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CAFOs in South Dakota

Posted on: October 19th, 2017
by David Ganje

‘We used to do things for posterity.  Now we do things for ourselves and leave the bill to posterity.’  Signs of this attitude are seen in the current and historical misuse (and mismanagement) of the state’s waters.  Both groundwater and surface waters of the state are held in trust by the government for the benefit of the citizens of the state.  Waters of the state are affected by CAFOs.  CAFOs are governed by South Dakota law as well as local county ordinances.  In this opinion piece I will show how state and county governments have dropped the ball regarding CAFO regulations.  CAFOs can effect both groundwater and surface waters.  I discuss in this piece requirements for financial responsibility of a CAFO, and how that can affect the waters of the state.  This piece is not a conversation on the pros and cons of a CAFO or of its economic efficiencies.

The purpose of ‘financial assurance’ is to secure the testing and replacement of any potentially contaminated wells and water within areas near a CAFO, and to ensure proper closure of a CAFO should the operator elect to close or should the closure occur for some other reason.  Oklahoma by way of example has a financial assurance requirements which are reasonably fair from both the operator’s and the public’s perspective.

Why require financial assurance of a business which affects the environment?   There are plenty of examples of businesses shutting down and not cleaning up after themselves.  South Dakota requires financial assurance terms for oil well permits, for mining operations, for
sand and gravel permits, for wind turbines, but not for CAFOs. This noticeable absence of financial terms is also followed by counties who hold legal authority over CAFOs. Consider the current status of surface water in the state.  This is from the state’s official 2016 assessment of surface water quality:  “Currently, 21.3% of the assessed stream miles fully support all assigned beneficial uses; a decrease from 30.6% in the 2014 Integrated Report. 78.7% do not presently support one or more uses. The high percentage of impairment can be attributed largely to high levels of TSS, E. coli, and fecal coliform bacteria.”   Groundwater is also put at risk by CAFO operations.  In a 2006 study in Idaho samples from six private wells formerly used as sources for drinking water by the residents of a nearby CAFO were collected to assess the impact on the quality of the local groundwater.  The samples were found contaminated by antimicrobials and also contained elevated concentrations of nitrate and ammonium.  It is telling that South Dakota requires monitoring wells for 96 CAFOs. My concern is practical.  To whom do the neighbors turn if a CAFO cannot clean up contamination at the closure of its operations?  Discussing a CAFO Chapter 11 bankruptcy filing in Indiana, a local newspaper reported, “If a CAFO ceases operations, the state of Indiana apparently has no way to ensure an environmental cleanup because the state does not require owners/operators of CAFOs to provide financial assurance for closure.”

What happens in an abandonment of the operation, in a Chapter 7 Bankruptcy filing, or in a closure when the operation has no capital?  How does an agency hold such an operator responsible for clean up?  In this arena state and local governments have indeed dropped the ball.

Both state and counties have broad jurisdiction over writing CAFO laws and regulations.  Both write and oversee permitting.  The difference between state and county jurisdiction is not as important as the fact that they fail to deal correctly with an exit plan, also known as financial assurance, for CAFOs.   CAFO laws are complicated.  They involve providing soil and water data, nutrient management plans, buffer zones, maintaining effluent limits, hiring an engineer to ‘certify’ an operation, setback requirements, water right permits, surface water discharge permits, rules for treatment ponds or lagoons and so forth.  Taken together these laws can be called a code.  A code is a comprehensive set of rules meant to be a complete system in a particular area of law.  But in South Dakota it doesn’t.

State permitting rules require no environmental insurance or other type of financial assurance for a CAFO.  CAFOs are permitted in the following counties but the counties have no financial assurance requirements:  Minnehaha County, Lawrence County, Brown County, Spink County, to name but a few.  Clay County requires insurance in an unspecified amount to take care of closure and clean-up.  Brookings and Hughes require environmental insurance with a $100,000. minimum.  The efforts of these counties are very incomplete but do start to recognize a way to remedy the risks.

In testimony to the US Senate the USGS Associate Director stated, “The USGS has found CAFOs to be a source of nutrient, pharmaceutical, and metal contaminants in nearby waters and lands receiving wastes.”   Are state and county officials in charge of the stewardship of public waters in favor of continued indifference to clean, potable, usable water?

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

Dewey Burdock Opinion Piece

Posted on: August 30th, 2017
by David Ganje

Powertech (USA), Inc., a wholly owned subsidiary of Azarga Uranium Corp., is a uranium company with pending applications to South Dakota, the EPA and the NRC for the development of an in situ uranium mine operation in Custer and Fall River Counties. This project, known commonly as the Dewey Burdock project, would be the most significant mining operation in the state in the last twenty years.  The project is an in situ mining operation which would use two different groundwater aquifers in the course of uranium extraction and in the subsequent disposal of process related liquid waste.  I will refer to the company as the developer.  I do not represent any of the parties in the matter.

South Dakota contains several distinguishable aquifers.  These aquifers are usually horizontal in nature.  Aquifers are separated by confinement zones of rock which prevent an aquifer’s waters from flowing to the one above it or to the aquifer below it.  The developer’s project involves a number of pending permit and licensing requirements.  In this opinion piece I discuss one aspect of the project:  the waste water injection permit which would grant the right to construct and operate injection wells for the disposal of treated waste water into the Minnelusa aquifer.  This permit application is under consideration by the EPA.  The EPA has not approved or rejected the application.

The Minnelusa is a major aquifer that encircles the Black Hills and spreads out in all directions radially for some goodly distance.  The aquifer also runs eastward under all of western South Dakota. Minnelusa groundwater near the project area is hard.  It is not used for domestic, municipal or irrigation purposes near the project area. Nevertheless in other areas numerous parties including the city of Rapid City draw upon the Minnelusa aquifer for domestic, municipal, industrial or irrigation use.

The Madison aquifer lies beneath the Minnelusa.  Aquifers are separated by confining zones.  The Madison is used for drinking water and other similar uses more often than the Minnelusa because its water qualities are better.  One issue concerning the use of the Minnelusa as an injection zone for waste water is the question of leakage between aquifers. This is also called hydraulic connection.  If a confinement zone is substantial, leaking is less possible.  If a confinement zone, or its surrounding geological features such as faults, is less substantial, leaking between aquifers is possible. The developer in its water rights application stated, based analysis of groundwater from wells and springs in the general region, that some areas’ geologic features may mean water movement between the Madison and Minnelusa aquifers.

The permit application did not provide the developer’s own studies or any hired tests for the immediate project site that address the issue of possible leakage. Unrelated government studies have been done of other geographic areas of the Minnelusa, for example in 2002 and 1985.  These studies indicate that leakage from or into the Minnelusa in those geographic areas is possible. “In the eastern part of the study area, water may be leaking from the Minelusa to both the Inyan Kara and Madison aquifers.”  -1985 USGS study.  A 2014 article in the Journal of the South Dakota Academy of Science discussing the Dewey Burdock project stated, “There is the possibility that the Madison aquifer could become contaminated with this waste.”

In a waste injection permit application an applicant is required to provide information on the mineral composition and texture of aquifer confining zones. The developer stated in its application papers that there is no evidence of communication between the Madison and Minnelusa in the vicinity of the project area based on water quality differences.   This statement is true based on generally available information, but the developer did not hire out or prepare tests for the immediate project area.
In its June 2012 Water Permit Application the developer acknowledged that there are no aquifer tests in the project site.  The developer also stated that more information will be available when the first deep wells are drilled on site and pumping tests are conducted.  The EPA record  shows no tests done by the developer regarding the confining zones and aquifers in the immediate project area.  The EPA’s pending draft permit, if granted, requires the developer to provide information about  aquifers and confining zones at the site before injection could begin.

Geologic testing and sampling are essential to a mining project.  This is technical project due diligence.  Analysis of a mine’s immediate geology and water quality are also relevant to an agency’s rules and requirements.  To determine whether estimates, other nearby geologic features or other historical data are consistent with the immediate geology and water quality within a designated project site, a developer completes sampling and secures test results from within the project site.  Perhaps one could argue it is better or more economic for a developer to ‘wait and see.’  Regulations allow for such a delay.  However, early presentation of material information to agency decision makers and to the pubic makes sense for a regulated mining project that requires public input and agency approvals. Providing material information at the application stage is more likely to overcome objections.  Providing a developer’s test results from the designated project site early would also produce fewer challenges.  Such test work was not performed by the developer before or during the waste water permit application process on the Dewey Burdock project.  All project due diligence is not required by law.  Yet even so, due diligence is used by a developer to avoid risks, to prevent harm and to substantiate a publicly regulated project.

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

Is the Missouri River a mere obstacle?

Posted on: August 2nd, 2017
by David Ganje

The 2018 Energy and Water Development Appropriations bill just passed the U. S. House of Representatives on July 27th. Among other matters the bill attempts to address the ongoing issue of the Army Corps of Engineers proposed ‘surplus waters’ regulation. In a prior opinion piece as well as a letter to the Western States Water Council, both of which can be found on my website, I discuss the dangers of the Corps’ proposed rule. By its new proposed regulation the Corps wants to define ‘surplus water’ in order to control and obtain revenue from so-called surplus water in Corp-managed reservoirs. The new proposed rule is objected to and opposed by Indian tribes and several states. It must be reported just the same that none of these objecting parties effectively or productively advised Congress on this issue.

There is no question that the Corps is an essential agency in the operation of public dams, and in managing successful regional and national flood protection systems. The Corps’ value and success do not however justify its acquisitive effort to control waters to the prejudice legitimate public water claimants whether they are states or Indian tribes. The Corps is a regulatory monopoly with management over certain waters of the United States. The Corps is in effect the world’s largest civil engineering firm. As a federal agency it has been in existence since 1802 making the Corps one of the oldest federal agencies. The Corps outlasts president after president and has outlived every session of Congress since 1802. It is a powerful agency. Powerful agencies in Washington DC have a saying, ‘Don’t worry – we can outlast the summer help around here.’ By summer help they refer to the president and members of Congress.

The House of Representatives in the 2018 bill ‘requests’ that the surplus waters problem be fixed. The bill’s language does not resolve the issue or require the Corps to change its ways. The bill’s language merely makes a request. The bill states, “Surplus Water—The Committee urges the Corps to consider adoption of the alternative definition of ‘‘surplus water’’ excluding ‘‘natural flows’’ from stored water in the Missouri River mainstem reservoirs. . . .“

This is ineffective. The bill’s language was not written by an informed observer. Nor was it written by an informed participant in water rights. The bill’s language accomplishes nothing. Bureaucracies by their nature do not prefer change from the outside. Indeed, an established bureaucracy is inclined not move when nudged from without. It must be pushed. The problem at hand needs laser surgery, not placid ‘transparency.’ If the Army Corps is not required to correct its action, it will not.

What is the antidote for the bureaucratic creep? Money. Money can make an intransigent bureaucracy abide by elected official’s goals. Cut off money or reduce budgets. Money gets their attention. Certainly much more so than polite requests to comply with a preferred Congressional policy.

‘Requests’ given to teenagers and bureaucracies often result in verbal acquiescence but little real implementation. I should know. As a teenager I was given plenty of policies and requests by my parents. I dutifully confirmed receipt of parental policies, but if you were to check my activity in Aberdeen at around 11 p.m. on any given Saturday night you would find an absence of full implementation of the policies. When dealing with a teenager or a bureaucracy one cannot simply trust to the discretion of the recipient. To trust that the Corps will properly define ‘natural flows’ of public waters is a mistake. The Corps, under political pressure, started a study in 1985 to define the natural flows of rivers, but soon ‘abandoned’ the study. The Corps will never be interested in constricting its own flexibility concerning reservoir water.

It is not over however. The Senate has not yet taken up the House bill. Legislative redemption is possible. Congressional oversight by way of eliminating funding for projects or by way of de-authorizing a project is a method for proper legislative management of a federal agency. The risk to upper basin Missouri River 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 reinstate the original legal as well as declared beneficial uses of the water. A Prussian general when once asked to notice the beauty of a river nearby, turned and replied ‘an unimportant obstacle.’

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

In SD you cannot mine water

Posted on: July 24th, 2017
by David Ganje

Gold is a nonrenewable resource. And under SD law, gold can be mined until it is gone.  Water – if it is mismanaged – is also a nonrenewable resource.  Whether as surface water or groundwater, water cannot be ‘mined’ under SD law.

Groundwater supplies about 54% of freshwater water use in the state.  Groundwater is subsurface water that saturates pores or cracks in soils and rocks.  It is replenished by precipitation. It is unevenly distributed in both quantity and quality.  Natural replenishment is subject to interruption by man’s intervention. Aquifers are water bearing formations (pools) of groundwater. Aquifers can be drained to the point of depletion.  This is not a speculative statement.  According to a 2016 study done by the Texas Water Development Board groundwater levels in all major and minor Texas aquifers have declined from predevelopment levels in response to development of groundwater resources for agricultural, municipal, and industrial uses.  The Southwest Kansas Groundwater Management District acknowledged in February of 2017 it is managing a depleted groundwater system. And, while not widely known, a 2013 report by the US Geological Survey indicates that the level of SD aquifers is down.

Nothing shames man’s intelligence more than when human design is used to abuse nature.  This is the very reason behind the concept of water as a public asset.  The  SD Department of Environment and Natural Resources (DENR) and the state Water Management Board are the agencies with authority to manage the state’s public waters.  Their job is to not let water users of the present borrow from the future; that is, the available sources of water in the state are managed in order prevent depletion.  SD law states, “No application to [use] groundwater may be approved if . . . it is probable that the quantity of water withdrawn annually . . .  will exceed the quantity of the average estimated annual recharge of water to the groundwater source.”  This is the anti-mining of water provision found in the law.  It has been suggested that SD is unique regarding this provision.  That is not correct. Other states have similar law.  Idaho has been enforcing its anti-mining provision successfully in court since the early 1970s. State management of state public waters held in trust for the people is the most important environmental issue SD handles.  I can state that DENR is the most open and accessible of any other state’s environmental agency with which I have dealt.

It is up to the state to determine if a body of water has been ‘exhausted’ and should not be accessible to new water permits for industrial or irrigation purposes.  This makes DENR and the Water Management Board both judge and jury on some important questions. When an aquifer is used to its full capacity such that any further use would clearly deplete the aquifers ability to recharge its deficit, it is said in the world of water law that the aquifer is ‘fully appropriated.’  Any new applications for use of the water then put DENR and the state Water Management Board in the role as judge and jury so to speak.

SD has determined that two aquifers are currently fully appropriated.  There is a third aquifer that is close to receiving this designation.  When a body of water is fully appropriated, no further permits for use of the water are approved.  If future water levels and quantities make it available at a later date, it is possible the state would later grant such use.

Monitoring water levels is an ongoing duty of DENR. When temporary overuse is determined DENR has authority to issue shut-off orders.  A shut-off order prevents a license/permit holder from accessing such water even though a previous permit was granted.  At present there are two shutoff orders in place.  A shutoff order is often a temporary directive, and if water levels recover to acceptable levels the shutoff order is withdrawn.

Agencies and boards are not however infallible.  And in the area of water rights this can present a revealing story.  In 2012 the state Water Management Board granted an industrial water permit for the use of 720,000 gallons of water per day for a commercial dairy operation.  Local neighbors challenged this decision by the Board in state Circuit Court.  The Circuit Court in its decision determined that existing well data based on historical use of three decades from nearby test wells was not a sufficient showing of what an additional draw of 720,000 gallons of water a day would do to the affected aquifer.  The Circuit Court ruled there had not been an adequate showing of how the aquifer would recharge itself absent some good evidence of the impact of the requested new use on the aquifer.  The permit applicant in that case offered no water study (hydrology study) reviewing the applicant’s water use impact on the aquifer, and yet the Board approved the permit.  The Circuit Court reversed the Water Management Board’s decision.

I suggest that water use permit applicants who will be using large quantities of water from a water body be required by rule to provide the state with recharge studies as a part of the application process.  The state’s established policy forbidding the mining of the public’s water would be better served.  Such a rule is not currently in place in any SD tribal water code or in the state’s water code or rules.

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

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.