Cool, Clear Water…Maybe

by Robin EH. Bagley

While uranium mining and the groundwater associated with it aren’t the focus of this year’ legislative session, one only has to read back through this blog to see the lack of protection the state affords our water (ground and surface). The issue of in-situ leach uranium mining has been lurking around South Dakota for several years now, and happily, the permits have not been granted.

This is not due to our state government standing up and telling Azarga (formerly Powertech) a clear, resounding “NO!” In fact, the state has been quite welcoming and helpfully refused to passed groundwater safety bills and even a resolution stating how important water is to the welfare of the state and its people. The state was ready to roll out the welcome mat.

No, the reason we have prevented the mining thus far is due to tireless on-the-ground community organizing. Passionate people who have stood their ground in that water is life, and that uranium mining is a direct and permanent threat to it.

So, knowing that the state hasn’t done much to protect our groundwater, it was with interest I read a recent article in my local newspaper. In the January 6, 2016 edition of the Custer County Chronicle there was an article about Custer’s water supply being in danger of contamination from nitrates, arsenic and total coliform bacteria. The water study was undertaken by the City of Custer and the SD School of Mines & Technology, with data incorporated from the US Geological Survey. The nitrates and total coliform bacteria are considered to be human caused (ie: septic tanks and livestock) and could be mitigated if the point sources are found. The arsenic is naturally occurring in this region, so it’s always an issue that bears watching with groundwater. Arsenic is naturally occurring, it’s also a carcinogen.

What was interesting about this article was that it addressed how groundwater moves in this region, and how difficult that is to track because of the complexity of the geology. “The study showed areas of the aquifer with large fractures or structural features are vulnerable to contaminant transport….That means contaminants in groundwater have the potential to migrate through the City of Custer and beyond” (Custer County Chronicle, 1/6/2016).

Let’s be clear, the contaminants addressed in this testing are not the same as the contaminants from uranium mining (well, arsenic is still a concern either way). However, the point is that the Black Hills geology is very complex and that no one really understands where underground contaminants will go or how far they will travel.

The newspaper quotes the report delivered to the City: “The variability and complexity of the Precambrian fractured crystalline aquifer at Custer and throughout the entire Black Hills, necessitates a deeper understanding and commitment to protecting the water resources that many people depend on,” (Custer County Chronicle, 1/6/2016).

That’s pretty clear.

It is official: protecting our ground water is up to us

We have a problem in this state. There is no other way to open this blog post.

We have three fully allocated aquifers East River, where no more water rights can be granted. Seven more aquifers are close. We have a proposal West River for a uranium mine which is asking for the rights to 13,000 acre feet of water from the Inyan Kara aquifer. If that goes through, we’ll see more applications for uranium mines, and they’ll need just as much – if not more – water from the same aquifers. We have frac sand mine proposals coming through, mining which is extremely water intensive, and the only disposal method of the “sludge” left over after they wash the sand is to dump it back into the hole they just dug. Think mountaintop removal in the Black Hills, for sand.

We have a problem in this state, and that problem is our long-term ground water management. Or, more properly put, the lack thereof.

Yet the elected officials of this state seem to be blinded to that reality. That blindness came through in picture-perfect clear form last Thursday when the Senate Agriculture and Natural Resources Committee heard HCR 1025, the resolution which would have highlighted the simple fact that we need to deal with this problem, and deal with it now. The short story is that the bill was tabled at the end of the day. The long story, however, is far more interesting.

The hearing opened with testimony by the resolution’s sponsor, Rep. Troy Heinert, D-Mission.  His message was simple: this resolution is about the water, and opponents want you to read between the lines and bring smoke-and-mirror tactics to try to get you to vote against this, but don’t. Read the lines, and pass this through. Several others spoke for the resolution, including Rep. Kevin Killer, D-Pine Ridge; Jay Gilbertson, of the East Dakota Water District; Sen. Billie Sutton, D-Burke, and the prime sponsor in the Senate;  Paul Lepisto, with the Izaak Walton League; and yours truly, Sabrina King with Dakota Rural Action.

Our message was clear: this is an issue, this is important to people across this state, and this needs to pass. Our members have spoken out loudly and strongly in favor of both this resolution and in favor of better ground water management; Rick Grosek, with Bear Butte Gardens, put it best:

I’m very involved in my community.  I communicate with and network with many other agriculture producers, both in the Black Hills area and across the state.  I am among many, many other people who are very concerned about water – both quality and quantity.  I am not alone in my viewpoint.

Then it came time for opponent testimony, opened with the outrageous and what should be against-the-rules testimony by Larry Mann. Mann has been, for quite some time, one of the registered lobbyists for Powertech (soon to be Azarga). They actively lobbied against the resolution, yet when Mann got up to talk, he made quite the point that his badge was off and he was speaking for himself. We call BS, and it should have been called out in committee that when you’re hired by a client and you’re testifying on a bill in which your client has a direct interest, you’d better have your badge on.

But he wasn’t called out, and he spoke on how in 1989 the legislature did a shoring-up of all South Dakota’s environmental laws, so really we’re fine, we don’t need to do so again. But here’s the thing, Mann: 1989 was 25 years ago. That’s a long, long time in the realm of technology and ground water.

Then Mark Hollenbeck got up, and was at least honest in keeping his Powertech Lobbyist badge on. His testimony was simple, and basically alluded to the fact that Powertech worried this resolution would be waved about in the future. Translation: Powertech is worried that if the legislature says anything good about ground water, it will be bad for Powertech. What does that suggest, do you think?

Final opponent testimony was given by Angela Ehlers, with the SD Association of Conservation Districts. She said the SDACD was against the resolution. (But were they really, Angela? Because the Fall River County Conservation District was for it, just click here: HCS 1025. So it seems less that conservation districts were against it, and more that you were.) Ehlers also said the word “legitimate” isn’t in statute, so should be taken out of the resolution. Again, not true; the word “legitimate” appears twice in 34A-2-1, the statute referenced in the resolution. And with that last spurt of untruth, testimony was closed.

So this, then, is where things got weird. The word “legitimate” was amended out of the resolution, making it contrary to what is in statute. Then the word “mining” was amended into the resolution, again making it contrary to statute and making mining a more prominent and important use of water than it should be. And this is where the people of South Dakota start to disagree with their elected leaders. See, we don’t think mining is the end-all-be-all of economic development. And in fact, it is a well-documented phenomenon that areas reliant on resource extraction are less well off than areas with more sensible, long-term development. So no: mining is not more important than other uses, nor should it be.

Then the vote came to pass it through, and despite these changes, only the Democrats voted for the resolution, with all committee Republicans voting against it. Really, water shouldn’t be a partisan issue, but somehow it is.

And then, things got really weird. Clearly having no intention to support the resolution at any point, Sen. Larry Rhoden, R-Union Center, had been working behind the scenes with Sen. Dan Lederman, R-Dakota Dunes, to “hog house” HCR 1025 and turn it into an anti-water, anti-conservation, horrendous resolution, which you can click here to read: DRA 2.

Breaking all convention, Lederman was allowed to get up and talk about why he thought it was appropriate to take a pro-water resolution and turn it on its head. He’s against the proposed Niobrera Confluence and Ponca Bluffs Conservation Areas, and he wanted the legislature to validate his no-protection opinion.

Since all testimony time was over, there wasn’t an opportunity for a real hearing on this, but Committee Chair Krebs at least let Rep. Heinert get up to give his two cents on the new resolution language. His response? “This is the biggest slap in the face I’ve had since I got up here.”

And it was a slap in the face to everyone who had worked so hard on this resolution, and a slap in the face to all South Dakotans who believe in protection our water, and a slap in the face to anyone who believes in the proposed conservation plan. There was nothing appropriate or good about Lederman’s resolution, nor about how Rhoden brought it to the table.

It was clear, at this point, the hearing had become a circus. The motion to amend by Rhoden was ignored, and was substituted by a motion to table the resolution as-is was made and passed. It was a sham, robbing people of their opportunity to make their case for ground water protection, and the way it was handled in committee was beyond inappropriate.

So the question is, then, what is next? Where do you go when elected leaders will not even acknowledge a huge problem? What happens when the state keeps barreling forward with really bad proposals and without a thought in the world of where we’ll be in 20 years?

You keep fighting, is what you do. We have on record the opinion of our elected leaders. And we hold them to task for it. And we come back next year with a stronger coalition and a stronger voice, because you don’t let something like this go. We keep working to stop this absurd uranium mine proposal. We keep working to stop insane proposals for CAFO’s and factory production East River. We keep working with farmers and ranchers to find more sustainable ways of production.

We shouldn’t have to fight. We shouldn’t have to work this hard to protect our water. But the other side does, so we’ll keep fighting for our right to clean, abundant water. And we’ll keep fighting for a state with its priorities straight. And we’ll keep fighting until we get it.

HB 1193 doesn’t pass

Our water bill (HB 1193) went in front of the House Agriculture and Natural Resources Committee this week, with some testimony Tuesday and the final testimony and vote Thursday. Several Dakota Rural Action members came out Monday to lobby the bill directly to legislators before the hearing, and to speak on Tuesday. Unfortunately, on Thursday the train got derailed, and our bill was sent to the 41st legislative day (which doesn’t exist), effectively killing our efforts to get some protections in the law for our water.

While this is a setback for groundwater protection in our state, we will keep going. HB 1193 would have required baseline water quality restoration similar to that required in Wyoming, and would have brought regulations for underground mining operations more in line with those already set for above-ground mines.

We have an entire chapter in state law on mined land reclamation. It is chapter 45-6B and the requirements are extensive. 45-6B was written originally in 1982 when gold mining was becoming a more prominent industry and the legislature at that time found it prudent to ensure any surface mining operation would not damage the land. Pages of guidelines and requirements about how the land should be restored after a mining operation is done are on the books because we recognize the value of our land. But we’re now looking at a new kind of mining, mining done below ground in the aquifers using our water. Because this is a new process we don’t have the same kinds of regulations for below ground mining as we do for above ground mining. But why shouldn’t we? We require land to be reclaimed. Why wouldn’t we require the water to be reclaimed?

“This bill would have protected us from the potentially harmful activities of foreign corporations,” says Dr. Lilias Jarding of Rapid City, Black Hills Chapter member and West River at large board representative for DRA. “South Dakota needs protection from its state government. The state has missed a chance here.”

Protect Our Water podcast is up – download now!

Download it now: Protect Our Water, VOTE YES on HB 1193.

HB 1193 is up for a quick hearing this Tuesday, February 11. In an on-going effort to ensure South Dakota’s groundwater quality isn’t permanently degraded, we’re doing everything we can to get the word out about what the Dewey-Burdock Project really promises for South Dakota. And each day, it becomes more and more clear it promises pennies on the dollar and a huge public risk – all for the private profit of a few foreign investors.

You can download our podcast, which explains a bit more about our bill and a lot more about the reality of what South Dakota will reap for its risk, right here: Protect Our Water, VOTE YES on HB 1193.

The hearing is at 7:45am CT in room 464 of the Capitol building. Contact us (action@dakotarural.org) if you are interested in coming, and let’s get this done, South Dakota. Our water is too important to leave to the wolves.

Tall tales of Powertech and the agency that supports them

At the beginning of each session (or close to it, anyway), each state department presents about their year to their corresponding legislative committee. This morning, the House and Senate Agriculture and Natural Resources heard from the Department of Environment and Natural Resources. Many of our members were there to listen to the presentation, and it is a good thing they were. Because the spin on the proposed Dewey-Burdoch Project continues.

This past year, two weeks were spent in hearings regarding the water and mining permits requested by Powertech. All things considered, it was a monumental disaster. The state doesn’t know what it can and cannot regulate, thanks to Powertech’s own hand in suspending the administrative rules regarding in situ leach uranium mines. We and our allies have said all along it didn’t make sense to have the state permit hearings until a) the NRC and EPA went through their process, and b) the state figured out what, if anything, they are actually able to oversee regarding this project.

When both the Water Management Board and the Board of Minerals and Environment held meetings to schedule the dates for the permit hearings, many people wrote letters and spoke in favor of putting off the permit hearings. Powertech’s lawyer was on hand, arguing for the earliest hearings possible, urging each board to take quick action. Every time – every single time – the subject was brought up, Powertech fought tooth and nail to push the permitting process through as quickly as possible. They said time and again they expected to have their permits by the end of 2013.

When the Board of Minerals and Environment, after the first week of hearings, asked parties to submit briefs on whether the permit hearings should be continued, everyone except Powertech said they should be put off.

The Water Board, in light of the action taken by their partner board, asked the same question. Briefs were again submitted, and seeing the light on the wall, Powertech flip-flopped and agreed with what everyone else had been saying all along: these hearings should be put off.

But that’s not how the DENR sees it, apparently. Secretary Pirner, in his presentation, said, “Powertech petitioned the water management board to do the same thing,” meaning the same thing as the Minerals Board and put off the hearings. No mention of the on-going, extensive, reasoned requests from lawyers and citizens for almost six months requesting the hearings be put off. No, according to Pirner, the hearings were put off because “Powertech requested it.”

This says two things. First, the DENR will do everything in its power to make Powertech look good. And second, apparently what hundreds of citizens, two lawyers, and thousands around the country and world say, doesn’t matter. Only what Powertech says matters. That says a great deal about the DENR’s priorities.

And it doesn’t say anything good.

Three days in – how is Pierre?

As with all sessions, things in Pierre have started slow. People getting reoriented, reacquainted, and for those lucky seven legislators nominated by the Governor, getting their feet into the legislative process for the first time.

We’ve been lucky to have a couple members out here this week talking to legislators about the distributed generation bill, and doing an incredibly good job. There have been moments of discouragement, of course; legislators immediately assume we’re talking about net metering, and when citizens are up against around 15-20 paid lobbyists for the other side, it is a bit of an uphill battle. But we’re making progress.

Support for our raw milk producers continues to be immense. In the Governor’s State of the State address, the most emphatic statement he made (with emphasis) was, “I don’t like over-regulation.” We intend to take him up on that and keep him to his word, and legislators seem to be supportive of going back to a sensible level of regulation for raw milk producers who are selling directly to consumers.

There have been mumblings about uranium, of course, and I think it is an issue people are wary of, understandably. But it is also clear legislators are far more understanding of what the real situation is on the ground, thanks to significant work by our members over the last year. We are, as always, hopeful we’ll be able to protect our water and the Black Hills.

There are some other interesting things coming to the table about water management, ag land taxation, and of course the perennial issue of non-meandered waters. We’ll keep you posted on all these issues as they come up, and don’t forget our lobby days are next week Wednesday and Thursday – so come out to Pierre and meet your legislators! Send us an email if you’re interested – sabrina @ dakotarural . org.

Countdown to Pierre – Uranium mining

It really isn’t a difficult question: do you think water should be protected from overuse and contamination? The answer for everyone should be, “absolutely.”

Over the course of the past year, South Dakota has seen a great deal of activity around the Powertech in situ uranium mining project. We’ve followed the process quite thoroughly on this blog; rather than repeat what we have put up here already, we’d like to focus on what is ahead.

Our priorities this year will be reinstating state control over uranium mining and protecting our water and our land from contamination. There are some significant tweaks between what we’ll be bringing this year and what we brought last year. And, this time around, we have a lot more information about what in situ uranium mining is really all about.

Kara Hagen, owner of the FlatIron Historic Sandstone Inn in Hot Springs and DRA member, urges people to take a stand. “If we don’t take a stand now, then when?” asks Hagen, “When it’s too late? Are you willing to take any chances or risk the future of the Black Hills and the purity and supply of our water?”

For example: there has been some public dispute about how much water Powertech proposes to use – and by association, the amount of water any other company would have to use were they to take up such a proposal. The absolute fact of the matter is Powertech is requesting the right to 13,710 acre-feet of water per year from the Inyan Kara Aquifer. It is on page one of their water rights application report. Powertech likes to say they’re only going to use 272 acre-feet per year, but when it comes to water rights, that 13,710 acre feet they own can’t be used by anyone else. It’s off the books. That matters.

“We have enough uranium resources to meet the United States’ needs into the 2020’s,” says Clay Uptain, President of the Black Hills Chapter of Dakota Rural Action. “We don’t need more uranium here, so it’s logical that uranium mined here would end up somewhere else. We would be left with contaminated water, while a Chinese company could gain the profits from the mining. I don’t want to see this happen.”

What has also become clear is South Dakota made a mistake back in 2010 when they passed SB 158, tolling our rules until South Dakota becomes an agreement state. Huge mistake – and it shows. Both the Board of Minerals and Environment and the Water Management Board were confused about what their role in this process really is, and there are conflicting understandings about what the state can and cannot regulate at this point in time. It is crazy to think South Dakota wouldn’t have control over its own territory, and considering in Wyoming it would take $4.5 million and 6 years to get primacy, we can’t wait for the state to put those rules back into effect.

Protecting our water, land, agriculture, tourism, and people is actually

Mining permit hearings continued – NO MINING PERMIT THIS YEAR

The South Dakota Board of Minerals and Environment has issued an order continuing (putting off, tabling, however you like to say it in non-lawerspeak) until after all other permits have been granted. In effect, this means there will be no large scale mining permit issued this year to Powertech!

The order states, “The Hearing Chair has reviewed the briefs and considered the statutory construction of SDCL 45-6B in total to determine whether the Board of Minerals and Environment (BME) is further able to fully consider the grant or denial of the permit without waiting for the other agencies and boards of the local, state and federal government to first rule on the licenses or permits within their respective jurisdictions. The failure of any of those other agencies or boards to grant their licenses, permits or other approvals may render a predetermination of the BME on the permit moot or potentially in conflict.”

SO – we have time. We have time to put proper protections in place. We have time to show how this would be devastating to our water, our land, and our people. And we have time to ensure our interests are not sacrificed for Chinese investors – or anyone else’s, for that matter.

Carry on, my friends, and to your good health!

Water Rights, Day Two

First, as a note, you can listen to the hearing recording here, and it will be posted at the end of each day: http://denr.sd.gov/powertech_wmb.aspx#Audio1

We continue with “B” invervenors today, people who want to make statements under oath and who can be cross-examined, but who are not “A” full party intervenors who will make a full case. Because for this permit hearing all “A” intervenors can cross examine “B” intervenors, this process is taking a surprising amount of time.

I have to give credit to Everett Hoyt who just reamed Powertech lawyer Max Main who has been “lawyering” B invervenors the entire morning. Mr. Hoyt expressed his desire to see the public be able to give their testimony in the way they know best how, that people are citizens and amateurs who are trying to make their case. It was the exact appropriate response to having citizens interrupted every five seconds, having every single question objected to. I cannot express how much I appreciate this – citizens have the right to speak and make their case without being shut down by Powertech’s lawyer.

Max Main responded he has been “trying to keep it under control some.” Problem is, that’s not his job. His job isn’t to keep the hearing under control. That is the role of the board. And they did just that, just now.

Keep the faith, folks, and we’ll see you all tomorrow.

Uranium, water, and the future of the Black Hills

Today marks the beginning of the water permit hearings for the proposed Dewey-Burdock Project, Powertech’s proposed uranium mine in the southern Black Hills here in South Dakota. You can read the water rights permit applications here, the groundwater discharge permit application here, and the consolidated case webpage here.

There are so many problems with this proposed mine, it is hard to pinpoint just one major issue. But the amount of water being requested by Powertech might just qualify.

There is a bit of a back-and-forth between Powertech spokespeople and opponents about the amount of water the company is really asking to use. Powertech likes to say they’re only going to use as much water as you can drain from your water hose in a day. Opponents point to the amount of water Powertech is asking for in their permit applications – 8,500 gallons per minute from the Inyan Kara aquifer, and 550 gallons per minute from the Madison Aquifer. This amounts to a grand total of 14,599.4 acre feet of water per year.

For some comparison, according to the USGS, annual recharge to all bedrock aquifers in the entire Black Hills region is 252,000 acre feet per year. Of that amount, 84% is put back into the Madison and Minnelusa Aquifers, about 211,448 acre feet per year. That leaves about 40,551 acre feet per year going back into the Inyan Kara, Minnekahta, and Deadwood formations. Note, again, this is in the entire Black Hills Region.

Of the amount Powertech is being asked to permit for, just over 13,700 acre feet per year is being asked for from the Inyan Kara aquifer. Regardless of what Powertech says, this is the amount Powertech is requesting a permit for. This is the amount of water they want the state of South Dakota to give them.

According to that same USGS report, the aquifer recharge rate for the Inyan Kara Aquifer in the entire region is 11,600 acre feet per year, with 1,400 of that already permitted to other users.

Do the math. Powertech is asking for 13,700 acre feet of water per year from the Inyan Kara. The amount available, according to the USGS, is 10,200. And Powertech would only be working in a corner of the Hills, so when you really think about it, the proposal is, simply put, absolutely insane. There is no other way of seeing this.

http://geology.sdsmt.edu/docs/76617/