David Ganje: A current look on water rights in South Dakota

Water rights, like your mother's love, are often deep but not inexhaustible. It is important not to consume it all. The right to use water, given by state-issued permits and licenses, is not a dead-end game. Competent management by the state and good stewardship by the South Dakota user are required; there are far-reaching consequences at stake.

Consider the problems in Kansas: “For half a century, groundwater managers in western Kansas have been charged with slowing the decline of the Ogallala Aquifer. Fifty years later, parts of the aquifer are nearing crisis, and legislators want action.”

Let us review groundwater rights. A groundwater right is the use of ‘public waters’ usually created by drilling wells for private use, irrigation, commercial use and municipal use. Groundwater rights are a technical and a regulated legal regime.

The state has the authority to give water rights and the authority to take away water rights. In the last 12 months, South Dakota has issued a shut off order to several irrigators who were using a single groundwater source. The state may shut off water rights in times of emergencies.

Historically the DENR, now known as the DANR, has issued orders to shut off junior water-rights permits (based on permit issuance dates or prior vested legal authority) in times of water emergencies. It is more common to see shut off orders for surface water rights than for groundwater rights. Most shut off orders directing water-rights holders to stop using water are temporary.

The shut off procedure used by the state has never been considered by the state’s highest court. The current shut off procedure needs revision. The procedure does not offer wholesome due process rights to a permit holder. But we will save that issue for another discussion.

State waters, which are held in trust by the state for use by residents, are subject to state government jurisdiction for the management of the waters. South Dakota has the authority to determine if a body of water has been exhausted. This makes the state, through the Water Management Board and the DANR both the judge and jury on some important natural resource questions.

When an aquifer is used to its full capacity such that any further use would deplete the aquifer’s recharge of its established quantity, then it is said in the world of water law that the aquifer is fully appropriated. No new permit applications for water use could be made under these circumstances.

The South Dakota DANR website on water rights correctly tells the reader that the exhaustion of a water source is prohibited. In the world of water this is called the mining of water. “Mining" occurs when the average quantity of water pumped annually from a ground water aquifer exceeds the estimated average annual recharge to the aquifer.

State water law requires that use of groundwater be capped at the average estimated annual recharge of a water body. This is one of the reasons that the state maintains over 1,000 observation wells throughout the state.

Although the law requires that if the aquifer does not recharge itself a permit should not be granted, the burden of proof on this point does not by statute lie with the applicant. The state may request that the applicant complete a water analysis if the state engineer believes that a water use problem may exist.

Aquifer recharge is water which moves from the land surface or from an unsaturated zone under the surface into a saturated zone. A saturated zone is another term for an aquifer. Recharge is necessary for evaluating the sustainability of a groundwater source.

One South Dakota trial court in the case ruled that the recharge statute requires a determination that the average annual withdrawal of water by a permit holder from the water source does not exceed the average estimated annual recharge of that water source. The trial court went on to rule that using historical data to project the future use of an existing source or aquifer would not be an adequate method for meeting this test.

While this issue has not been directly decided by the South Dakota Supreme Court, the trial court I referred to, in its ruling on a case, held that “simply looking at two hydrographs that contain three decades worth of observations and comparing the beginning observation with the last observation does not approach the requirements [of South Dakota law]”.

I agree with the trial court in this instance. A conscientious applicant should act as a steward of this natural resource and not as an abuser.

David Ganje is an attorney who practices natural resources, environmental and commercial law in South Dakota.