PIERRE – Despite tribal officials’ appeals, the House Agriculture and Natural Resources Committee on Feb. 21 squelched two bills by Lakota lawmakers that would have increased native and public participation in water-use decisions.
HB 1239 would have required a state hearing on a temporary water permit application when a tribe or local government requested it. HB 1240 would have assured that a hearing on a permanent water permit application be held in the affected area if a county or municipal authority requested it there.
The prime sponsor was Rep. Peri Pourier, a Democrat from Pine Ridge Village, who was elected for the first time this year by voters in Dist. 27.
“If we are to have meaningful safeguards, we must let the people have a hearing allowing due process,” Pourier stated in opening comments at the committee meeting. “It makes a mark toward transparency in the most vital resource that we have.”
Co-sponsors of the bill were Shawn Bordeaux, Steven D. McCleerey, Jamie Smith, and Kelly Sullivan.
Currently, the state Department of Environment and Natural Resources has jurisdiction over water permits. The law does not require the DENR to hold a hearing on temporary water use permit applications. Nor does it require that the agency conduct hearings in an affected area on permanent water-use permits.
Oglala Sioux Tribal President Julian Bear Runner said the bills would guard against abuses “for projects such as drilling or mining.” In a letter read to the committee by OST Water Resource Division veteran Reno Red Cloud, Bear Runner said:
“Our environmental and cultural resource preservation concerns often do not match with the capital interests that require water. We as Lakota value and respect our water as one of our most important medicines, but it is also a living being in motion and sacred [possessing] powers to help sustain all life.”
Citing Constitutional treaty law, he added, “For too long, as a sovereign tribal nation far older than the state of South Dakota itself, we have been excluded in these types of processes for water permits.
“As well as too long we have been viewed by the state as the same status as a local government, and we continue to reject this lower status,” he stated.
Red Cloud submitted an Oglala Sioux Tribal Council resolution supporting both bills. Pourier submitted a Pennington County Board of Commissioners resolution supporting them.
Doug Crow Ghost, chairman of the Great Plains Tribal Water Alliance Board of Directors, informed state lawmakers of “widespread support amongst the tribes in light of large-scale drilling and construction projects that are getting underway in South Dakota.”
The alliance advises and advocates on behalf of the 29 Missouri River watershed tribes. They are faced with foreign companies using temporary water permits for exploration drilling of gold and uranium.
Reminding legislators that South Dakota and the nine overlapping Indian reservations rely on tourism industry more than on mining industry, he said, “Something is wrong if foreign companies [proceed] without the local community that relies on tourism dollars to even be heard,” he said.
“As Native Americans, we want our voices to be heard,” he said. “This is particularly important to tribes, whose concerns have rarely been addressed.”
Remi Bald Eagle, a traditional Miniconjou religious practitioner of the Cheyenne River Sioux Tribe, noted the Winters Doctrine reserves prior water rights for the tribes, something the state regulators overlook.
In addition, state law recognizes that drinking water and domestic uses are higher purposes than industry and mining, he said.
The Cheyenne River Sioux Tribe was forced to join in cleanup of the toxic Superfund site created by upstream arsenic and heavy metal pollution from the former Homestake gold mine, he recalled.
DENR Water Rights Program Chief Engineer Jeanne Goodman countered that her agency recommends temporary mining exploration water permits be extended no more than a year, and mining requires permanent water permits, which in turn require public hearings.
She noted that the bills don’t provide for costs of live internet feeds if hearings are held in locales near projects instead of in the capital where transmission facilities are established.
Most temporary water permit applications are for road and bridge construction. The state’s “businessfriendly approach” expedites them in about two days, which is important with the short construction season mandated by weather conditions, she added.
The process “has worked well for years. It does what it is supposed to do,” she said. “Do not let temporary water permits become a de facto land-use permit,” she warned.
Bolstering her viewpoints were Bill Nevin of the South Dakota Department of Transportation, Deb Mortenson of the Associated General Contractors of South Dakota, Yvonne Taylor of the South Dakota Municipal League, Angela Ehlers, of South Dakota Association of Conservation Districts, Brenda Forman of the South Dakota Association of Cooperatives, and Michael Held of the South Dakota Farm Bureau Federation.
Legislators expressed agreement with the concept of more public involvement but faulted the bills for lack of specifics to protect non-controversial building projects from delays.
“I agree that local control is important,” said Dist. 35 Rep. Tina Mulally, a new Republican House member from Rapid City. “However, this bill seems to be a little bit too broad for me. It could affect all those roads. I’d much rather see it nailed down to your specific requests in the drilling areas.”
In the 2018 legislative session, Lakota Democratic Rep. Shawn Bordeaux, currently an incumbent from Mission in Dist. 26a, introduced a bill that would have narrowed public water permit hearings to mining interests, and it was defeated.
(Contact Talli Nauman at firstname.lastname@example.org)