a declaratory ruling on whether the new Longview Farm hog facility west of Wagner is entitled to area ground water.

A declaratory ruling will clarify the rights and responsibilities of both parties in the case, but will award no financial damages to either party. The board will consider the petition Dec. 11 in Pierre.

The hog confinement is about four miles from tribal headquarters in the town of Marty and about two miles from a tribal Head Start facility.

The tribe has long claimed the operation will foul air and water resources. There have been multiple attempts -- ranging from legal challenges to demonstrations by tribal members -- to stop the project. In June, U.S. Judge Lawrence Piersol refused to stop construction of the facility, ruling that the operation is on private, not tribal, land.

The petition argues that water drawn from a test well is the only water to which Longview Farm is entitled without a commercial water use permit from the Water Management Board.

The hog farm, which eventually will have an average of 3,350 sows and produce 70,000 pigs a year, opened in late September, said Sioux Falls attorney David Nadolski, who represents Longview Farm, which is owned by 11 Iowa farmers. If the challenge has the intended result, Longview Farm could be forced to apply for a commercial water use permit.

Nadolski said that if that's the case, it will not require Longview to shut down operations. The farm has sufficient rural water resources.

The tribe believes Longview Farm, a limited liability partnership, must apply for a commercial water use permit.

"Our point is that this is not a family or individually owned enterprise," said co-counsel Rebecca Kidder of Abourezk & Zephier, P.C., Rapid City, speaking for the tribe.

Domestic water rights do not cover commercial operations and the hog farm needs commercial water rights in order to operate, she said.

But Nadolski said Thursday that Longview gets most of the water it needs from a rural water system. He also said that the well in question recently collapsed and will have to be re-drilled.

All of which begs the question: Why is the tribe pursuing the issue?

Kidder said she would not characterize the petition as a last-ditch attempt to shut down the huge hog farm.

"Just as a legal matter it's important that the domestic use exception to the permitting requirement be preserved. If the board determines they're required to get a permit that opens up a public opportunity to have that discussion with the board about whether granting that permit is in the public interest.

"Our ultimate goal is to make sure that the health and well-being of the residents down there is protected," said Kidder.

She also questions if Longview will be able to get the 35,000 gallons a day it claims it will need through a rural water pipeline. But if Longview does need a well, Kidder believes it will need a commercial water permit.

The petition further argues that only family-owned entities, not commercial entities, can use water resources to water stock and that state administrative rules do not allow for the "power washing" of commercial buildings as a domestic water use.

Kidder said other land owners also are filing petitions. A board ruling against Longview's use of domestic water would also allow it to challenge the issuance of a commercial permit.

Steve Dick, executive director of Agriculture United for South Dakota, said the power washing issue "has sent up some red flags" for his and other farm groups. Requiring a water permit for power washing or any use other than watering livestock, said Dick, "would be an unnecessary burden on a lot of South Dakota farm families."

Nadolski also believes such a ruling would negatively affect the average farmer.

Kidder said the interpretation her clients are seeking will not require family farms to get a permit to wash out their feed buckets.

"They have a right under the law to sanitation use," she said.

Kidder said Water Management Board President Jim Hutmacher drilled the well in question at the Longview Farm site. Noting the conflict of interest, Hutmacher has recused himself from the case, she said.

Whatever ruling occurs, that won't be the end of it, said Kidder.

Complaints filed by both sides are pending, including a tribal complaint with the Environmental Protection Agency, said Kidder, asking for a review of "the water pollution control permit issued for this operation based on the environmental injustice issues."

"We feel that because this was located in the midst of a very low-income minority population-- a Native American community -- that there are some environmental justice issues here that need review."

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