Hamlin County, Agropur Plan to Lay Wastewater Pipeline in Right of Way, Law Be Darned

The Hamlin County Commission appear willing to break the law—or at least test it sorely—to favor Canadian cheese maker Agropur and its wastewater pipeline. At its regular meeting on May 22, the Hamlin County Commission heard from Agropur that the company has secured easements for all but one stretch of land along the fourteen-mile route where Agropur plans to lay a pipe that would dump two million gallons of wastewater a day from Agropur’s expanding cheese plant in Lake Norden into the Big Sioux River northwest of Estelline. At its April 4 meeting, the commission told Agropur it could build the pipeline in the right of way if it couldn’t secure easements from all landowners. But last week, according to Jenna Aderhold in the print-only May 30, 2018 Hamlin County Herald-Enterprise, a lawyer for landowner Ron Beare and Hamlin County State’s Attorney John Delzer told the commission it doesn’t have authority to permit that use of the right of way:

The letter from Beare’s attorney said the county commissioners did not have the authority to grant Agropur permission to run in the right of way, but that the landowner only has the permission.

…States Attorney John Delzer agreed with Beare’s attorney that the commissioners didn’t have the authority to grant permission for the pipeline and recommended they rescind the motion to allow Agropur to run the waterline in the right of way [Jenna Aderhold, “Agropur’s Pipeline Paused by 1/2 Mile Easement,” Hamlin County Herald-Enterprise, 2018.05.30].

Yet the commission left its motion in place, rejecting their own lawyer’s advice and instead agreeing with Agropur VP Tim Czmowski that there’s “grey area” in the law:

[Chairman Randy] Rudebusch said the state law doesn’t say the commissioners can’t allow the water line, nor does it say they can. The commissioners also didn’t want to stand in the way of the project because of a half of mile of right of way access. Agropur representatives also mentioned they planned on running the pipe in the right of way on the opposite side of the road from Beare’s land, so they wouldn’t be able to file an injunction on behalf of the other land owner [Aderhold, 2018.05.30].

Point of order, Mr. Chairman. There is no Tenth Amendment reserving powers to the counties not delegated to or prohibited by the state. Counties are subdivisions of the state, with powers organized and classified exclusively by the Legislature. Counties don’t get to impose sales taxes or devise new tax schemes without Legislative approval. The strict limitation of county powers was the whole reason for the big debate over this year’s House Bill 1184, the CAFO poopline bill: SDCL Chapter 31-26 allows counties to grant utilities access to the right of way to install phone and electric lines but not other infrastructure, so CAFO operators had to seek an addition to that chapter to include manure disposal lines. That bill failed, so counties’ authority remains limited to permission for phone and electric lines, not CAFO pooplines, cheese-plant wastewater lines, or anything else that some big corporation might want to lay in the right of way without the permission of adjoining landowners.

The strict interpretation of local government power is known as the “Dillon Rule,” from a nineteenth-century Iowa ruling. Our state constitution includes a home rule provision that allows local governments to adopt charters under which they may “exercise any legislative power or perform any function not denied by its charter, the Constitution or the general laws of the state.” However, as far as I can tell from my morning Googling, only Oglala Lakota County and Todd County (as well as ten cities) have adopted home rule charters, meaning Hamlin County can do only what the Legislature says it can do… and the Legislature says Hamlin County can permit power lines and phones in the right of way and nothing else.

Seeing grey where there is none, Agropur says it plans to plow ahead:

Digging for the pipeline is slated to start in three weeks and they intend to use the right of way based on the county’s earlier decision if the easement from Beare’s doesn’t go through. The pipeline project is salted for completion October 1 [Aderhold, 2018.05.30].

Agropur’s piping plan assumes the Department of Environment and Natural Resources grants its amended surface water discharge permit, to which fourteen entities, including all four rural water systems between Lake Norden and Sioux Falls, have expressed opposition.

Related Reading: Residents in the East Twin River watershed in Wisconsin have complained that discharge from an Agropur wastewater pipeline from its Luxemburg cheese plant has lowered fish counts in their river. Residents have been trying to get Agropur to connect its wastewater to the Green Bay metro sewer system instead of dumping straight into the river.

Update 2018.06.02 17:14 CDT: An eager reader helps me find the half-mile strip in question where Agropur and the county say they are willing to test/break the law to lay the wastewater pipeline: