Cases test South Dakota’s water-rights system
PIERRE – The methods and judgments of two engineers for the state’s water rights division came under question on May 6.
Lawyers for two farm families who have neighboring operations in Spink and Beadle counties worked to undercut the engineers.
Those tactics didn’t sit well with the four members of the state Water Management Board present for the hearings.
They voted unanimously to deny both sets of applications.
One group, the Petersons, sought new wells for agricultural irrigation from the Tulare: East James aquifer.
The other group, the Olsens, sought to take surface water from an unnamed tributary of the James River for which one of the Peterson group already has a state right to use for irrigation.
The state board will consider another set of applications today from the Petersons group for new wells for agricultural irrigation from the Tulare: Western Spink Hitchcock aquifer.
The Olsens group is fighting against those.
Ray Rylance, a Watertown lawyer who is a past member of the state board, is representing the Petersons.
Joel Arends, a Sioux Falls lawyer, is representing the Olsens.
Both lawyers seemed intent on eliciting answers from the state’s witnesses that would set a basis for future arguments, if their clients take the next step and file appeals of the board’s decisions to circuit court.
The board’s denials upheld the recommendations of the state chief engineer for water rights, Jeanne Goodman.
The board in December 2012 granted the last round of permits from the Tulare: Western Spink Hitchcock aquifer.
Currently there’s “not a reasonable probability” the aquifer will recharge faster than the proposed wells would withdraw water from the aquifer, DENR’s Ken Buhler said in a report to Goodman.
Buhler also recommended against granting more permits for the Tulare: East James aquifer because it already is fully appropriated.
If an aquifer is fully appropriated, applicants can participate in a lottery drawing to be next in line when water becomes available.
The lottery is scheduled for today after the hearings are concluded, according to Ann Mines-Bailey, a lawyer for the water rights division.
“The evidence you’ll hear today is, Nothing’s changed, there’s no water available,” she said at the outset of the first hearing.
Buhler said the Tulare: East James aquifer underlies about 123,500 acres in Spink and Beadle counties on the east side of the James River.
He said the data from observation wells indicate the aquifer is fully appropriated. He described the data as “the best information available” for the aquifer.
He said there isn’t any additional water available for the latest applications or any others.
Buhler said he last checked observation well data in September 2014.
Rylance showed that the water levels in two of the observation wells came up more than two feet between 2012 and 2014.
“I don’t think I can use the last two years isolated from the entire period of record,” Buhler said.
Buhler said storage in the aquifer would be depleted if average annual withdrawal exceeded average annual recharge.
He said a prior DENR engineer raised the question whether the aquifer could be further appropriated because the water levels were rising in observation wells.
A deeper analysis in 2012 found there was additional water that could be appropriated, Buhler said.
The additional appropriation made in 2012 hasn’t worked its way into the average yet, according to Buhler.
Arends asked whether the aquifer would suffer damage if more water were taken from the aquifer beyond the recharge rate.
“It certainly violates state law, but it wouldn’t hurt the aquifer,” Buhler said.
He added that some of the new permits approved in 2012 haven’t been developed yet.
Rylance portrayed Buhler as providing incomplete information to the board.
“I think I have every reason to tell you the full story,” Buhler said in response to a question from board member Jim Hutmacher.
“I couldn’t think of one either,” Hutmacher said.
Board member Tim Bjork said he found some of the arguments disturbing.
“We seem to have lost all of the other data as we’ve gone through this discussion. There’s much more to it than just the observation well. I think we need to keep this in mind,” Bjork said.
Board chairman Chad Comes asked Buhler how often he’s comfortable revisiting the level in an aquifer. Buhler said five years. Comes said that’s the time frame set by the Legislature.
Neither Rylance nor Arends presented a witness on those well applications.
“We want people to put our water to beneficial use. That’s what the law requires,” Mines-Bailey said.
“I think this board could grant probably one permit,” Rylance said.
Rylance said the engineer and chief engineer should present other data as allowed under the state rule.
Arends said there should be a firm policy or process rather than solely the discretion of the field engineer.
Arends said the board should “scrutinize more heavily” the authorized amounts and the amounts actually used. “I would encourage the board to look at that issue,” Arends said.
No cheap fix
Hutmacher said the only ways to improve the process would be to put meters on wells and hire a circuit-rider to check on the usages. He said fees would need to be increased to pay for those efforts.
Hutmacher said hundreds of thousands of dollars of equipment could be left sitting in disuse in years when water was short. “I don’t think anybody wants that,” Hutmacher said.
“We are erring on the side of caution,” Bjork said. “We need to calculate using the best information available and, again, err on the side of caution to maintain the aquifer levels in our state.
“We have to look at it from a long-term level,” Bjork continued. “This is the best we have today.”
On the request to take more water from the unnamed tributary, state engineer Mark Rath, said it is “not likely” in normal to drier years that it could reliably provide water to a second user without affecting the current right holder.
“The probability is there is not enough water to fulfill both of these rights,” Rath said.
David Olsen, whose father is Arthur Olsen, the official applicant, testified the intent is “to irrigate some dryland ground to raise a better crop.” He said “of course” he would accept a smaller amount.
The tributary runs strong in the spring most years, according to Olsen. “It’s a lost resource,” he said.
Lenny Peterson, one of the Peterson group of farmers, testified against the Olsen’s request for water from the tributary. He said the tributary permit has been put to use in times of low water and high water since the state board granted it in 2000.
Arends argued that the 2000 runoff analysis that led to the permit could be invalid now because land use and farming practices have changed in the 15 years since.