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In SD you cannot mine water

Posted on: July 24th, 2017
by David Ganje

Gold is a nonrenewable resource. And under SD law, gold can be mined until it is gone.  Water – if it is mismanaged – is also a nonrenewable resource.  Whether as surface water or groundwater, water cannot be ‘mined’ under SD law.

Groundwater supplies about 54% of freshwater water use in the state.  Groundwater is subsurface water that saturates pores or cracks in soils and rocks.  It is replenished by precipitation. It is unevenly distributed in both quantity and quality.  Natural replenishment is subject to interruption by man’s intervention. Aquifers are water bearing formations (pools) of groundwater. Aquifers can be drained to the point of depletion.  This is not a speculative statement.  According to a 2016 study done by the Texas Water Development Board groundwater levels in all major and minor Texas aquifers have declined from predevelopment levels in response to development of groundwater resources for agricultural, municipal, and industrial uses.  The Southwest Kansas Groundwater Management District acknowledged in February of 2017 it is managing a depleted groundwater system. And, while not widely known, a 2013 report by the US Geological Survey indicates that the level of SD aquifers is down.

Nothing shames man’s intelligence more than when human design is used to abuse nature.  This is the very reason behind the concept of water as a public asset.  The  SD Department of Environment and Natural Resources (DENR) and the state Water Management Board are the agencies with authority to manage the state’s public waters.  Their job is to not let water users of the present borrow from the future; that is, the available sources of water in the state are managed in order prevent depletion.  SD law states, “No application to [use] groundwater may be approved if . . . it is probable that the quantity of water withdrawn annually . . .  will exceed the quantity of the average estimated annual recharge of water to the groundwater source.”  This is the anti-mining of water provision found in the law.  It has been suggested that SD is unique regarding this provision.  That is not correct. Other states have similar law.  Idaho has been enforcing its anti-mining provision successfully in court since the early 1970s. State management of state public waters held in trust for the people is the most important environmental issue SD handles.  I can state that DENR is the most open and accessible of any other state’s environmental agency with which I have dealt.

It is up to the state to determine if a body of water has been ‘exhausted’ and should not be accessible to new water permits for industrial or irrigation purposes.  This makes DENR and the Water Management Board both judge and jury on some important questions. When an aquifer is used to its full capacity such that any further use would clearly deplete the aquifers ability to recharge its deficit, it is said in the world of water law that the aquifer is ‘fully appropriated.’  Any new applications for use of the water then put DENR and the state Water Management Board in the role as judge and jury so to speak.

SD has determined that two aquifers are currently fully appropriated.  There is a third aquifer that is close to receiving this designation.  When a body of water is fully appropriated, no further permits for use of the water are approved.  If future water levels and quantities make it available at a later date, it is possible the state would later grant such use.

Monitoring water levels is an ongoing duty of DENR. When temporary overuse is determined DENR has authority to issue shut-off orders.  A shut-off order prevents a license/permit holder from accessing such water even though a previous permit was granted.  At present there are two shutoff orders in place.  A shutoff order is often a temporary directive, and if water levels recover to acceptable levels the shutoff order is withdrawn.

Agencies and boards are not however infallible.  And in the area of water rights this can present a revealing story.  In 2012 the state Water Management Board granted an industrial water permit for the use of 720,000 gallons of water per day for a commercial dairy operation.  Local neighbors challenged this decision by the Board in state Circuit Court.  The Circuit Court in its decision determined that existing well data based on historical use of three decades from nearby test wells was not a sufficient showing of what an additional draw of 720,000 gallons of water a day would do to the affected aquifer.  The Circuit Court ruled there had not been an adequate showing of how the aquifer would recharge itself absent some good evidence of the impact of the requested new use on the aquifer.  The permit applicant in that case offered no water study (hydrology study) reviewing the applicant’s water use impact on the aquifer, and yet the Board approved the permit.  The Circuit Court reversed the Water Management Board’s decision.

I suggest that water use permit applicants who will be using large quantities of water from a water body be required by rule to provide the state with recharge studies as a part of the application process.  The state’s established policy forbidding the mining of the public’s water would be better served.  Such a rule is not currently in place in any SD tribal water code or in the state’s water code or rules.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.