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Non-meandered Waters – Chapter 2

Posted on: January 31st, 2018
by David Ganje

The non-meandered waters law of 2017 is about to slide into long-term legal acceptance by the state legislature. A bill is now pending before the 2018 legislature to extend the life of this new set of statutes. The non-meandered water law passed last year at a special session of the legislature is an error-ladened compromise which, if continued without correction, will indeed slide into an indifferent acceptance by the state. The purpose of the law is to open up temporary bodies of water to public use. The law has several good points and is an effort to fix a very unique set of challenges presented by Mother Nature. It also has several clear problems. Its provisions do not have a proper definition of the owner of land, creates different rules and rights for different landowners, does not allow for setbacks and does not provide for a quiet time for recreational use of the waters. I outlined these and other problems in my open letter to the legislature: http://www.capjournal.com/opinions/columnist/a-bill-of-particulars-for-the-legislature/article_ce1b72ee-563e-11e7-93d2-67b295d08c1a.html

This new water law created two sets of laws for non-meandered lakes. The rights, duties and liabilities of landowners under the law’s particularly designated non-meandered lakes are not the same as the rights, duties and liabilities as those of the landowners under all other non-meandered lakes. Many of the non-meandered waters are over private land. The management of non-meandered waters has a more significant, direct and personal impact on private landowners than do other public bodies of water in the state. That is why the special legislative session gave authority in the law to the Game, Fish and Parks Commission to write rules to make everything ‘all right.’ The GFP Commission created new rules. Those rules tell a certain class of landowner how he might petition the Commission to take his public property off the list of waters over which sportsmen might hunt and fish. The waters in one class are automatically, under the 2017 law, open to hunting and fishing. The petition process allows for no real due process. The rules were written poorly. The legislature should correct this. It should discharge its duty and not rush to a muddled consensus on important property rights issues.

In the Fall of 2017 several landowners in Marshall County wanted a 100 yard setback of public activity on the non-meandered water covering their property. They were caught in a legal trap created by the legislature and enforced by GF&P. What they sought was not unreasonable. In fact the new law permits creating a setback for other non-meandered landowners who may do it on their own initiative. Nevertheless the water over the owner’s Marshall County land was a part of those water bodies the legislature declared to be ‘automatically’ open to public use and access. The owners of other non-meandered waters in the state can put up access restrictive buoys and create a setback. But these Marshall County landowners had to petition the GFP Commission before they might do this very act because their land fell within the ‘automatically open’ class of lakes. Additionally these landowners had the legal burden of proof to show that what they wanted was justifiable. Such a burden of proof is not required of other non-meandered landowners. In November the Commission denied the request stating that the landowners had not met their burden of proof to show why such a setback should be granted. Property rights are not an experiment. This law should not be treated like an experiment in resource management. A system creating a second class of landowners who are required to meet a higher legal benchmark to do something their neighbors can already do, all on non-meandered bodies of water, should not be tolerated in a just system.

David Ganje of Ganje Law Offices practices 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.

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

South Dakota wetlands case before the US Supreme Court

Posted on: October 28th, 2016
by David Ganje

Congress passed the Food Security Act of 1985. Under the Swampbuster provisions of this Act the USDA may make determinations as to whether certain lands qualify as wetlands and whether wetlands which have been manipulated qualify as converted wetlands. The Act passed during the Reagan Administration was written to oppose the conversion of wetlands into cropland. The Eight Circuit Court of Appeals has previously ruled that a person found to have converted wetlands into cropland may become ineligible to receive farm program payments from the federal government. Some of these wetlands are what I call cattail swamps. I spent part of my youth hunting in them.

Faced several years ago with a wetlands designation for part of their land, South Dakota farmers Arlen and Cindy Foster challenged the USDA’s decision that certain of Foster’s acreage was a wetlands. These bureaucratic proceedings took over five years. The USDA based its decision, in part, on a comparable wetlands site some 30 miles away from the Foster’s property in Miner County. Wetland regions in the U.S. include the Prairie Potholes of both North and South Dakota as well as other states.

When the Foster case was later ruled upon by the U.S. District Court for South Dakota, the Fosters were unable to provide the court with substantial evidence that the USDA wetlands decision-making process was wrong. The District Court said that “Plaintiffs (the Fosters) have not shown, beyond a bare assertion, that the range of rainfall shared by both locations or the differences in the depth of the potholes renders the ( USDA comparison) site insufficiently “local.”” The trial judge also stated that the Fosters did not challenge the USDA expert testimony about rainfall averages on the land. The Fosters then appealed this decision to the Eighth Circuit Court of Appeals. The Court of Appeals in its decision upheld the District Court and ruled that the original USDA agency decision was a reasonable interpretation of USDA regulations and that courts should give deference to the “informed discretion of responsible federal agencies.”

The Fosters have now filed a Petition to have the case heard by the United States Supreme Court. Unfortunately for the Fosters, weak facts make bad law. The Foster case, in my view, will not be accepted by the U.S. Supreme Court. Although the Foster Petition to the Supreme Court presents important arguments about agency authority to make decisions and about a court’s deference to an agency decision, the Court will also look at the underlying facts of the case before it. The facts of the Foster case are not strong. Because the Supreme Court may not hear the case, however, this does not mean that the issues raised by the Fosters are without grounds. Overreaching by the USDA in Swampbuster and wetlands decision and rulemaking is a genuine issue. Proposed legislation filed this year in Congress is intended to address some of these challenges. The sponsors of the filed bill argue that the new law would ensure more timely decisions by the USDA; would make the appeals process more efficient for a landowner/farmer and would improve government transparency in providing information to landowners and farmers affected by the Swampbuster process. The intention behind the current Swampbuster law has merit, but I am reminded of what my father said about raising me. “David, my intentions with you were good. It is the outcome that is questionable.”

David Ganje practices law 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.