State delays Andes-Wagner water projectCorps of Engineers plan to charge for Missouri River water muddies permit process.
By: Bob Mercer, Republic Capitol Bureau
PIERRE — Amid uncertainty about the federal government’s plan to start charging some users for surplus water taken from the Missouri River reservoirs, the South Dakota Board of Water Management delayed two big decisions Wednesday on permits for the Lake Andes-Wagner project.
A state permit earmarking 393,400 acre-feet of water from the Missouri River for future uses by the project in Brule, Buffalo, Charles Mix, Douglas and Bon Homme counties has been in place since 1969.
But the project remains stalled on the drawing board, and state fees must be paid as part of a standard review every seven years to keep the future-use permitting in place.
The expense for those state fees now has led to a split among local sponsors. The project could be allowed to voluntarily surrender the guarantee for about three-fourths of the water, while the remaining guarantee would be transferred to a different organization.
The elected board for the South Central Water Development District, based at Armour, recently voted to seek cancellation of the future-use permit coverage for about 297,400 acre-feet, rather than pay $24,845 to renew it for another seven years.
The remaining 96,000 acre-feet would transfer under a June 28 ownership agreement to the Lake Andes-Wagner irrigation district based at Wagner for use solely within Charles Mix County.
South Central’s vice chairman, Tom Glover, of Burke, told the state board Wednesday the South Central district is restricted in its ability to increase taxes to no more than 3 percent annually and, he said, the state future-use fee has quadrupled.
He said South Central’s board members believe they can make better use of the money than to continue paying to guarantee future use of water for a project that hasn’t made progress and still lacks federal authorization for the necessary early step of conducting surveys.
“We spent a lot of time debating this,” said Glover, a former state legislator.
He added: “We are very concerned about what the feds are trying to do.”
Two years ago, the U.S. Army Corps of Engineers stopped granting new easements across its shore lands for users to take water from the Missouri River reservoirs. Since then, the federal agency has developed a plan to start charging some users for water.
The corps plan is currently in the rule-making stage and is opposed by South Dakota’s governor and members of Congress.
State board member Jim Hutmacher, of Oacoma, said Wednesday that South Central’s requested cancellation should be deferred until the state board’s December meeting.
Hutmacher, a former legislator, said a delay would allow the South Central board to have two more monthly meetings for further discussion about whether giving up 1969 rights through a future-use permit is the right decision in light of the possible federal fees coming.
Leo Holzbauer, of Wagner, a state board member, is a leading advocate for the Lake Andes-Wagner project.
He raised questions Wednesday about how well the South Central board spread the word about its cancellation plan.
Holzbauer said there wasn’t a public notice.
He opined that many landowners who are taxpayers in the district might be surprised to learn that future-use rights for so much irrigation water would be lost with the cancellation.
His Lake Andes-Wagner organization, meanwhile, wants to be allowed to pay its renewal fee in installments. That fee would be about $8,200 for about 92,000 acre feet for seven years. State law says the amount should be paid in advance.
State board members and their legal counsel said South Dakota law doesn’t appear to provide authority to accept installment payments.
The state board deferred action on the renewal until next October so that the legal questions could be researched and possible remedies could be considered.
Garland Erbele, chief engineer for the state’s water-rights division, said the corps plan continues to evolve.
He said users would be allowed to take water from river reaches of the Missouri but the federal fees would apply to water taken from the big storage reservoirs.
Further complicating the federal fees structure is that federal Bureau of Reclamation water projects and federally authorized drinking-water systems, such as Mid-Dakota and WEB, wouldn’t have to pay the fees, while other systems such as the city of Mobridge and various rural pipelines would.
Erbele said the heart of the conflict is the belief by state governments along the river that they have the rights to the river’s natural flow while the federal government is claiming rights to surplus water held in the corps-controlled reservoirs.
“We think it’s a stupid proposal. There’s no common sense being applied here,” Erbele told the state board.
The federal fees don’t seem to apply to water that would be taken from the Missouri River reservoirs for irrigation purposes, according to Diane Best, a lawyer for the state Department of Environment and Natural Resources.
That led Hutmacher to suggest communities should designate certain amounts of water for irrigation purposes to water lawns.
Holzbauer said his priority for the Lake Andes-Wagner project is keeping the 1969 origination date of the first permit for it. That date puts the project in line for water ahead of users with later permit dates.
Glover said South Central’s concern is the lack of solid information about how the federal plan could affect existing future-use permits.
“It isn’t far enough along to know the exact parameters and a lot of it doesn’t make sense,” Best said.
State board member Tim Bjork, of Pierre, said the corps’ proposed definition of surplus water conflicts with the authorized uses that have been set in federal law for about 70 years.
“This could be in the courts for generations,” Bjork said.