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More action needed to protect mussels

Posted on: March 24th, 2022
by David Ganje

From South Dakota News Watch 3/23/2022

Since Faltys’ study was published, the state’s only specific action to protect freshwater mussels has been a 2020 state administrative rule that bans commercial and noncommercial harvesting of freshwater mussels. State regulations allow people to pick up empty mussel shells, but not those of endangered or threatened species.

Chelsey Pasbrig, a GFP aquatic biologist, said in an email that her agency is concerned about the decline of freshwater mussel populations in South Dakota, and it is aware they are among the most endangered animals in North America.

“GFP has begun collaborations with other states to explore the option for augmenting populations with propagated individuals; however, this is in its infancy” she wrote. “Kaylee Faltys’ study provided us a snapshot of the status of freshwater mussels in South Dakota; however, future research and monitoring is likely needed.”

Pasbrig added that no current mussel monitoring efforts are underway in South Dakota.

“Unfortunately, the professor at SDSU who could assist with this expertise is since retired, therefore future monitoring and research efforts have not continued at this time. There are endless questions that exist regarding the status of freshwater mussels in S.D. and across the country; however, limited resources both financially and staffing exist,” she wrote.

Since at least 1995, the GFP also has sponsored mussel research by a retired University of Sioux Falls faculty member and a retired departmental wildlife biologist, among others.

Pasbrig says the department currently addresses water quality issues that may be contributing to decreased mussel abundance and diversity through the Conservation Reserve Program, the James River and Big Sioux River Conservation Reserve Enhancement programs, the EPA 319 non-point source watershed projects and riparian buffer programs. The state agency also recently expanded its private lands habitat program and aquatic habitat program, which partner with landowners and other conservation entities to improve habitat, Pasbrig says.

GFP did not respond to follow-up questions asking for figures on the net numbers of additional landowners and acres in the expanded private lands habitat and aquatic habitat programs. A request for the number of stream miles of riparian buffers created in the last several years also was not answered, but previous reporting by News Watch has showed that state efforts to encourage implementation of agricultural buffer strips has been extremely slow to catch on.

The U.S. Fish and Wildlife Service declined to comment on its role in monitoring and protecting freshwater mussels in South Dakota at this time.

Faltys and others have called for further research and monitoring of freshwater mussel populations in South Dakota.

“Our research … suggests that the statewide unionid structure is changing quickly, thus adequate conservation strategies are needed for the future survival of this group,” Faltys said.

Biske, of the Nature Conservancy, agrees that “more can be done” in South Dakota to monitor and conserve existing freshwater mussel populations

But under the two major federal acts pertaining to water, the Clean Water Act and Safe Drinking Water Act, individual and groups of South Dakotans do not have the right to take legal action against ag-related nonpoint source polluters, says David Ganje an Aberdeen native who practices natural resource and commercial law in South Dakota.

However, when endangered species are involved, government entities have the right to intervene to protect the endangered species, although this is rarely done, he said.

Individual states do have the power to regulate non-point source pollution and protect wildlife, should their policymakers choose to do so. South Dakota law states that both South Dakota’s waters and wildlife are the property of all South Dakota residents.

Ganje points to Wisconsin as a state that manages non-point source pollution well, with a published 5-year, 110-page plan. Wisconsin’s approach results in better surface water quality, despite intensive farming and industrial activity. Its most recent report states that 83% of its waters are healthy, 13% are impaired and 4% are being restored. South Dakota’s corresponding numbers are almost reversed: 78% of stream-miles are impaired in some way, while only 22% are healthy. Lake acres are 85% impaired and only 9% healthy.

Wisconsin also has a strategy to reduce phosphorus and nitrogen pollution from fertilizer applications.

“If over time those parties in society [agricultural, manufacturing, construction industries] are put in the limelight, invited to meetings, having the DENR/DANR sit down with them and say ‘What can we do as a group? What should we do? These numbers are getting worse and worse and worse.’ You know, there might even be some press that shows up to some of those meetings. That’s how you change this stuff,” Ganje said.

Dewey Burdock: Will South Dakota relinquish its responsibility?

Posted on: August 24th, 2020
by David Ganje

Powertech (USA), Inc., a wholly owned subsidiary of Azarga Uranium Corp., is a uranium mining company with pending applications to several state and federal boards and agencies for the development of an in situ uranium mine operation in Custer and Fall River Counties. This project, known commonly as the Dewey Burdock project, would be the most significant mining operation in the state in the last twenty years.  The project is an in situ uranium mining operation which would use local groundwater aquifers for uranium extraction, and for the subsequent disposal of process-related liquid waste. 

The mining project has been in the application stage since 2009. No final mining authorization has been granted by the various government agencies with jurisdiction over licensing, mining and water permits.  Important issues remain outstanding and undecided.  The wheels of justice, it is said, grind slowly but grind exceedingly fine.  Let us see.

Some of the government agencies with authority to issue major regulatory permit approvals necessary for this project include the Nuclear Regulatory Commission,  the Environmental Protection Agency, the Bureau of Land Management, the SD DENR,  the SD Board of Minerals and Environment, and the SD Water Management Board.  In this opinion piece I limit my comments to only part of this complicated dance of the multitudes.  This piece discusses state protection of water sources.  I treated financial and decommissioning issues and background questions regarding water resources in other opinion pieces.

When several agencies are involved in approval of a single project, a board might relinquish its responsibilities by narrowly interpreting the scope of its authority or by deciding not to exercise authority as a matter of discretion.  Complex and fragmented multiple-agency oversight of a big project runs the risk of a board’s over-reliance on the authority or expertise of different government agencies.  This is a dangerous form of decision-making.  For South Dakota boards to defer their legal obligations on significant natural resource issues to other government agency’s inclinations is an ill-advised undertaking.  He who sups with the devil must bring a long spoon.

As a result of the fragmented multiple-agency oversight, I am concerned South Dakota’s boards may limit their existing and established authority.  It is an established principal that state laws which do not directly interfere with (read preempt) the operation of federal programs or federal laws continue to be valid and enforceable by the state.

In the Powertech uranium mining procedure the SD Board of Minerals and Environment stated it has a “limited jurisdictional role in this matter especially where the principle of “dual regulation” would prevent the Board from acting.”  Powertech has argued in favor of such Board deference to other non-state agencies.  Powertech asserted the Board should consider the EPA’s actions as strong evidence that the proposed project water use is beneficial and in the public interest; and also argued the NRC’s license to Powertech is “compelling evidence” that Powertech’s proposed use of state waters is beneficial and in the public interest.  Nevertheless, South Dakota boards are required by established state policy and by statute to conserve groundwaters of the state and maintain the quality of groundwaters for present and future beneficial uses through the prevention of pollution and the control of water degradation.  These are considerations within the clear jurisdiction of South Dakota, its agencies and boards.

Let us look at some steps taken, or not taken, to protect groundwater in the area of the project.  First consider these comments by staff members of the U S Geological Survey given in 2009 paper at an international uranium symposium, “To date, no remediation of an ISR [in situ uranium mining] operation in the United States has successfully returned the aquifer to baseline conditions.”

Regionally, near the project site, four principal aquifers are used as major sources of water supply.  Several permits for use of water are pending before different agencies.  Two requested water-rights-withdrawal permits are pending before state boards.  The two water permit applications request the right to withdraw 8,500 and 551 gallons per minute. The Powertech application indicates most of the water withdrawn will be continuously reinjected as part of the mining process.  Shouldn’t the water quality of reinjected water be tested before it is reinjected?  It is unclear how much water is to be reinjected.  Should not such requirements be included before granting a permit approval? 

In its June 2012 Water Permit Application, Powertech acknowledged there are no aquifer baseline tests completed by the applicant at the project site.  Powertech argued that pre-licensing monitoring wells are not permitted until after a license is issued.  However, the NRC Licensing Board in 2012 in a separate mining application ruled that wells intended to collect background data or for background aquifer testing are permissible and are not considered the construction phase of a project.  Why should water and mining permits be granted without the benefit of the results of such tests?  As the reader will learn, South Dakota also has the authority to require this type of baseline aquifer testing before a permit is considered or granted.

The DENR recommended approval of Powertech’s general mining permit to the SD Board of Minerals and Environment.  As a part of its recommendations and conditions the DENR suggests that in the event there is a violation of ‘water quality standards’ Powertech should then be required to develop and submit a site-specific mitigation plan.  A contingency mitigation plan for possible water quality events should be a precondition to filing any large mining permit application. 

The filed Powertech water applications report that groundwater restoration or aquifer restoration will be performed under any NRC requirements.   Powertech will be required by its NRC license and federal regulations to restore groundwater quality to a) pre-operational baseline water quality, b) federal drinking water standards, or c) an alternate concentration limit approved by the NRC as protective of human health or the environment.  The NRC concluded, apparently without any baseline testing by Powertech on aquifers at the site, that the applicant’s proposed groundwater restoration methods will restore groundwater to ‘federal’ standards.  This is an indirect assurance concerning the protection of state waters.  Trusting too much to Big Brother invites one to become an agent of Big Brother.   At a minimum South Dakota should have requested baseline testing.  In addition, a legal mechanism known as an MOU (Memorandum of Understanding) allows a state such as South Dakota to take responsibility for regulation concerning groundwater protections. 

In a well-written legal brief by its attorneys, Powertech argued in 2013 that South Dakota does not have authority to regulate most aspects of uranium mining.  That position was not correct law then and is certainly in error today.  In 2019 the U S Supreme Court in a uranium mining case upheld a state mining law and ruled that federal law does not preempt state mining law.  Justice Gorsuch stated, “But Congress conspicuously chose to leave untouched the States’ historic authority over the regulation of mining activities on private lands within their borders.”  This places all the more focus on South Dakota to do the right thing. 

David Ganje practices law in the area of natural resources, environmental and commercial law with Ganje Law Office. His website is Lexenergy.net.

David L Ganje
Ganje Law Offices
Web: lexenergy.net

605 385 0330


Surface Water Rights & Surface Water Drainage, A Modern Problem

Posted on: November 11th, 2015
by David Ganje

Surface Water Rights and Surface Water Drainage, A Modern Problem

Surface Water drainage issues are longstanding issues in agricultural production areas, and have a significant effect on the agricultural economy of a state.  South Dakota, by way of example, has been plagued by surface water drainage problems for decades.  Surprisingly, there is little coherent or efficient planning to meet the challenge.  Instead, property owners and government agencies have witnessed debates, numerous court cases, and the failure of new legislation capable of addressing the issue.  The state has experimented and over the years implemented a smorgasbord of agencies with authority over water issues including the State Water Management Board, County Drainage Commission statutes, irrigation districts, water user districts, water project districts, water development districts, conservation districts, and watershed districts. The results are less than successful when one considers the state’s drainage problems.  There are benefits to water drainage, both environmentally and economically.  However, the road to effective water drainage law and policy remains elusive in South Dakota, partly due to the unwillingness of those in authority to exercise existing rights given to the state’s leaders.


Surface water drainage is defined as the depletion of water from a water-logged piece of land.  By draining off excess water, soil goes from saturated to unsaturated, allowing air to better move through the soil, making it healthier.  This can result in a decreased amount of runoff and topsoil loss with water drainage, also improving soil quality.  By making the soil healthier, crops are healthier, more abundant, and typically generate better profits.


Water drainage is beneficial environmentally as well as economically.  Studies done by North Dakota State University indicate that there is a 30-50% yield increase in fields that have added tile drainage systems.  This yield change increases revenue, as well as the quality of the land in general.


Despite the evidence that supports water drainage systems, dispute about the benefits remain, including the questions: How does one drain the water?  Where should it go?  And how much is too much?


A few Water Rights concepts, such as the Civil Law Rule, should be considered. The Civil Law Rule states that a lower estate is responsible for the water that naturally drains across it, and whatever trouble that may come with it – however, an upper estate cannot lawfully do anything to increase this burden.  This means that an upper landowner cannot add to the natural volume of water the lower landowner would naturally receive, or change the course of the water’s flow.  These principles have been demonstrated and applied in numerous court cases.


For example, in the 1909 South Dakota case of Boll v. Ostroot, in which the defendant dug a ditch to drain water onto the plaintiff’s lower lands, the court ruled that the defendant could not lawfully discharge water onto another’s land through an artificial channel.  In addition, it was also ruled that one could not change the natural course of the water’s natural drainage path.


More recently, the 1985 case of Gross v. Connecticut Mutual Life Insurance Co. held that discharge is allowed over, but not onto another’s land.  The principle is that drainage can flow but not in such a manner as to create a new water depository. The precedents and general guidelines set by these court cases are not enough to combat all of South Dakota’s water drainage issues.


Part of the problem lies in South Dakota’s 1985 water drainage statutes which offer guidelines such as when permits are needed, the application process, coordinating precise drainage areas, and so on. The law allows for both creating drainage plans and managing drainage controls.  While this may have been effective in theory, in practice it falls short.  For example, the manpower, data, and resources necessary to carry out all that the ordinance calls for are not widely available and are often given as the reasons for the failure of counties to administer the law.  The more accurate reason is that political leaders at the county level are reluctant to take the bull by the horns and ‘domesticate’ the water drainage issues. In addition, as of July 2012, only 18 out of 66 counties in South Dakota had a drainage ordinance in place, making it nearly impossible for the state as a whole to deal with all the complications that can arise.


With all the problems that water drainage and water drainage laws have brought up, what can be done to remedy and alleviate the situation?  Fortunately, there are many options for South Dakota.  To start, a minimum criteria needs to be established for drainage applications to act as a baseline for what is lawful.  Following that, more definitive criteria to evaluate these applications need to be made in order to best protect all parties involved.  Finally, a level of cooperation and consideration among all parties involved needs to be more actively employed.


It is evident that water drainage laws have caused hardships and issues in South Dakota for many generations.  However, by employing new standards and better understanding water drainage rights and tactics, South Dakota has the ability to overcome these hardships and improve the land.

Letter to the Editor: A South Dakota Water Lottery

Posted on: October 20th, 2014
by David Ganje

Letter to the Editor: A South Dakota Water Lottery

Posted Aberdeen American News, Farm Forum: Monday, October 13, 2014 9:08 am

by David Ganje

While it has yet to come to the attention of the national environmental and natural resources community, the South Dakota state legislature passed a first-in-the-nation law this year in the field of natural resources. The state will use a ‘lottery system’ for the issuance of certain state managed water permits. The water lottery system is combined with a moratorium on water use for identified water bodies managed by the state. Under current South Dakota law, all water within the state’s jurisdiction is property of the people of the state. The right to the use of water may be acquired by private parties and municipalities by a state-managed appropriation procedure. The state has been historically a first in time, first in right state when granting water use rights. South Dakota’s ‘water management’ jurisdiction does not however apply to Indian Country or on federal lands. Water use in South Dakota is authorized when the state Water Management Board grants a private, beneficial use of the state’s water resources. An example of a private use is an irrigation permit. A water use permit is issued either as a new water use or as a vested water right for an existing water use if it predates 1955.

The new water lottery system comes into play in situations where the state Water Board has determined that an existing groundwater source is ‘fully appropriated.’ A water source is fully appropriated when the state rules that no new or further access to the water should be granted because it would prejudice the ability of the water source to recharge to an acceptable level. The lottery system will not apply to open or unappropriated aquifers. The Water Board under the new legislation can accept water permit applications even for a fully appropriated aquifer. A 30 day application time period will also be set for a fully appropriated aquifer by public notice. The notice gives prospective applicants the right to apply under the lottery system. The applications are then placed in a lottery drawing system. The actual method for drawing successful applicants has not yet been implemented but will be announced in the next several weeks. The ‘winning’ applicants will then have to wait under the state’s five-year moratorium on approval of permits in those instances when the state has made a designation of a ‘fully appropriated aquifer.’

A lottery system for resource development permits has been used in the past, but never by a state for access to state managed water. The U.S. Bureau of Land Management used a lottery system for granting oil and gas leases until 1987 but has not used it since. The state, of course, does not call this new law a lottery system. I do. The new unchallenged law describes the lottery system as a procedure in which, “the board shall create a priority list using a random selection process to be determined by the board.” This new lottery system is an effort to cure problems in past experiences when an aquifer is placed in a moratorium. One cannot criticize the conceptual fairness of the new law. The statutes attempt to treat water permit applicants seeking access to a particular aquifer equally by using the “random selection process” in a moratorium scenario. The law itself has some challenges in its language as well as in its untested procedure. It is soon to be implemented by the state Water Board and the S.D. DENR. The new law is a unique effort by the state to deal with natural resources stewardship issues. In that regard the legislature should be applauded. Will the bar of reason support this brave new attempt at fairness? Time will tell.


Tags: Environmental Law, Infrastructure Security, Natural Resources Law, Water Law, Water Regulation, Water Rights, Water Systems Security

Illinois Association of American Water Works Recognizes Ganje’s Water Workshops

Posted on: September 19th, 2014
by David Ganje

Illinois Association of American Water Works Recognizes Ganje’s Water Workshops

The Illinois Section of the American Water Works Association (ISAWWA) has recognized David Ganje of Ganje Law Offices for his recent workshops given for the Association.  David Ganje recently presented two specialized workshops to the ISAWWA on the subjects of water law and water security. The Association wrote letters of appreciation to Mr. Ganje for the work and will use the presentations in future workshops.