SIOUX FALLS, S.D. (KELO) — A farmer who wants to build a new hog confinement for 300 hogs near Harrisburg would need to apply for a permit from the South Dakota Department of Natural Resources.

The farmer is also working with the Department of Agriculture on his feed and productivity plan for his new hog barn.

Under an executive order from Gov. Kristi Noem, the agency that promotes and assists agriculture development will merge with the agency that approves permits related to agriculture development.

The new agency would be called the Department of Agriculture and Natural Resources (DANR). If the Legislature does not reject the executive order issued on Jan. 19, the formalized budget would be effective July 1. The Legislature has 90 days from Jan. 19 to respond/act on the executive order.

The merger will have implications for South Dakota’s largest industry and its natural resources. The agriculture industry has a anual $20.9 billion impact on the state’s economy, according to the ag department.

Just what those implications and consequences could be depends on how the merger is viewed.

“We do have concerns regarding the merger,” said Travis Entenman, the executive manager of the Friends of the Big Sioux River. “Part of the DENR’s mission is to regulate different pollutants… So, having a large industry be regulated by the same entity that is supposed to watch and safeguard the state from pollutants there is a lot of concern there. Basically, it’s the polluter self-regulating itself.”

A merger could place too much emphasis on agriculture and in turn harm, natural resources, Entenman said.

But, to Scott VanderWal, the vice president of the South Dakota Farm Bureau, the merger would not be a conflict.

“Agriculture takes care of our natural resources, that’s one of our primary considerations” VanderWal said. “But agriculture also has to be economic viable. To have those people working in one department would create some synergies to where they would consider both sides all the time.”

Utlimately, those working in a merged department would have the goal to do the right thing, VanderWal said.

Yet, the two agencies do have missions that are different, said Sean Kammer, a law professor at the University of South Dakota.

The DENR’s mission is to protect public health and environment while the Department of Agriculture’s mission is to promote, protect and preserve agriculture, Kammer said. The two missions can overlap but they also can be in conflict.

“If you look at the proposed mission in the executive order…it takes those two missions and combines them but it doesn’t deal with the conflict, the very real conflict, not just the potential for conflict but already demonstrated conflict between those two interests,” Kammer said. ” It talks about protecting and promoting agriculture as South Dakota’s most vital industry. That’s first in the mission and then it talks about preserving natural resources and the environment through sound management.”

Thousands of cattle, pigs, poultry and acres

A billion dollar business means there are lots of acres and livestock involved.

South Dakota had 29,600 farm operators in 2019, according the U.S. Department of Agriculture Review of South Dakota. Those operators accounted for 43,200,000 acres of operation. The state has about 19 million acres of crop land and 23 million acres of pastures, according to the South Dakota Department of Agriculture.

As of Dec. 23, South Dakota had 449 permitted livestock operations, according to the DENR. Here’s the breakdown of the operations and how many livestock. 49 Mature Dairy Cattle – 150,050 head, 162 Beef and Other Cattle – 557,944 head, 64 Multi Animals – 3,684,040 head, 142 Swine – 780,916 head, 9 Poultry – 5,737,060 head,17 Livestock Auctions and 6 CAFOs located in another state with land application areas in South Dakota.

The adoption of some conservation farmer practices is an example of where agriculture and environmental concerns directly meet.

From 2012 to 2017, no-till farms and acres increased 4% and 7% , respectively, according to a study from the South Dakota State University Extension. The data is from the USDA’s agriculture survey which has been conducted every five years. There were 479,774 more acres of no till land in 2017 than in 2012 for a total of 7,656,188 acres. No till is a practice which uses minimum tillage before planting and after harvest to reduce soil loss and retain nutrients in the land.

Conservation tillage acres increased to about 4.3 million. During the same period, intensive tillage acres decreased from about 4 million acres to 2.6 million acres.

Conservation and no tillage acres and properly maintained feedlots and livestock operations can reduce pollutants such as nitrates, pesticides and E coli from entering watersheds, ground water and surface water in a state that already has water quality problems.

According to the DENR, 78% of the state’s rivers and streams are impaired and 91% of its lakes are impaired based on the bodies of water tested in the agency’s latest report. Those are rivers, streams and lakes the public fishes, swims, boats and uses in other ways throughout the year.

Entenmann said water quality and other natural resources could suffer under the proposed merger.

Can a merged agency balance priorities?

VanderWal said protecting natural resources and the work of farming must go “hand in hand.”

Rules that protect natural resources and provide guidelines for agriculture operations are needed but so is common sense, VanderWal said.

South Dakota has a history of common sense between the Department of Agriculture and DENR and a merged agency would ensure that would continue, he said.

“If you look at some states, there’s over regulation.” VanderWal said of oversight of agriculture operations. “An example, would be if you have a violation whether big rain event. and have some run off or something like that, there are cases where (state) come (s) in and they fine the producer and really carry a great big stick and penalize them.”

Over the past several years, South Dakota hasn’t worked that way but instead applies common sense to work with the producer to identify the problem and fix it, VanderWal said.

The verbage that’s been used by agency officials and Noem points to the state leaning to making agriculture the top priority for the merged agency, Entenman said.

“With this merger, we are fostering sustainable agriculture and conservation that we can pass on to our kids and grandkids,” Noem said in her Jan. 19 news release about her executive order. “This merger will simplify life for South Dakota’s agriculture producers by creating a one-stop shop in state government. It will also save taxpayers money by streamlining the state’s regulatory bodies, eliminating redundancies, and creating a better customer service experience for all.”

Hunter Roberts, current Secretary of Environment and Natural Resources and acting-Secretary of Agriculture, will serve as the cabinet secretary for DANR.

“Governor Noem has a tremendous vision for the next generation of agriculture, and we’re excited to see it through,” Roberts said in the release“I’m excited for the synergies that this merger will create.”

Kammer said the state’s constitution allows the governor to create the merger through an executive order. But there are some potential risks both in the function of the new agency and in potential exposure to lawsuit.

“When you have that (mixed missons) in a government entity at the very least there’s confusion within the agency as to what is their core mission, as to which of these win out. Where there is conflict, at the worst you have the potential for one part of that mission to be completely (consumed) in the other and to be minimized.”

If the DENR’s mission is minimized or worse, that means other oversight duties by the DENR will be reduced, Entenman said.

It also sets a precedent for South Dakota to not be moving forward with responses to climate change, droughts and floods, Entenman said.

VanderWal said the missions of both agencies would still be fulfilled under the merged agency.

VanderWal said the Farm Bureau wanted to make sure the agriculture industry wasn’t short changed with the merger before it endorsed the change.

“We obviously would not want the focus to get away (from) agriculture. Folks on the other side that are concerned the focus would be taken away from the natural resources side are justified as well,” VanderWal said. “It needs to be balanced and we need to have a synergistic approach from both sides.”

What about any future leadership, legal risks?

Entenman said the Department of Agriculture and DENR have a history of being understaffed and stretched thin. A merger may increase demands on staff and help tip the scale in favor of agriculture, Entenman said.

“Our worry is just because how prominent agriculture is to our economy and the language being used by state (officials now), I have a huge worry the DENR that end of the agency will get shortchanged and overlooked for preferential treatment of agriculture,” Entenman said.

If there are vacancies and any staff shortages, the merger should make it easier to fill any openings, VanderWal said. Also, the merger will create efficiencies for staff, VanderWal said.

Kammer said there is potential legal risk to the state if a merged agency causes easing of inspections in areas of oversight or easing of overall oversight, or if agriculture gets preferential treatment for example.

But there could also be leadership that favors the environment at the expense of agriculture, Kammer said.

Yet, he doesn’t see leadership favoring the environment in the current state political climate.

Although there are federal laws and requirements on agriculture and the environment, states do have leeway in how they are applied and enforced, Kammer said.

An extreme example of how an agency failed in its oversight is the Deep Water Horizon oil spill of 2010, Kammer said. The analysis of the accidental 200 million gallon oil spill showed that the agency charged with administering the oil development on the outer continental shelf showed failed in its oversight of protection of workers and protection of the environment, he said.

The agency had three tasks: development outer continental shelf for oil and gas, to ensure fair return in revenue for the American people and third, to ensure safety protection, the safety of workers, and environmental protection, Kammer said. The safety of workers and the protection of the environment “fell to the wayside” in favor of development and revenue return, Kammer said.

When there is a legal challenge, court officials tend to defer to the experts in the agencies, Kammer said.