Water rights may be determined by blind fate

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Farm Forum

PIERRE — A state board will use luck of the draw to set some water rights in South Dakota.

Whether that’s through an Excel spreadsheet randomizer, pulling slips of paper from a hat or some other device, such as a bingo-number cage, isn’t determined yet.

In October, the state Water Management Board will decide on the method then use it for the first time in December.

The randomization process will be used only for applications for water rights from aquifers that the board decides are already fully appropriated. Fully appropriated means that more water generally shouldn’t be taken. But people can still apply, in the hope that an existing holder would give up a water right from that aquifer or have to surrender it for non-use.

A new state law passed by the Legislature says the board should follow a random process for ranking those applications.

The board would rule on pending applications before formally declaring a water body is fully appropriated. After public notice that a water body is fully appropriated, the board would accept applications for a 30-day period. Those applications would be placed in a drawing to determine order of priority for a water right if one becomes available.

Jeanne Goodman, chief engineer for the state water rights office, said the first declaration of full appropriation will cover the Floyd: Pearl Creek aquifer in the Iroquois area. That is scheduled to occur about July 1. The timetable calls for accepting applications from Aug. 1 through Sept. 1. The state board would set its luck-of-the-draw process after that and conduct the priority list at its Dec. 3-4 meeting.

Every five years, the staff and board will review the status of water bodies that have been declared fully appropriated.

People who want to remain on the priority list would need to pay a renewal amount equal to 10 percent of their original fee.

People who receive water rights after being on the priority list wouldn’t be able to sell or transfer their rights unless they had first put the water to beneficial use at the location on the application. That has to be done within three years.

The board is waiting on a court case involving the Tulare: Western Spink/Hitchcock and Tulare: East James aquifers. The board says those two aquifers in the Tulare area are fully appropriated, but some applicants have filed a lawsuit.

Lawyer: Water rights can be sold

A lawyer told state Water Management Board members on May 7 that South Dakota law does not prohibit selling state water right from one party to another.

The question came up during the board’s consideration of a water right originally granted for 128 acres owned by Richard Boomsma near Hitchcock.

The board approved transferring the right to Bixler Farms for land approximately 12 miles away.

Ray Rylance, the attorney representing Bixler Farms, said the transaction involves two family friends and no money is changing hands.

Boomsma has rarely irrigated in the past two decades because of wet conditions during the 1990s and because the property subsequently was enrolled in the federal Conservation Reserve Program and taken out of production.

Jeff Hallem, a senior lawyer for the state attorney general’s office, said the Legislature hasn’t told the board to consider whether one party is paying another for a water right. Paying for a water right transfer isn’t any different from sale of a liquor license or another type of license, he said.

“There’s no prohibition for consideration,” Hallem said.

The recipient of a state water right has three years to put the water to beneficial use or face revocation by the board unless there are special circumstances.

The Boomsma-Bixler Farms transfer involves water from the Tulare: Western Spink/Hitchcock aquifer.

Bixler Farms has been on a waiting list for a right from the aquifer, which the state board considers to already be fully appropriated.

However, state law doesn’t require the board to consider whether there is un-appropriated water available in the case of a transfer.

There are applications by three parties, including Bixler Farms, pending within one mile of the well location that Bixler Farms plans to use with the transfer.

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