Ridenbaugh Press/Water Rights

South Dakota Governor Dennis Daugaard opposed in letters to the U.S. Army Corps of Engineers all of the Corps’ activities related to reallocation of and charging for surplus water taken from the Missouri River reservoirs. (see April 22, 2013 Corps presentation on Missouri River Municipal and Industrial Allocation study)

The Governor’s opposition includes:

Under this proposal, the Corps would control management of the water used for current and future municipal and industrial use. The ability for states to manage their own water supplies for the benefit of their citizens is a state’s right that has long been recognized by the federal government;

It is a state’s right to have jurisdiction and access to natural flows through their state water right programs;

Existing uses in South Dakota are less than the natural flows so the Corps has no jurisdiction or authority to charge for water used in South Dakota.

Upstream states have already paid a heavy price for the Missouri River reservoirs when more than 500,000 acres of our most fertile river bottom lands were permanently flooded. To impose all reservoir operation and maintenance costs on upstream states alone adds insult to that injury.

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 South Dakota Department of Environment and Natural Resources has added a one-stop public notices page to its website at http://denr.sd.gov/public. The webpage consolidates every currently-active department public notice to a single webpage.

The webpage includes links to active public notices for department activities involving air quality, Brownfields, concentrated animal feeding operations, state revolving fund intended use plans, general permits, ground water discharge, mining, oil and gas, proposed rules, surface water discharge, solid and hazardous waste, water rights, and total maximum daily loads.

A proposal by the U.S. Army Corps of Engineers to add fees for certain water uses in the Upper Missouri River area has drawn a storm of rebuttal in the region and even beyond.

The impact could run through numerous water districts and cities including Chamberlain, Springfield, Oacoma and Mobridge.

News media have been critical of the proposal.

The Rapid City (SD) Journal said in September, “In the view of many South Dakotans, the U.S. Army Corps of Engineers’ management of the Missouri River needed to be changed even before last year’s floods. The corps is now proposing changes to the system’s management plan that would allow it to charge fees for using Missouri River water. That’s right. The corps proposes charging users in upstream states for storing water in reservoirs located in those states.”

It also has generated a letter from South Dakota Governor Dennis Daugaard, along with a request from from the state’s senators, Tim Johnson and John Thune, for congressional hearings on the subject.

Daugaard said the plan was not fair and possibly not legal, and “To impose all reservoir operation and maintenance costs on upstream states alone adds insult to that injury.”

Public comment was expected to run through October 10.

On September 12, Senators Johnson and Tune and Kent Conrad (D-N.D.), John Hoeven (R-N.D.), Tim Johnson (D-S.D.), and Jon Tester (D-Mont.) sent a letter to Senate Environment and Public Works Committee Chairman Barbara Boxer (D-Calif.) and Ranking Member James Inhofe (R-Okla.). They urged Boxer and Inhofe to schedule a committee oversight hearing regarding the U.S. Army Corps of Engineers’ plans to restrict access to Missouri River water and to charge users for water taken from Missouri River reservoirs.

The U.S. Army Corps of Engineers, which manages water flow from the six dams on the Missouri River, recently proposed a change that would institute a fee for gaining access to water in Missouri River reservoirs. Senators Thune, Conrad, Hoeven, Johnson, and Tester have concerns that the Corps’ actions contradict state water law, historical and legal precedent, and would have negative impacts on individuals, tribes, businesses, and water systems in Montana and the Dakotas.

From their letter:

We write to request an oversight hearing of the Environment and Public Works Committee regarding the U.S. Army Corps of Engineers’ plans to restrict access to Missouri River water and to charge users for water taken from Missouri River reservoirs.

As you know, the Corps operates six large dams on the Missouri River, and manages water flows from the reservoirs created by these dams. These reservoirs flooded prime bottom land, changing the landscape of our states forever. In exchange for the creation of these reservoirs, our states were promised the ability to utilize these water resources to meet various needs.

Until recently, users have been able to gain access to water in the Missouri River main stem system through an easement application process and associated permits, an approach that is suited to the circumstances of the Missouri River and the needs of the upper basin states. The easement application and permitting process that was in place prior to 2008 respected the rights of Montana, North Dakota and South Dakota water users in terms of access to the Missouri River.

The Corps is now contemplating a major change that would restrict access to surplus water from the Missouri River and to charge a fee for water drawn from the reservoirs. Under the Corps’ proposal, users would have to enter into multiyear purchase contracts with the Corps. While we understand that the Corps is proceeding under a national effort to standardize the allocation of reservoir water, we believe that the Corps’ proposal is contrary to unique legal and historical precedents as it relates to the circumstances surrounding the main stem dam system on the Missouri River that was established pursuant to the 1944 Flood Control Act. Therefore, we ask that the scope of our requested hearing include a review of the unique legal and historical precedents surrounding the Corps’ efforts in this regard. To better understand the legal and historical precedents, we ask that the committee invite Assistant Secretary Jo-Ellen Darcy to testify, as well as South Dakota Attorney General Marty Jackley, North Dakota Attorney General Wayne Stenehjem, witnesses representing tribal leadership, and other relevant witnesses from impacted states.

Access to Missouri River water is essential to expanding the economic base in Montana, North Dakota and South Dakota, where productive farms, businesses, tribes, and municipalities rely on the Missouri River for their livelihood. We believe that charging for the storage and utilization of the Missouri River water would be contrary to legal and historical precedents and would have negative impacts on individuals, tribes, businesses, and water systems in Montana and the Dakotas.

A wind power project sought by Black Hills Power in South Dakota appears to have little by way of obstacles – even, prospectively, some water rights.

The company said on April 28 “that it filed a request for a declaratory ruling from the South Dakota Public Utilities Commission. The request asks the commission to confirm that a proposed 20-megawatt wind farm near Belle Fourche, S.D., is reasonable and cost effective considering other renewable electricity alternatives and is an appropriate resource addition to meet the company’s resource or customer needs.”

The project also involves approvals from a string of other agencies, including the Fish & Wildlife Service and Department of Agriculture. One of those is the Department of Environment and Natural Resources, which issues permits on a number of types of projects that could have resource implications.

The Rapid City Journal reported on the DNR involvement, “The agency will also oversee a temporary amendment of the landowners’ water rights permits to allow well water to be used during construction. “The main criteria for us on the temporary permit is that it can’t interfere or adversely affect any other person’s rights for making that withdrawal,” said Eric Gronlund, engineering specialist with the DENR water rights program.”

The Bureau of Reclamation’s Great Plains Region has selected Richard Long to serve as the Dakotas Area Office Manager in Bismarck, ND. He replaces Dennis Breitzman who is retiring.
“Dick brings a wealth of operations and management experience to the position from his 36 year Reclamation career,” said Mike Ryan, Great Plains Regional Director. “His depth of on the ground experience, his ability to communicate and collaborate, along with his vision, will guide the Dakotas Area Office into the future.”

Long began his federal career with Reclamation as an Agricultural Engineer in McCook, Neb. in 1974. He worked in Reclamation’s Great Plains Regional Office in Billings, Mont., for ten years, administering the Rehabilitation and Betterment Program, along with facility operations and maintenance programs.

From 1987 to 1990 he was Water and Land Division Chief at the Grand Junction Projects Office in western Colorado. In 1990, he joined the Montana Area Office in Billings, as Chief, Water & Land Division, and has held various positions since that time as a supervisor responsible for water and land resource management, facility operation and maintenance and dam safety. Before coming to Reclamation, Long worked for two years as a surveyor for a contractor on the construction the McClusky Canal in North Dakota.

Missouri Basin/US Army Corps Engineers

The Des Moines Register reports today about the upcoming (starting in October) re-evaluation of the uses and management of the Missouri River, one of the nation’s longest and most contested.

The Register notes, “An exhaustive five-year, U.S. Army Corps of Engineers study of the Missouri begins in October. The $25 million study is expected to set up another round of battles among states, tribes and organizations with competing visions of the historic waterway. At issue: Everything from future drinking supplies and cooling water for power generation, to flood control, barge traffic, habitat protection, untapped recreational opportunities and potential economic gain.”

The Army Corps provides regular annual reports and operating plans for the river, but also conducts some periodic long-range studies and planning.

The Oglala Sioux Tribe along with the Bureau of Reclamation held a celebration on August 20 to celebrate the delivery of water to the community of Wanblee, S.D., from the Mni Wiconi Rural Water Supply Project.

The public is invited to attend the celebration that will be held at Crazy Horse School in Wanblee, S.D. The celebration will begin at 10 a.m. with Mr. Frank Means serving as Master of Ceremonies; Oglala Sioux Tribe President John Steele will provide opening remarks followed by keynote speaker, Bureau of Reclamation’s Commissioner Robert Johnson. In addition to numerous honorary speakers, guest speakers include South Dakota’s Congressional Delegation, Rosebud Sioux Tribe President Rodney Bordeaux, Lower-Brule Sioux Tribe President Mike Jandreau and former West River / Lyman-Jones manager Mr. Mike Kurle.

Prior to the construction of the Mni Wiconi Rural Water Supply Project most people in southwestern South Dakota had serious water quantity and water quality problems. Fortunately some people had the foresight of a regional rural water system to address those problems. Many more people worked together to get this Project authorized, to get it funded, to design and build it, and to maintain it.

The Bureau of Reclamation credits Tribal, state and local officials and agencies for having the vision to bring water to the Pine Ridge Reservation; that vision is now a reality. The Mni Wiconi project is a true testament that people can work together to develop a solution and overcome a common problem. The Mni Wiconi project would not have happened if it were not for the cooperative efforts of all of its sponsors. When completed, the Mni Wiconi Rural Water Supply Project will supply water to the Lower Brule, Pine Ridge, and Rosebud Reservations as well as the West River/Lyman-Jones Rural Water System. West River/Lyman-Jones serves the people located in nine counties outside of the reservations.

For more information regarding the celebration, contact Willard Clifford at 605-455-1367 or Paul Little at 605-455-2767.
U.S. Bureau of Reclamation, Great Plains Region August 18; Contact: Willard Clifford (605) 455-1367 or Patience Hurley (701) 221-1204

Recent moisture in the northern Black Hills has allowed the state Department of Environment and Natural Resources to rescind shutoff orders to two junior water right holders along the Belle Fourche River upstream of the Belle Fourche Reservoir diversion dam.

The Belle Fourche Reservoir is currently at 99 percent of storage capacity. The junior water right holders were notified on Friday, May 23, that a March shutoff order had been rescinded. The reservoir was at 54.3 percent of storage capacity when the shutoff was ordered in March.

South Dakota water law is based on the prior appropriation doctrine, which means the most senior water rights on a particular stream have priority based upon date to available water supplies over the junior priority date water rights. State water law authorizes DENR and the Water Management Board to issue water right permits to people who want to put water to beneficial use, such as irrigation, municipal water supply, or commercial use. Although the junior priority water right holders are subject to shutoff orders, state water right law gives domestic use of water from rivers and streams the highest priority. Domestic use includes livestock watering and is not subject to shutoff orders.

The U.S. Bureau of Reclamation, with a 1904 priority date, holds senior water rights for the Belle Fourche Reservoir.

Shutoff orders also issued in March to 50 junior water right holders along the Cheyenne River and tributaries upstream of Angostura Reservoir remain in effect. Angostura is currently 62 percent full. These shutoff orders will remain in place until Angostura Reservoir fills.

For more information on river flows in South Dakota, visit sd.water.usgs.gov and click on “Real-Time Water Data.” Information can also be obtained by calling DENR’s Water Right Program at 1-800-GET-DENR or visiting www.state.sd.us/denr/des/waterrights/waterprg.htm.

Drought conditions in western South Dakota have forced the state Department of Environment and Natural Resources to issue shutoff orders to 50 junior water right holders along the Cheyenne River and tributaries upstream of Angostura Reservoir and to two junior water right holders on the Belle Fourche River upstream of the Belle Fourche Reservoir diversion dam. Belle Fourche Reservoir is at 54.3 percent of storage capacity and 11.5 feet below full. Angostura Reservoir is at 46.1 percent of storage capacity and more than 18.4 feet below full.
The U.S. Bureau of Reclamation holds senior water rights for both the Belle Fourche Reservoir, bearing a 1904 priority date, and Angostura Reservoir, having a 1941 priority date. Those water rights provide for an annual fill of each of the reservoirs for supplying irrigation water to the Belle Fourche Irrigation District and the Angostura Irrigation District.
South Dakota water law is based on the prior appropriation doctrine, which means the most senior water rights on a particular stream have priority based upon date to available water supplies over the junior priority date water rights. State water law authorizes DENR and the Water Management Board to issue water right permits to people who want to put water to beneficial use, such as irrigation, municipal water supply, or commercial use. Although the junior priority water right holders are subject to shutoff orders, state water right law gives domestic use of water from rivers and streams the highest priority. Domestic use includes livestock watering and is not subject to shutoff orders.
Contact:?Garland Erbele?(605) 773-3352 Source: South Dakota Department of Environment and Natural Resources Friday March