Ridenbaugh Press/Water Rights

What are the water rights when water floods, overflows banks and runs across usually dry property? Who has the rights, and for what?

A measure in South Dakota, which has experienced some flooding in recent years, took aim at that question, but became controversial enough to die before passage.

House Bill 1135, sponsored by Representative Charlie Hoffman, R-Eureka, and other House members, answered the flood water question simply: The water travelling over the land of a private land owner was that land owner’s water, at least temporarily.

The measure passed the House before engendering hot discussion around the state. It died in a Senate committee, just ahead of a hearing packed by sportsmen and others critical of the measure.

The bill grew in part out of state Supreme Court decision about nine years ago suggesting that the question of excess water was one that state law simply didn’t address, and that the legislature should consider and address it.

A web site named GoWatertown.net argued, “Attention, everyone needs to do there part to protect our outdoor heritage this could completly change South Dakota outdoors as we know it so please take the time to inform yourself and please email our South Dakota represenitives to tell them to vote down bill HB 1135 they vote will be on Tuesday the 12 of Feb. so we have no time to waste we need to get on this right of way.

“Talking points against HB 1135: Access onto water over private land; This bill is the most anti-sportsman legislation in recent years, and will in fact negatively affect every man, woman and child in SD. The intent of the bill is to overturn over 130 years of water law and make all non-meandered public waters private. Over one million acres of water will be taken from the public for use exclusively by private interests. This Legislation affects non-meandered lakes, all rivers and all streams everywhere in South Dakota.”

The opinion piece continued: “As we have seen, low water can prevail for decades, fish populations change, fur prices go up and down, and dozens of other variables enter into the use of a body of water. These distinctions do not justify depriving the public of its interest in public waters, but that is exactly what this proposed bill will do. This is an issue that could impact and completely change the tradition of access onto the public­s water here in South Dakota. The impact is not limited to fishermen and hunters. The bill also covers, wading, bird watching, or just floating on an old inner tube enjoying the sun.

“THE PROPOSED LEGISLATION IS AN OUTRIGHT GIVEAWAY OF PUBLIC PROPERTY. USFWS service numbers show a total of 932,829 wetland basins in East River SD, and 172,867 West River, for a total of just over 1.1 million wetlands and lakes. These basins and the rivers and streams that connect them comprise 9.8% of the surface area of East River, and 2.4% of West River. The average basin size is less than ­ acre. Of these 1.1 million basins, fewer than 2000 are considered to be permanent, natural wetlands. Many of these are meandered* and are not affected by HB 1135. However, the legislation does affect well over 99% of these basins. (These figures do not take into account the thousands of rivers, streams and creeks which will also be impacted by HB 1135!)”

The United States Section of the International Boundary and Water Commission has released the Draft Environmental Assessment and Finding of No Significant Impact, Improvements to the Rio Grande Rectification Project. Public comment on the document will be accepted through September 2, 2008.

The study analyzes environmental impacts of plans to raise Rio Grande flood control levees and dredge the river in the USIBWC’s Rio Grande Rectification Project in El Paso and Hudspeth Counties in Texas. The proposed improvements are intended to increase the flood containment capacity of the levees and to restore the normal flow capacity of the river, which has been reduced by sediment deposition. Levee-raising in the upstream portion of the project in east and central El Paso was completed in 2007. The EA addresses proposed levee improvements downstream from the Zaragoza International Bridge and sediment removal at various sites. Improvements would be undertaken in phases as funding becomes available.
According to the EA, the proposed improvements would have a very significant socioeconomic benefit for the community by providing increased flood protection. Agricultural lands would also benefit by the increased efficiency in delivery of irrigation water resulting from dredging. All work would be conducted within the existing project right-of-way and no significant effects on wildlife habitat are expected.
The work is also consistent with Minute No. 313, an agreement of the International Boundary and Water Commission, United States and Mexico, which defines each country’s maintenance responsibilities in the Rio Grande Rectification Project.

Electronic copies of the EA are available on the USIBWC web page at: http://www.ibwc.gov/Organization/Environmental/EIS_EA_Public_Comment.html. For more information: Sally Spener 915-832-4175 sallyspener@ibwc.gov

The Cochiti Pueblo and the Army Corps of Engineers in June signed a cooperative agreement related to conducting a baseline study at Cochiti reservoir in anticipation of potentially changing storage options.
The agreement, signed at a ceremony at the Cochiti Pueblo, is related to a federal provision in the Water Resources Development Act authored by Senators Pet Domenici and Jeff Bingaman that directs the Army Corps to engage pueblos in the operation and maintenance of flood control projects in the middle Rio Grande region.
“I am proud of the Cochiti Pueblo leaders for engaging the Army Corps to reach an agreement that can improve operation of the Cochiti reservoir. I trust this arrangement will serve both the Corps and the Pueblo as they work toward the mutual goal of improving the overall management of the Rio Grande,” said Domenici, who is the ranking Republican on the Senate subcommittee that funds WRDA-authorized projects.
Congress late last year overrode a presidential veto to reauthorize a new WRDA law. Within this new law, Domenici and Bingaman included a provision to allow the U.S. Army Corps of Engineers to enter into cooperative agreements with New Mexico pueblos and give them greater opportunities to assist the Corps with operation and maintenance activities on flood control projects.
The new WRDA law also reauthorized the Corps’ Tribal Partnership program, which expired in 2006. The Tribal Partnership program allows the Corps to perform watershed assessments and study flood damage reduction and environmental restoration projects on tribal lands that will substantially benefit New Mexico’s tribes and pueblos.
Domenici also praised the signing of a Corps agreement with Bernalillo County and the Albuquerque Metropolitan Arroyo Flood Control Authority on a $24 million continuation of a South Valley flood control project.
Domenici has championed this project for more than a decade. In the new WRDA bill, he won a new authorization for the Southwest Valley Albuquerque New Mexico Flood Damage Reduction Project ($16.15 million federal authorization, $8.69 million nonfederal share). As such the Corp is authorized to continue construction detention basins and a pumping station in Albuquerque’s North and South Valley. This is a continuation of a program supported and funded by Domenici since the mid-1990s. The Corps has worked with Bernalillo County and the city of Albuquerque on these projects.
Contact: Chris Gallegos (202) 224-7082