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did not adequately consider whether the underground aquifer in the area could supply the amount of water to be used by the dairy.
• The proposed 7,000-head dairy, which would be located two miles northeast of Fulton, would use an estimated 720,000 gallons of water a day.
• The board decided not to appeal the circuit judge's decision to the South Dakota Supreme Court, but instead will hold a new hearing on the permit September 18 and 19.
• South Dakota Assistant Attorney General Diane Best, representing the state's Water Rights Program, said the judge sent the case back to the board to only consider whether water flowing into the aquifer will compensate for the water pumped by the dairy.
• But all parties in the case have agreed the hearing also will deal with the other factors legally required for issuing a water permit, she said. That means evidence can be presented on whether the dairy's use of water would be a beneficial use, be in the public interest and not harm existing water rights held by others, Best said.
• Lawyers for Hanson County Dairy and Concerned Citizens of Hanson County, a group of residents who oppose the project, agreed to the date and terms of the new hearing, Best said.
• The board's attorney, Assistant Attorney General Jeff Hallem, said the dairy permit is the only issue scheduled to be handled in the September board hearing.
• In his April decision, Judge O'Brien said the board had failed to adequately consider evidence under a state law that requires an analysis of whether the amount of water drawn from an underground source will exceed the amount of water flowing into the source.
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(Continued on page 15)
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