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Archive for the ‘South Dakota Law’ Category
Do I Really Need a Water Use Permit?
Yes, you probably do. Under South Dakota law, with the important exception of water rights in Indian Country and on certain federal lands, all water within the state is the property of the people of the state. The right to the use of water may be acquired by ‘appropriation’ as provided by law. A water appropriation is authorized by the state Water Management Board granting the legal right to secure a private, beneficial use of the state’s water resources. Approval by the Water Management Board authorizes the use of either ground water or surface water. A water right, often called a permit or a license, is then issued either as a new legal water right.
A permit to use water is required for all water uses in South Dakota save for certain limited domestic and agricultural uses of water. However, this limited use of water requires a permit if water use exceeds either 25,920 gallon per day or a peak pump rate of 25 gallons per minute. The following types of water use require a water right permit.
- Commercial uses such as tourist attractions, truck stops, restaurants, campgrounds, motels, or any other type of business.
- Industrial uses where water is to be used for processing, cooling, dewatering, etc.
- Institutional uses such as churches, prisons, etc.
- Irrigation use
- Municipal use (water distribution systems using 18 gallons per minute or less do not need to get a water right permit)
- Rural water system use (water distribution systems using 18 gallons per minute or less do not need to get a water right permit)
- Suburban housing development use (in excess of 18 gallons per minute)
- Recreation use
- Fish and wildlife propagation
By way of illustration, if one is interested in constructing an irrigation project a water right permit is needed. And, importantly, this water permitting system and rules remain in place even in a drought year.
The fine points of the application process and procedure will not be discussed in this piece. But let the water permit applicant beware – the devil is in the details. Upon approval of an application a water right permit is issued by the Chief Engineer on behalf of the Water Management Board. In some instances the Water Management Board directly controls the decision. The permit includes information supplied on the application as well as any qualifications, meaning operating conditions, attached or required by the Chief Engineer or Water Management Board. A permit is not forever if it the water project is not started. The law and sometimes the state place time periods during which a water use project must be completed and the water placed to use.
An application could be filed to amend an existing permit or license. An existing permit or license may be amended for a change in use, a change in point of diversion or for other changes if the change does not: (1) unlawfully impair other party’s existing rights; (2) continues to be for a beneficial use as determined by the state definition of that term; and (3) continues to be in the public interest again as determined by the state definition of that term.
A water permit could be cancelled for the following reasons: The project is not constructed within the authorized construction period; a failure to place water to timely use may result in either forfeiture or abandonment. Water must be placed in use at least once every 3 years. If not, all or any part of the water that is not used is subject to cancellation. Indifference to water rights and water law is a fool’s game but some have played it.
More action needed to protect mussels
From South Dakota News Watch 3/23/2022
Since Faltys’ study was published, the state’s only specific action to protect freshwater mussels has been a 2020 state administrative rule that bans commercial and noncommercial harvesting of freshwater mussels. State regulations allow people to pick up empty mussel shells, but not those of endangered or threatened species.
Chelsey Pasbrig, a GFP aquatic biologist, said in an email that her agency is concerned about the decline of freshwater mussel populations in South Dakota, and it is aware they are among the most endangered animals in North America.
“GFP has begun collaborations with other states to explore the option for augmenting populations with propagated individuals; however, this is in its infancy” she wrote. “Kaylee Faltys’ study provided us a snapshot of the status of freshwater mussels in South Dakota; however, future research and monitoring is likely needed.”
Pasbrig added that no current mussel monitoring efforts are underway in South Dakota.
“Unfortunately, the professor at SDSU who could assist with this expertise is since retired, therefore future monitoring and research efforts have not continued at this time. There are endless questions that exist regarding the status of freshwater mussels in S.D. and across the country; however, limited resources both financially and staffing exist,” she wrote.
Since at least 1995, the GFP also has sponsored mussel research by a retired University of Sioux Falls faculty member and a retired departmental wildlife biologist, among others.
Pasbrig says the department currently addresses water quality issues that may be contributing to decreased mussel abundance and diversity through the Conservation Reserve Program, the James River and Big Sioux River Conservation Reserve Enhancement programs, the EPA 319 non-point source watershed projects and riparian buffer programs. The state agency also recently expanded its private lands habitat program and aquatic habitat program, which partner with landowners and other conservation entities to improve habitat, Pasbrig says.
GFP did not respond to follow-up questions asking for figures on the net numbers of additional landowners and acres in the expanded private lands habitat and aquatic habitat programs. A request for the number of stream miles of riparian buffers created in the last several years also was not answered, but previous reporting by News Watch has showed that state efforts to encourage implementation of agricultural buffer strips has been extremely slow to catch on.
The U.S. Fish and Wildlife Service declined to comment on its role in monitoring and protecting freshwater mussels in South Dakota at this time.
Faltys and others have called for further research and monitoring of freshwater mussel populations in South Dakota.
“Our research … suggests that the statewide unionid structure is changing quickly, thus adequate conservation strategies are needed for the future survival of this group,” Faltys said.
Biske, of the Nature Conservancy, agrees that “more can be done” in South Dakota to monitor and conserve existing freshwater mussel populations
But under the two major federal acts pertaining to water, the Clean Water Act and Safe Drinking Water Act, individual and groups of South Dakotans do not have the right to take legal action against ag-related nonpoint source polluters, says David Ganje an Aberdeen native who practices natural resource and commercial law in South Dakota.
However, when endangered species are involved, government entities have the right to intervene to protect the endangered species, although this is rarely done, he said.
Individual states do have the power to regulate non-point source pollution and protect wildlife, should their policymakers choose to do so. South Dakota law states that both South Dakota’s waters and wildlife are the property of all South Dakota residents.
Ganje points to Wisconsin as a state that manages non-point source pollution well, with a published 5-year, 110-page plan. Wisconsin’s approach results in better surface water quality, despite intensive farming and industrial activity. Its most recent report states that 83% of its waters are healthy, 13% are impaired and 4% are being restored. South Dakota’s corresponding numbers are almost reversed: 78% of stream-miles are impaired in some way, while only 22% are healthy. Lake acres are 85% impaired and only 9% healthy.
Wisconsin also has a strategy to reduce phosphorus and nitrogen pollution from fertilizer applications.
“If over time those parties in society [agricultural, manufacturing, construction industries] are put in the limelight, invited to meetings, having the DENR/DANR sit down with them and say ‘What can we do as a group? What should we do? These numbers are getting worse and worse and worse.’ You know, there might even be some press that shows up to some of those meetings. That’s how you change this stuff,” Ganje said.
Naked in the Wind
I continue to be in a state of puzzlement. My dad would sometimes tell me I was young and naïve. I am now considerably older and by the looks of it still naïve. I always thought South Dakotans said, ‘local control is better.’ This as I was taught is a good maxim for government.
A maxim is a moral rule, principle, or a particular behavior pattern of mankind. I have considered, naively, that local government control is desirable.
Local government control applies to wind farm ordinances. County ordinances covering the development and operation of wind farms are not exclusive of course; the state has adopted a series of statutes and rules administered by the PUC and to an extent the SD GF&P which also apply. Yet the more local government participates in the process the better the representation of residents. Only some counties in South Dakota have adopted local wind farm ordinances also known also as wind energy ordinances.
Wind energy projects create siting issues. The physical placement and configuration of wind turbines, roads, fences, collection lines and the like must be considered. Relevant questions include a project’s impact on existing land use, on a neighbor’s land use, and the environment. These are local issues.
A few months ago on behalf of a landowner client I submitted an extensive letter to a county commission in the state advocating the adoption of a wind energy ordinance. The county had none. I have in the past been accused of being a tree hugger. This criticism is an ad hominem distraction. Neither I nor my client are opposed to wind energy development. I am a third-generation businessman, and in my work have represented natural resource developers.
In the letter to the county, I discussed several things to consider including turbine setbacks, the development application and approval process, decommissioning, infrastructure, and safety. In some counties unfamiliarity with wind technology has kept county leaders from addressing wind development. Contrariwise some counties, like Lincoln County, have adopted significant restrictions on wind energy development.
Creating a county oversight and permitting process, that is – writing a basic wind farm ordinance setting down “rules of the road” gives wind energy projects an affordable, streamlined, and accountable system for legal permitting. On the other hand, open range (meaning no requirements) in which a county has no guidelines is an unsuitable system for a county that has adopted a comprehensive plan.
In Ag and ranch country there are risks in doing nothing. Please consider the matter of abandoned wells and orphaned non-tax-paying gas wells in Harding County. This problem challenges Harding County leaders on questions of how to re-establish a tax base and what party is to clean up all the unused infrastructure.
In a 2013 article in the South Dakota Law Review the author discussed property rights and the preservation of local control in the context of state surface drainage practices. The author said that keeping local oversight is important to county commissions because each county wants to know where related activity occurs within its boundaries; and further wrote that many citizens appreciate local ordinances because these ordinances ensure that a project applicant would, 1. notify the county and the affected landowners and 2. that a public hearing would be scheduled before a proposed project begins. The author’s comments apply equally to a wind energy ordinance. Wind energy ordinances establish reasonable parameters on local planning issues and make the project development process and its operations clearer to residents and the public.
Water Law Revision Recommended
South Dakota is in a state of drought, breaking century long records for extreme dryness. June 2021 has been the driest June in South Dakota over the past 127 recorded years, according to the government monitoring site, drought.gov. Another report from SDSU revealed that as of February of 2021, 89% of South Dakota was in some level of drought, with 50% being in severe drought or worse. As of August 2021, 100% of the state is facing abnormally dry conditions, while 92% of the state is experiencing moderate drought or worse, according to the U.S. Drought Monitor.
The governor of South Dakota declared a state of emergency in 2021 in response to the widespread drought conditions in the state. A recent news article indicated that all of South Dakota is suffering from drought conditions ranging from abnormally dry to extreme levels of drought.
The US Army Corps of Engineers estimate that the runoff amount for the year 2021 may be the 10th driest year since 1898, in the Upper Missouri River Basin, which constitutes the Missouri River water above Sioux City.
Mark Sweeney, a professor at the University of South Dakota, was recently quoted as saying, “Things like this should make us focus more on making sure we have plans in place for really severe droughts in this state so ultimately the economic impacts can be minimized to the best extent possible.”
The state has the legal authority to shut off water rights in times of emergencies. Historically the DENR, now known as the DANR, has issued orders to shut off junior surface water rights permits (based on a permit date or prior vested legal authority) in roughly 3 or 4 basins (A “basin” is “a natural or artificial land surface depression with or without perceptibly defined beds and banks to which surface runoff gravitates and collectively forms a flow of water continuously or intermittently in a definite direction.” Shut off orders have also been issued for irrigation rights. Most shut off orders direct water rights holders to stop using water are temporary. However, the current drought may very well result in more of this type of government action. From my experience I know that the staff of the DANR understands that this powerful ‘policing tool’ is not to be undertaken lightly. The DANR understands the importance of these water rights permits whether current, vested or otherwise legally created.
My objection is with the current legal process by which a shut off order should be issued, and under what fair processes such a decision can be made. The shut off procedure has never been considered by the state’s highest court. The current shut off procedure needs real change.
Due process rules and regulations of the state – which apply to other administrative contested matters – are not included in the South Dakota law which grants the chief engineer of the DANR the right to shut off a permit holder’s water rights. Current law states that the state’s chief engineer on his or her own, and without a hearing, may, after appropriate investigation, issue an order to shut off or limit a person or permit holder’s use of surface water or groundwater, or order them to plug or otherwise control a well. The current law is intended to protect those water rights of another user who has higher or earlier priority rights or to cause a user to discontinue the use of water to which that user has no legal right. The shut off law provides no rights to the user by way of advance notice and by way of providing the user with a description of the problem at hand. Nor does the law offer an opportunity to contest the ‘decision’ of the engineer or have a public hearing on the matter before the agency or before the state Water Management Board.
Courts in other jurisdictions have recognized that “once rights to use water are acquired, they become vested property rights. As such, they cannot be infringed by others or taken by governmental action without due process and just compensation.” At a minimum, the government must provide notice and opportunity for hearing appropriate to the nature of the action and reasonably calculated, under all the circumstances, to give parties notice of the proposed action and afford the water rights holder an opportunity to present arguments, objections, and facts. These safeguards should be placed in South Dakota law.
