Water Law Archive - Attorney Blog | Natural Resources, Commercial Law

Archive for the ‘Water Law’ Category

Some water law for landowners and trespassers

Posted on: March 14th, 2020
by David Ganje

Most things in life are not free, but use and enjoyment of lakes, rivers, and streams in South Dakota often are. In South Dakota, water resources are held in trust by the state for all its citizenry. The SD Department of Environment and Natural Resources regulates water use and makes sure that uses conform to the public interest.

Stemming from South Dakota’s sovereign authority and codified by statute, the public has a right to recreationally use water (like the kayakers pictured above on Split Rock Creek, pictured in SimplySouthDakota.com) when that use conforms to “public purposes.” Public purposes are defined as boating, fishing, swimming, hunting, skating, picnicking, and similar activities.

Free use of public bodies is extended to the underlying bed (including dry bed) between the Ordinary High Water Mark and the Ordinary Low Water Mark, so long as the overlying water body is capable of recreational use. For navigable rivers and lakes, free use extends 50 feet landward from the Low Water Mark, so long as the distance does not extend past the High Water Mark.

The unique space between the High Water Mark and Low Water Mark also serves as a “right-of-way” when a publically managed water body is used for public purposes. It is prudent for those using the water to have an understanding of the law to avoid trespassing on private land.

The ownership of land grants the owner a bundle of rights, which include the right to defend privately owned property from trespassers. But even private land may be encumbered for the use of “public rights.” For instance, South Dakotans have a right to travel on public highways, including section lines that divide plats of land. Section lines are an example of a public right-of-way which the public is free to use without the permission of a private landowner.

Similarly, navigable and other non-navigable waters are considered public highways under South Dakota law. Rivers that are described as navigable under federal law are considered the same under South Dakota law. Federal law defines navigable waters as waters of the United States that were historically used to facilitate interstate commerce.

Yet the state holds all waters, outside of Indian Country, in trust for the benefit of the public but not as an owner or proprietor. The people of the State own the waters but not in the exclusive or absolute sense.

This water right-of-way is not limitless. In South Dakota, riparian (adjacent) landowners own the land down to the Low Water Mark. Recreational users of water for public purposes however can use land located between the High and Low Water Mark via this right-of-way. It is unlawful for a riparian owner to interfere with the water right-of-way between the High and Low Water Mark, even if the landowner is under the false-but-reasonable belief that the public is trespassing.

This prohibition includes the use of livestock fences that keep non-owners off the waterway. Fences across navigable streams must have a 6 foot high by 6 foot wide gate or they are unlawful. Federal navigable waters like the Missouri River are not allowed to be fenced off, regardless of the presence of a gate.

How do recreational users access public water when a landowner owns the submerged land up to the low water mark? Public ownership of the water body and the accompanying right-of-way does not create an automatic easement to access the public water. The water right-of-way only applies to the space between the High and Low Mark.

However, a limited right to portage exists in South Dakota. Portage refers to the carrying of boats and supplies overland between two waterways or around an obstacle to navigation. The term can also refer to the route by which a user of the waterway accomplishes this task.

We will here not talk about how I might have accessed water during my youth. The “statute of limitations” immunizes any conceivable transgression on that score. A fellow can never be clever enough to buy back his past. When public water has no access point, the state of the law can make access functionally impossible because there is no law that gives universal access “down to the water” if this entails trespass over private land.

The law is not like a snowplow on a truck. The snowplow on the highway department truck is supposed to be proactive and in front of a problem trying to make things right. The law is an after-the-fact remedy which sometimes fixes the issue at hand.

Water law is like the Missouri River before the dams were put in. It meanders all over the place over time.

David Ganje of Ganje Law Office practices in the area of natural resources, environmental and commercial law. The website is Lexenergy.net

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.

Brownfields: A Calculated Risk Missed by Tribes and South Dakota

Posted on: December 2nd, 2016
by David Ganje

The EPA defines a brownfield as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.” The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) mandated that the purchasers of property are liable for any contamination on this property regardless of when they acquired a site. However, CERCLA also created a defense known as the “innocent landowner defense” that can only be used if “appropriate due diligence” was conducted prior to the acquisition of the property. Appropriate due diligence has been exercised if an environmental site assessment (ESA), a thorough investigation of a site’s current and previous owners, has been prepared.

ESA’s have an average cost of about $4,000 for a small business acquisition and can vary depending on variety of factors specific to the job. The typical businesses that leave behind brownfields include gas stations, dry cleaners, railroads, oil refineries, liquid / chemical storage facilities, and steel / heavy manufacturing plants. Typical hazardous materials they leave behind include hydrocarbons, solvents, pesticides, heavy metals such as lead, and asbestos.

What is so dangerous about leaving these brownfields alone? Many of these brownfields are abandoned commercial properties and tend to be an eyesore in the community. Not only can this lead to decreased property values in surrounding neighborhoods, but the property can also pose serious health risks for new tenants and their neighbors.

Once a brownfield has been identified, the EPA provides two options for cleanup, revolving loan fund grants and cleanup grants. The purpose of revolving loan fund grants is to enable states, political subdivisions, and Native American tribes to make low interest loans to carryout cleanup activities at brownfields properties. Cleanup grants provide funding for a grant recipient to carry out cleanup activities at brownfields sites.

Since the cost of cleanup is considerable, the grants may provide several hundred thousand dollars towards the cost of cleanup. This money comes with strings attached, of course. Among other things, the costs are shared with the property owner, by at least 20 percent, and the brownfield site must be cleaned up within a three-year period.

Entities eligible for the EPA’s brownfield grants and loans include state, local and tribal governments; general purpose units of local government, land clearance authorities or other quasi-governmental entities; regional council or redevelopment agencies; states or legislatures; or nonprofit organizations. If you are not an eligible entity, you may still be able to receive assistance through your state or city.

In South Dakota, the agency that provides statewide brownfield assistance is the Department of Environment & Natural Resources (DENR). DENR receives funding from the EPA for assessments and cleanup and have discretion in how to allocate those funds. For example, a national hotel chain looking to redevelop a brownfield site in South Dakota would not be eligible to apply for assistance through the EPA directly. However, the hotel chain could contact DENR for assistance and DENR could use their funds to perform an ESA or help with the cleanup.

In 2015, Sioux Falls received an assessment grant for $400,000 from the EPA. In addition to performing site assessments, they plan to use the money to update the city’s brownfields site inventory, prioritize sites, plan for cleanups at priority sites, and perform community outreach activities. They, like DENR, also have discretion in performing assessments and have made assessments available to entities who would not be eligible to apply for grants from the EPA.

With these options available to assist with brownfield redevelopment, why do so many brownfields remain untouched in South Dakota? In the last 5 years the EPA only awarded four grants in South Dakota. They gave an assessment grant to Sioux Falls and cleanup grants to Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Lower Brule Sioux Tribe. This suggests that other entities are not aware of the grants available to them, they are dissuaded from applying, or they do not have the structure to run a brownfields program.

Since South Dakota is not small Rhode Island, which is about the size of Brown County, businesses and other eligible entities find it is more economical to buy available land than it is to redevelop a brownfield site. This misses the mark. A brownfield site is many times in an attractive location. A brownfield site is often close to business activity and transportation or the prior owner would not have developed it.

Although the grants and other forms of assistance are “competitive,” grants are awarded based on guidelines. The deadlines for applying for assessment and cleanup grants from the EPA is December 20, 2016, so it’s not too late.

View the original article at FarmForum.net

You Get The Water With The Land – Sort Of

Posted on: October 28th, 2016
by David Ganje

Gaze over your shoreline property knowing that you can access the waters directly in front of you. Unfortunately, under New York law, depending on the shape of the shoreline and how lot boundaries are drawn, this may not be the case. New York courts use different principles and their own discretion in determining the reach of landowners’ riparian rights.

In Muraca v. Meyerowitz, 13 Misc. 3d 348, 350 (Sup. Ct. 2006), three adjacent riparian landowners disputed each others riparian water rights boundaries primarily because one of the party’s private boat occupied a large portion of surface waters near the shore.

Under New York law, riparian rights only arise from the ownership of land abutting or surrounding a body of water, such as a lake or a pond as long as there is contact between water and the land. In Muraca, the Court recognized that riparian landowner rights extend out to the navigable portion of the water body, but go no further. A riparian owner has the right to access water and the related right to protect the water from illegal drawing of the water as well as the right to build out to the water by way of a dock, slip or pier.

When a controversy concerning riparian rights arises, the resolution sought is access to water from shoreline properties. How to determine the rights of access between riparian landowners is complex.

In New York there are no mechanical rules used to draw the lateral boundaries between riparian landowners. Rather, courts strive to give an equitable allocation of the waterfront area, with the right of access depending on the frontage available to the landowner based on the lateral boundaries of their properties.
The Muraca court explains that two principal formulas have been derived for establishing lateral boundaries in the context of landowner’s riparian rights.
First, the “perpendicular rule” extends the lateral onshore boundaries out to the navigable body of water by lines that are perpendicular to the shoreline. This principle is equitable when there are only minor shoreline irregularities (i.e. a straight onshore boundary).

Second, the “proportional method” attempts to draw a path between onshore boundaries that are proportionate to the amount of frontage the landowners enjoys. When choosing a method or modifying a rule, a court will consider a landowner’s right to direct access to navigable waters along with their neighbor’s right of direct access.

So it is not just one’s right of access to navigable waters that matter when resolving such controversies, but rather what in fact matters are one’s riparian rights in relation to one’s neighbors.

There are limits attached to these general principals. A riparian owner must remember that he is always subject to the restrictions to which he agreed when he purchased the property. Outside of these contractual or deed restrictions, riparian landowners cannot extend their “upland boundaries”, or the boundary above the mean high tide line, to form the lateral boundaries of the land under the water. This limit however is not all encompassing. New York courts have recognized that a riparian owner’s right to the natural flow of water along its land is properly classified as real property, equally with the land. A party could nevertheless acquire an interest in the water flow separate and distinct from the land under the water.

In Muraca the Court found the proportionate rule inapplicable and modified the perpendicular rule because strictly applying the perpendicular rule would have unfairly reduced the defendants’ right to access their outshore surface waters.

Ironically, even though the boat owner was given more riparian rights to access the outshore waters in front of his property than the complaining plaintiff requested, the Court found the party’s ability to dock his 28 foot boat to be of little consequence. The riparian rights boundaries only have to be sufficient enough to accommodate reasonably sized watercraft.

The implications of a court determining the riparian boundary lines based on general principles of equity is memorable.
First, it suggests that a court can alter your deed if you eventually find yourself in litigation over the riparian rights of yourself and other riparian landowners.
Second, and perhaps more importantly, under New York law, when riparian real property increased by “accretion”, or the gradual addition of property along a shoreline, then new formed land belongs to the upland landowner. However, if the riparian boundary lines are altered as the court did in Muraca, then the new lands normally entitled to riparian landowner will go to their neighbor.

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

Brownfield Due Diligence – Don’t Get Married, Get Engaged

Posted on: October 22nd, 2016
by David Ganje

Let’s not pretend. We have messed up parts of mother earth. Now let’s use the tools at hand to undo the mess and be good stewards again. Brownfield recycling, that is the brownfields program is one means to that end. If you are looking to start a new redevelopment project don’t get married, get engaged. Do your due diligence and explore the possibilities from exposing a brownfield.

The EPA defines a brownfield as “real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant”. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) mandated that the purchasers of property are liable for any contamination on this property regardless of when they acquired a site. However, CERCLA also created a defense known as the “innocent landowner defense” that can only be used if “appropriate due diligence” was conducted prior to the acquisition of the property. Appropriate due diligence has been exercised if an environmental site assessment (ESA), a thorough investigation of a sites current and previous owners, has been prepared.

What is so dangerous about leaving these brownfields alone? Many of these brownfields are abandon commercial properties and tend to be an eyesore in the community. Not only can this lead to decreased property values in surrounding neighborhoods but the property can also pose serious health risks for new tenant and their neighbors. For example, the Love Canal disaster in Niagara Falls, in the late 70’s. Hooker Chemical Co. dumped over 20,000 tons of chemical waste in the unfinished and abandoned Love Canal. The canal was later paved over and sold to the city. The city then developed residential neighborhoods and schools on top of the contaminated land. About 25 years later, after an unusual amount of rain, a large amount water absorbed by the land upwelled the “entombed” chemical waste. Residents complained of chemical burns, organ failures, mental disabilities, and congenital birth defects. Eventually local families were relocated and the land was cleaned up. However, in recent years, residents on the rebuilt lands have complained of health issues similar to the ones originally reported 35 years earlier and have filed lawsuits against Hooker Chemical Co.’s parent company.

Once you suspect that the land you are planning to purchase could be a brownfield in need of cleanup what can you do? If you have not purchased the land yet you could include provisions in the purchase agreement that can indemnify you from liability for claims associated with existing contamination.

If you have done your due diligence and you know what you are getting into then you should already know that the Environmental Protection Agency (EPA) has set up the Brownfield Cleanup Program (BCP) “to encourage private-sector cleanups of brownfields and to promote their redevelopment as a means to revitalize economically blighted communities.” The BCP provides incentives through, grants, loans, training, and tax benefits to aid with the cleanup. Since the cost of cleanup is considerable the BCP may provide several hundred thousand dollars towards the cost of cleanup. This money comes with strings attached of course. Among other things, the costs are shared with the property owner, up to 20%, and the brownfield site must be cleaned up within a three-year period. In addition to tax incentives and financial assistance provided through the various governmental programs the land developer should be comforted by the fact that his contributions have also helped the environment. Furthermore, awards are given out by the NYC Brownfield Partnership providing public recognition for the most successful brownfield redevelopment projects.

Additionally, taking on a new brownfield project in NYC grants access to special municipal assistance programs through the NYC Office of Environmental Remediation (OER). The OER was established in 2009 to “design, build, and operate a set of world class municipal programs to advance cleanup and redevelopment of brownfield sites.” Since then they have developed over thirty new programs that take some of the most blighted properties in some of the most disadvantaged neighborhoods, cleans them up, makes them safer, and enables new development that brings new jobs and affordable housing.

The OER also distributes a variety of letters to aid sellers, lenders, and prospective buyers of brownfield properties. An “environmental review and assessment letter” is issued after the OER conducts an ESA on the property in question. It is used to provide assurances against liability. A “standstill letter” contains a preapproved remedy plan developed by a seller and the OER. The letter can be used to enroll the property in a brownfield cleanup program so that a prospective purchaser might receive financial assistance. This letter is intended to provide comfort to a prospective purchaser and its lender since the purchaser will be able to better estimate the cleanup costs.

If you have already started a construction on a new project and just learned of contamination, you may still be able to request a “look back letter” from the OER which would grant liability protection. Although a developer can gain liability protection after a project has started, they will not be eligible for brownfield funding incentives.

Many prime redevelopment sites are located on brownfields, don’t get married. Get engaged first and do your due diligence.