Monday, August 3, 2020

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Senate committee kills temporary water use bills CRST testifies that industrial and mining interests are secondary and subordinate to tribal water rights

Having local public hearings and giving a voice to the voiceless were on the forefront of last Thursday’s South Dakota House Agriculture and Natural Resources Committee hearing regarding temporary water use permits. Proponents, opponents, as well as committee members, engaged in intense and concentrated discussions pertaining to House Bills 1239 and 1240 before the committee voted to defer the bills to 41st day, which killed both bills.

Representatives Oren Lesmeister (D-28A) and Peri Pourier (D-27) presented the bills to the committee which were similar in nature; however, differed by addressing two separate matters regarding the South Dakota Department of Environmental and Natural Resources’ process for issuing temporary water permits. The bills created amendments that would put in place processes for the DENR to follow prior to issuing a temporary permit.

Both bills would have given local governments a chance to voice their concerns about the use of public water resources through public hearings, it also would have mandated the State Water Board to hold the hearings in the location of the requesting government entity.

Although South Dakota Codified Law 46-5-40 pertaining to permits for use of public water states that the “Water Management Board may promulgate rules to authorize the chief engineer to issue temporary permits for the use of public water for construction, testing, or drilling purposes,” it does not detail the process for a public hearing prior the issuance of a temporary water permit if a government entity requests one.

This has resulted in controversial occurrences in which the DENR issued water use permits to high-risk mining and drilling corporations, such as Mineral Mountain Resources, without the knowledge, input, and consent of local governments and residents.

Provisions in HB 1239 were created as a solution to that problem, with amendments to read, “The chief engineer shall schedule an application for a temporary permit for the use of public water for hearing by the Water Management Board when requested by a state agency, county or municipal government, or federally recognized Indian tribe government with an interest in the water to be used or whenever it appears that the temporary permit may interfere with or adversely affect prior appropriations or vested rights. The hearing shall be held in the county or municipality where the public water is to be used.”

Dovetailing the bill was HB 1240, which also revised certain provisions regarding water permits in state Codified Law 46-1-16 to read, “Upon request of the affected county or municipality, the board shall hold a public hearing in the requesting county or municipality in regard to the application for a water permit that may affect the amount or quality of county of municipal water supplies.”

HB 1239 was the first bill to be discussed at the committee hearing and committee Chair Representative Thomas Brunner (D-29) stated that since both bills regarded temporary water permits, testimonies for and against the bill may overlap to some degree. 

Eleven proponents for HB 1239 shared their testimonies and presented diverse reasons for their support of the bill and included treaty rights, inherit water rights, tourism, birth defects, and governmental transparency.

“This is about water safety. This is about the health of our children and our livelihood. If we are to have meaningful safe guards, we must let the people have a hearing. Allowing due process makes a mark towards transparency in the most vital resource that we have,” said Representative Pourier.

To further support her argument, Pourier presented a resolution from Pennington County, dated May 17, 2018, which was passed as a direct result to the DENR’s decision to issue a temporary water permit to Canadian mining corporation Mineral Mountain Resources, without a public hearing and Pennington County’s input.

The resolution reaffirmed the county commissioners’ responsibility and commitment to providing quality drinking water to the county residents, visitors, and travelers. It also listed Rapid Creek Watershed, Pactola Lake, Deerfield Lake and Jackson Municipal Water Stations as its water resources.

The resolution also stated that the county “feels it is critical for the State Water Management Board to conduct public hearing(s) where the people who may be most affected are located prior to the issuance of any temporary or permanent water use permit by any mineral mining operation, which could potentially impact the drinking water supplies.”

Representatives from the Oglala Sioux, Cheyenne River Sioux, Standing Rock Sioux Tribes, the Great Plains Tribal Water Alliance, Dakota Rural Action, Sierra Club, as well as private citizens, provided testimony in support of the bill.

In his statement, Reno Red Cloud of the Oglala Sioux Tribe, said that the OST Tribal Council passed a resolution in support of both bills and read a letter from OST President Julian Bear Runner. The letter emphasized cultural significance of water within Lakota spirituality and life and reaffirmed the tribe’s commitment to environmental protections, cultural resource preservation, and treaty rights.

Dr. Lilias Jarding, who has worked for decades in environment policy and issues related to water in the Black hills, also testified in support of the bill. 

“In the past, DENR has objected to some hearings outside Pierre, while allowing others to be held in other locations. This creates an atmosphere of uncertainty and privileges some interests over others. This bill would level the playing field and allow governments the full opportunity to participate in local water issues,” said Jarding.

Great Plains Tribal Water Alliance Chairman Doug Crow Ghost also voiced support of both bills, highlighting risks that mining and drilling corporations have on state tourism, and outlined problems in the DENR’s permit issuing process.

“Something is wrong if foreign corporations can come to South Dakota, divert precious surface and ground water during a growing season, and engage in drilling or construction activities that could result in significant environment impacts without the local community that relies on tourism dollars to even be heard,” said Crow Ghost.

CRST Intergovernmental Affairs Coordinator Remi Bald Eagle also testified in support of both bills and talked about the Tri-County Mni Waste Rural Water Company, which provides water to CRST, Dewey, Ziebach, and parts of Meade and southeast Perkins Counties. He stated that both tribal and non-tribal members benefit from the clean water provided by the company, and reiterated the importance of clean water to public health and welfare, the environment, fish and wildlife, economic development and tourism.

Bald Eagle also emphasized the Great Sioux Nation’s water rights pertaining to, but not limited to, the Missouri River, the Black hills, their tributaries, and groundwater, as written in the 1851 and 1868 treaties.

“There are many industrial and mining uses of water proposed for the Great Plains, on and near our reservation, and the Black Hills. Industrial mining activities are secondary and subordinate to the tribal water rights,” said Bald Eagle.

Other proponents of the bills also shared testimonies, personal stories, and the importance the bills had to democracy.

Sierra Club South Dakota Chapter Chair Mark Winegar stated that only two percent of the water on Earth is fresh water, and only half of that is accessible to any living organism on the planet.

Born and raised in the Black Hills, Carol Hayes travelled from Nemo to share her thoughts on the bills.

“In South Dakota, we’re fiercely independent but somehow have ceded important decisions about water to a technocratic apparatus. And this apparatus has been seen favor special interests. These are self-interested corporations who exploit our water, offer temporary jobs, low-wage jobs, or dangerous ones, then leave the state with pockets full of cash. I think the least we can do today, think about this, all this bill asks is public input, regular citizen input. That is the smallest thing you can do today, as a body, is foment democracy by actually encouraging citizen participation,” said Hayes.

Representative Lesmeister then spoke about the importance that the bill has in putting local control back into the hands of the people.

“Give people the chance to voice their concerns. It is a huge manner, it is a big concern, and it is going to become bigger concern,” said Lesmeister.

Opponents to the bills included representatives from the DENR, state Department of Transportation, South Dakota Association of Cooperatives, and the South Dakota Farm Bureau.

Opponent testimonies were short and with some representatives simply stating that the current DENR process of issuing temporary permits “works just fine” and therefore, no changes were needed.

DENR Chief Engineer Jeanne Goodman shared her concerns about the bills’ possible impacts and delays on construction projects during the limited construction season. Because the bills would allow for public hearings before the issuing of a temporary permit, Goodman said that multiple counties could request for multiple hearings, which may result in a prolonged process. She stated that currently, her department only takes one to two days to issue a permit.

“It now could take longer to issue a temporary permit than the length of time the water is needed,” said Goodman.

The chief engineer also stated that the Water Management Board meets five times per year and that the bills, if passed, would add additional work and unnecessary expenses for the board.

“The mandate leaves no discretion and will likely result in extra meetings for that board. Special meetings to accommodate more locations can be added, but certainly at an added expense for DENR and burdensome for the citizen board members,” said Goodman.

Goodman further stated that because of added expenses, there would be no livestreaming of meetings if they were held at other locations other than Pierre, where the board currently meetings, which would cause a decrease in governmental transparency.

Goodman then added a different perspective in her testimony, which caused gasps and frustrated looks from some proponents of the bill.

“Do not let temporary water permits become a de facto land use control mechanism, which is what House Bill 1239 is really trying to do,” said Goodman.

Department of Transportation representative Bill Nevin also shared his concerns of the potential negative impacts the bills may have on the DOT operations, especially regarding highway construction, maintenance, and erosion control projects.

Nevin shared his fears that the bills may not only prolong the application of a DOT contractors, but may lead to outright denials for the permit, resulting in uncertain risks for contractors. This, he fears, said Nevin, would have a domino affect and could cause increases in contractor bids.

Other opponents to the bills wrapped up the testimonies, stating that the current DENR process worked for them, and therefore, they were opposed to any changes that the bills may have on the process.

Committee Chair Representative Brunner then opened the floor to committee comments, questions, and discussion.

Representative Mulally (D-35) said that although she is for local control, she would not support the bills because they would affect all temporary water permits, not just those pertaining to drilling and mining. She then suggested that a different bill be created to address these issues separately.

Representative Lesmeister provided a rebuttal to Mulally’s statement saying such a bill was introduced last year by Representative Bordeaux (D-26A).

“We heard the same testimony last year, almost word for word how it was going to affect everything. That bill was defeated on these same terms. I don’t know how to write a bill that would get the point across, per se, because we’ve had that bill in the past. I’m sitting here looking at Pennington County resolution- even county commissioners in some areas are asking that this needs to be done,” said a frustrated Lesmeister.

Representative Kent Peterson (D-19) said he perceived the bills to be an intentional roadblock to delay the permit process and therefore, he would vote against the bill.

In a rebuttal to Peterson’s statement, Representative Pourier added that the bills were not created as a roadblock, rather, as an important opportunity for governments to be given due process and a chance at a local public hearing.

“Citizens and entities travelled a great distance to testify, to be here because the issue is important to them and a huge concern,” said Pourier.

In an obvious jab to Pouier, Representative Mulally stated, “As the good representative has said about people travelling very long distances because it is an important issue today- if it is an important issue today, it is an important issue whenever the permit is being requested. So the travel time for myself, I’ve done it many times, If the issue is ver important to me, I will take the time to travel to be heard.”

Representative Lesmeister offered a quick rebuttal to Mulally’s comments.

“True, if the issue is important, why not travel? Why not have DENR travel and do what they are they are supposed to do and listen to the people and protect our natural resources. Why have multiple people travel when maybe one or two representatives of DENR could travel to a location? They’re (the DENR) are tasked with a job to protect our natural resources… and listen to the concerns of citizens. I do believe, actually, that this is really within the scope of their job,” said Lesmeister.

Representative Peterson motioned to defer the bills to the 41st day, and was second by Representative Chase (D-22). Voting yes to the deferment were Representatives Chase, Finck, Glanzer, Marty, Mulally, Otten (Herman), Peterson, and Brunner. Voting no were Lesmeister, Pourier, and Livermont

Interestingly, Pennington County is within Brunner’s district. The bills were deferred to the 41st day, effectively killing both bills.