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Corps of Engineers takes another bite at the apple

Posted on: June 30th, 2017
by David Ganje

The U.S. Army Corps of Engineers recently published a Notice of Proposed Rulemaking in a new effort to obtain control over ‘surplus water’ found in its managed water reservoir systems. The Corps is attempting to define ‘surplus water’ in order to manage and sell the so-called surplus water. This is the second time in recent memory that the Corps has engaged in this enterprise. The Corps is a federally created regulatory monopoly with management over certain waters of the United States. The Corps is in effect the world’s largest civil engineering firm. In its last attempt, the Corps was hand-slapped for trying to sell water it did not own. So now it proposes to ‘enter into contracts for access to surplus water.’ These contracts will inevitably involve the exchange of money of course. In good bureaucratic language the Corps states that it desires to “establish a new methodology for determining a ‘reasonable’ price for surplus water Contracts.”

The Corps in this new rule takes two radical positions regarding water rights. 1. The Corps in drafting this new rule publically states it does not have to acknowledge the several upper Missouri River basin states’ claims to the natural flows of the Missouri river. These Upper Missouri River basin states include North Dakota and South Dakota. ‘Natural flows’ are waters in a river available by law for the states to allocate for the beneficial use of the citizens of the states. In other words these are state’s rights claims to use of the waters within its borders. Under case law and several statutes, states have the right to make use and allocation decisions concerning water within its borders. 2. The proposed new rule also chooses to dismiss claims that the upper basin Indian tribes have to waters under the Winters Doctrine. The U.S. Supreme Court held in the Winters case that water rights were reserved for Indian tribes as an implied right to the use of waters under the treaties that created reservations. These water rights are preserved for the tribes whether or not they are in current use. Nevertheless, in its comments the Corps states, “In proposing this rule, we recognize that Tribal reserved water rights enjoy a unique status under federal law. We do not believe that the proposed rule has tribal implications.”

In both instances described above the Corps is proceeding akin to a bureaucracy that wishes no interference from outside sources. The Flood Control Act under which the Corps obtains authority states that no sale of water may be made that affects existing lawful uses of the water. How could one manage or sell ‘surplus water’ until you knew the claims and amounts of those parties who have a right to the use of all the waters — now and in the future? The Corps is specifically prohibited from selling waters if such sale adversely affects existing lawful uses of such water. The Corps’ rulemaking authority does not extend to superseding legal claims to water rights by American Indian tribes or the states.

The Missouri River’s waters are impounded by the Corps in its managed reservoirs. Under the proposed rule the Corps does not include the two positions (state water claims and tribal water claims) in its calculation of surplus water, neither does it incorporate the two claims in its analysis, nor quantify any claim amounts.

Technical, unresolved issues also exist under the Corps new rulemaking effort. The Corps has over the years issued various water easements and water use agreements. A 2012 review of withdrawals from Corps reservoirs suggested that many water withdrawals are occurring without a formal water supply agreement, without a clear statement of authority for the withdrawals, or without reimbursement to the Treasury for costs incurred by the federal government in accommodating those uses. In a separate report the Corps also acknowledged that, “the quantities of water being withdrawn through these easements are difficult to determine from the available data.”

The largest use of water from the Oahe reservoir, by way of illustration, is for irrigation. This demand may increase. It would behoove the Corps to better know and quantify the demands for irrigation before it declares any reservoir water as ‘surplus water.’ The Corps master manual requires the Corps to defer to irrigation uses when conflicting claims arise. While irrigation management is not within the Corps authority, it acknowledged in 2012 that there were 60 irrigation easements operating out of the Oahe reservoir. The Corps argues under the proposed rule that it should sell water if, “. . . the authorized purpose or purposes for which such water was originally intended have not fully developed;” The risk to upper basin states and Indian tribes is that once water is regulated as surplus water, and once it is consumed by end-users, it becomes that much harder to later re-institute the original legal as well as declared beneficial uses of the water.

David Ganje practices in the area of natural resources, environmental and commercial law.

A Bill of Particulars for the legislature

Posted on: June 26th, 2017
by David Ganje

The nonmeandered waters bill passed the legislature and was signed into law on June 12th. The nonmeandered waters problem was not ‘manufactured’ by the governor’s office nor by the state courts as some argued. This argument ignores the fact that mother nature created this problem and unhappily left it in man’s incompetent lap. Another argument is that the new water law has the problem ‘backwards.’ The world is not black and white. Such an extreme view of nature and of the law will at best wrongly color one’s vision, if it does not blind one’s vision completely.

The vote on the new law during the legislature’s special session was a reflection of democracy in action. Yet the drafting and consideration of the bill was a less virtuous undertaking. Lawmakers in reviewing the bill chose to drive quickly past posted and clearly marked signs warning of hazards to be avoided. Doubtful provisions of a bill do not disappear when they are written into a new law.

The new law creates the shortest sunset provision of any natural resource law I have dealt with in my career. The law’s short life-cycle a good thing. As they say in academia, this law don’t have no tenure. The legislature now has a limited period of time for reflection on the language, intent and purpose of the law. Reflection is necessary. I will give a brief bill of particulars for the legislature’s review.

Problematic laws are sometimes passed based on otherwise justifiable legal measures. What are the faults in the new law? What particulars of the new law are in error? The following comments discuss important, unresolved issues.

1. In the statute the term “owner” of lakebeds is not described or defined. This will cause several problems. One cannot determine liability of an owner or declare immunity from liability of an owner unless the term “owner” is defined. Tenants for example do not have legal immunity under the new law. In another illustration, when a legal tenant-in-possession is the proper party to give permission to access waters, or to take other necessary acts described under the law, he cannot. The law only permits a title holder to take such acts.

2. The Act creates two sets of laws for nonmeandered lakes. The rights, duties and liabilities of landowners under the law’s designated nonmeandered lakes are not the same as the rights, duties and liabilities of the landowners under all other nonmeandered lakes.

3. No setback rule is created. The law does not provide for a minimum setback from dwellings or confined livestock concerning sportsmen’s activities on the waters. A uniform setback near dwellings and confined livestock which will be easily understandable by both sportsman and landowners alike should be established.

4. The emperor has no clothes. No express declaration is made in the law stating that recreational use is a beneficial use of public waters. The SD Supreme Court in two cases said the legislature needs to make a declaration one way or the other about recreational use of public waters. A properly drafted declaration of recreational use will not give recreational use priority or preference over other uses.

5. No quiet time for sportsmen’s activities near dwellings and confined livestock is established. The purpose of a quiet time rule is to preserve a landowner’s privacy and right to sleep and repose. Landowners want to be good hosts on these waters, but don’t want to become indisposed at all hours of the day or night. No host would. No one wants a two-stroke ice auger running next to their home at 5 in the morning.

6. The new law permits a lease or purchase of public water rights. But it does not work that way. The state cannot buy or lease from private lakebed owners the ‘recreational use’ of the waters. All public waters in South Dakota, including nonmeandered waters, are held in trust by the state for the benefit of the people of that state. The law now authorizes the state to ‘buy’ recreational use of waters overlying private property. GF&P would be making a mistake if it attempted to exercise this provision of the law.

7. All infrastructure activity on nonmeandered waters is managed by GF&P. However the law does not include a due process provision giving a landowner advance notice of proposed activity to be taken in the immediate area near a landowner’s private property. Providing for advance notice safeguards the landowner’s ability to know what is going on before it happens. Other law in the state provides a property owner with advance notice when property is to be affected by other state approved projects.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law. Mr. Ganje is working with the South Dakota Farmers Union on this matter.

South Dakota’s version of Alice in Wonderland

Posted on: April 19th, 2017
by David Ganje

What are non-meandered water bodies in South Dakota? In Alice in Wonderland the mock turtle says, “Well, I never heard it before; but it sounds uncommon nonsense.” Non-meandered is a surveying and legal term for what are called temporary water bodies. The term in basic concept means waters that are ‘shallow or likely in time to dry up.’ And, of course time is a relative concept for sure. In 2004 the South Dakota Supreme Court in the Parks case declared that such water bodies were public water bodies even though the land underneath, the lake beds, could remain privately held property. Importantly, Parks held that all waters including non-meandered waters are public property. Yes, the law can be schizophrenic. Current law pits land rights against water rights and creates a legal no-mans-land.

I was not involved in the Parks case, and on reviewing the decision I was not convinced the parties in the case presented the best arguments or even undertook the best legal strategy. I did nevertheless use this case as an illustrative case when I taught a law class a while back. The case is an example of how complicated even natural resources law can be when the two legal concepts meet. We have under the Parks decision schizophrenic property claims: one granting public property rights to the water and one granting private property rights to the underlying and surrounding land. The landowners in Parks received no remedy from the Court which deferred the real problem to state government.

Modern medicine has had good success in treating those diagnosed with schizophrenia. Such success is not the case concerning the legal schizophrenia I describe in this article. In Parks the Supreme Court said that unresolved issues of management of these public water bodies should be taken care of by state government. The Court pretty much directed state government to do something about it. That’s a tall request in a short world. The state Game, Fish and Parks three times proposed legislation to the South Dakota legislature in an attempt to cure this legal schizophrenia. All efforts presented to the legislature have been to no avail. One should not expect the inmates in bedlam, that is state legislators, to recognize there might be a problem. I may have maligned the wrong party by calling the law (as an institution) schizophrenic. It strikes me that the legislature needs therapy.

In 2014 private landowners, seeing no relief in sight went back to court. I guess the wise principal of once burned twice shy is asking too much of those who exercise too much faith. Several landowners filed a new lawsuit claiming these public water bodies are misused by outdoor enthusiasts. More particularly landowners in the lawsuit claimed that outdoor enthusiasts were ‘firing guns, blaring music, operating loud machinery, getting drunk, littering and so forth.’ To me this sounds like the bar scene in Aberdeen a few years ago. Yet even so, I fully understand the frustration of the complaining landowners. Management of these newly declared public waters is necessary. Landowners optimism in seeking relief in the courts was however what we should call blind faith. A full and complete remedy did not occur. In this second court go around, the Supreme Court stated, “. . . until the Legislature acts, neither the public nor the Landowners have a superior right to use the waters and ice overlying the Landowners’ private property.” Hunting and fishing is integral to the economy. Game, Fish and Parks in a recent report stated that outdoor activities have a significant effect on the state “generating nearly $1.9 billion dollars in economic activity” in 2016. So, alas, legislators not wishing to deport themselves as thoughtful leaders have dutifully ignored this legal problem. Welcome to Alice in Wonderland.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.

South Dakota Drainage Problems

Posted on: February 17th, 2017
by David Ganje

Many are searching for a solution to the continuing problems and conflicts on the subject of water drainage in South Dakota. As reported in my previous articles, county commissioners in the state have fundamental authority over these issues. Unfortunately, not all counties in the state have faced theses legal responsibilities head-on. As of 2013 it could be reported however that one particular county has it right, and can act as a model for others. Yankton County pinpointed the specific water drainage issues affecting their county, and determined how to resolve them. Perhaps these steps will inspire other counties to work as diligently.

Based on the observations and conclusions of Patrick Garrity, the successful and reputable Yankton County official in charge of the drainage program for the county, the first act the county took was to step back and analyze how water drainage problems, along with the little-heeded laws and regulations, affect the county. To do this, Yankton County used a wetland conservation service to analyze its 500 square miles of land. The analysts found that almost half of Yankton County falls under the category of wetland, and had a solid potential for tile drainage systems in order to improve crop production. When faced with the knowledge of how much tile drainage could improve the county’s agricultural lands and economy, the Planning and Zoning Committee knew they had to act on this information.

Before discussing the Yankton ‘miracle’ further, I will say a few words about countywide comprehensive plans. A “comprehensive plan” is a county legislated plan required by South Dakota law for each county. The plan must be implemented prior to creating general zoning and water drainage ordinances. A comprehensive plan is a document that describes in words, and may illustrate by maps, plats, charts, and other descriptive matter; the goals, policies, and objectives of the county board to interrelate all functional and natural systems and activities. Without a plan, zoning ordinances, including drainage ordinances, are invalid and unenforceable. The South Dakota Supreme Court has spoken and pretty much said, ‘Hey, you need a plan.’ Nevertheless, few counties have listened. To paraphrase what the Supreme Court said: A county commission has only those powers as are expressly conferred upon it by statute. With regard to water drainage problems, the power of county commissions to adopt ordinances is contained in a South Dakota specific planning statute: ‘For the purpose of promoting health, safety, or the general welfare of the county the board may adopt an ordinance to regulate . . . the location and use of buildings, flood plain, or other purposes.’ But a county must first adopt a comprehensive plan before adopting water drainage ordinances; it is impossible to adopt an ordinance implementing a required comprehensive plan if that plan, the first required step, does not exist. The first watchword to success in water drainage is a comprehensive plan.

Now let us observe the experience of Yankton County. Previously, the drainage commission of Yankton County used permits to decide drainage issues, mainly for economic reasons; issuing permits was a lot cheaper than having the issue settled in court. However, there were several problems with the commission’s previous system. First, it was terribly informal – all a farmer had to do to apply for a permit was state what they wanted to do, where, and roughly how. In most cases, these inquiries did not go further unless someone contested the permit application. Second, due to low application criterion, the drainage board often ran into problems by granting permits to those who did not use them properly. Because of these problems, it was evident that change was needed.

To solve these issues, Yankton County held meetings to discuss the problem and possible solutions. The county formed a commission of experts from all sides; including those who opposed tile drainage, and those who supported it, to study the problems. The commission considered each viewpoint and each professional opinion. The commission met once a month for 18 months, and succeeded in enacting an effective drainage ordinance.

The heart of Yankton County’s new, and effective, drainage ordinance had its roots in reestablishing the parameters under which the reestablished Yankton Drainage Board would base their findings and decisions. Specifically, they referenced the National Resource Conservation Service’s (NRCS) soil conservation handbook to create a more concrete and specific basis for allowing drainage permits. This resulted in more explicit guidelines and standards for the board to follow. This is what I call good baseline guidance and management.

The final step is to use concrete facts and evidence in the county’s application process to make decisions. As Mr. Garrity stated, “You cannot create a finding from an emotional standpoint,” meaning that concrete evidence and specific examples are required when contesting or offering ideas. By using concrete facts and evidence, the county is better able to make productive decisions, rather than simply arguing over their own personal opinions; an issue many counties today are facing.

Yankton County has also employed the use of the most current technology and systems available, such as LiDAR. LiDAR stands for Light Detection and Ranging; it is an optical sensing technology that can measure the distance between properties and can more definitely draw property lines. Therefore, LiDAR can solve many of the problems associated with water drainage systems. The technology’s outstanding accuracy gives the Drainage Board definitive facts, and has made a huge difference in how decisions are made.

By following these steps, Yankton County has been able to enact effective water drainage laws. They have instilled more confidence in the board by giving them specific criteria to follow, and provided solid facts on which to base every decision. In addition, by involving commissioners from different backgrounds and of multiple opinions, they have guaranteed that the decisions are not only best for everyone, but also just. Yankton is also promoting education on this subject, so more county residents can understand the problem and work to implement the solution. As of 2013 Yankton County was a model for getting water drainage right.

Author: David Ganje. David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.

Wetlands mismanagement – American style

Posted on: February 15th, 2017
by David Ganje

Wetlands play a role in the ecosystem and provide benefits for both people and wildlife. Society’s idea of wetlands management includes protecting water quality, storing floodwaters, retaining groundwater during dry periods, and providing food. Wetlands are also a source of biodiversity and serve as a habitat for species of fish and wildlife. It is estimated that one hundred years ago, the U.S. had over 221 million acres of wetlands. Today, the number is 107.7 million acres. The decline in the wetlands is linked, in part, to modern agricultural production. The government estimates that there are 6.4 million acres of wetlands in the prairie pothole region of South Dakota, North Dakota, Minnesota and Iowa. While I wrote about current languishing federal legislation addressing wetlands in a prior opinion piece, this article discusses the bureaucratic management of wetlands by the USDA.

The U.S. is not the old super-bureaucratic Soviet Union; nevertheless, the U.S. has a myriad of federal bureaucratic agencies, departments, services, divisions and offices, particularly within the USDA. For the convenience of the reader (and myself) I refer to all USDA related offices or divisions as simply ‘USDA’ instead of using the alphabet soup abbreviation for the particular office within the USDA.

Let me set the stage. The USDA has been involved in the wetlands management since 1977. Farmers, ranchers and landowners are incentivized to preserve the wetlands on their property by receiving government benefits. Beginning in 1990 and continuing through 1996, the USDA created maps to show wetlands determinations, or more specifically what was and was not a wetland. So that we don’t get lost in the timeline, I refer to the maps created during this time as “pre-1996 maps.” In 1996, the USDA completed several internal studies and concluded that the pre-1996 maps were not accurate and should not be used. Between 1996 and 2013, the USDA moved to a more comprehensive system to determine what is and isn’t a wetland. This new system was more accurate than the pre-1996 maps because it relied on several different techniques, such as onsite evaluations, maps, aerial photography, and soil samples.

Now here is the kicker. In 2013 the agency stopped using onsite evaluations, aerial photography and soil samples and reverted back to issuing wetlands determinations using the inadequate pre-1996 maps. Thus, in 2013 the pre-1996 maps were to be the ‘new’ method of making wetlands determinations. Alas, these older maps sometimes underestimate the amount of wetlands on a piece of property. For example, by using an inaccurate pre-1996 map the agency caused the reduction of wetland acreage in North Dakota by nearly 75% on 13 tracts. In another example, a 2010 map showed 34 acres of wetland on a tract of land but the pre-1996 map showed that the tract only had 2.5 acres. Since the USDA approved a landowner’s petition, the producer drained 31.5 acres of wetlands without being penalized with the loss of farm benefits. Remember the agency first asserted that the pre-1996 maps were unacceptable in 1996, yet they repeatedly reaffirmed this position over the years, most recently in a 2012 report. In 2013 the agency reversed this position so it could use the pre-1996 maps. Curiously, during this confusing time South Dakota USDA officials decided, on their own, not to follow their own USDA directives. USDA bumbling has created interstate chaos in wetlands management. The lack of uniformity in applying the rules caused complaints. I have yet to deal with a landowner who has experienced uniform treatment under the wetlands program.

Adding to the bumbling, senior officials finally realized that there was an inconsistency in the way wetlands determinations are decided between different states. In 2013 the USDA stated it would “clarify” its new decision-making process. It did not. The agency did not published anything on its official decision to revert back to the pre-1996 maps for over three years. And we were all taught that only families could be dysfunctional. This messy stew resulted in an Inspector General investigation and report.

Bumbling. Now I admit to bumbling some of my games of chess, however that is not the question at hand. But to the point: we all hold a low opinion of the stupidity of a bumbling government agency, and yet we all know we gotta have government. Just try to live without the security and benefits of a government – you will need to be a pretty good shot as well as a full time prepper, and yet you still won’t have a long shelf life.

So, let’s figure out what to do on the issue of wetlands management. The USDA has blown it. It is now incumbent upon USDA to get its act together and quickly. We must remember that the individual landowner does not always directly get the eco-benefits and the financial advantage by the imposition of wetlands management upon his land. It can happen, that is, the USDA may determine that private property should be regulated for the protection of a particular body of water or a species. Such action does not benefit the immediate landowner but rather benefits the environment and is the country’s form of stewardship of the land. We will have to live with a rational management of wetlands or choose to become the Wild West of environmental management as the Chinese tried for about 30 years. Go ask them now if that was a good idea.

The USDA Inspector General last month issued his critical report stating the USDA should, “Issue official guidance reinforcing correct and current rules and clarifying procedures for making wetland determinations…, including the status of pre-1996 determinations.” The USDA accepted the Inspector General’s criticism and declared it would provide clarification and specific guidance to evaluate the status of prior determinations. It’s a start. The USDA will need to learn how to chew gum and walk at the same time; it must both fix yesterday’s problems as well as manage wetlands rationally going forward.

Wetlands management may be a problem in which ‘institutional bypass’ is in order. In this case by institutional bypass I mean contracting with private enterprise to take care of the backlog of problems and create a fair and streamlined access to wetland determinations.