State board faces decision on letting Keystone XL pipeline take South Dakota water

Capitol News Bureau
KELO Keystone Pipeline

PIERRE, S.D. (KELO) — The state government panel that decides who in South Dakota gets to use the public’s water will decide next week when to hold a hearing on whether the Keystone XL project should be allowed to draw from multiple sites in five western counties.

TC Energy, formerly known as TransCanada, wants approval from the South Dakota Water Management Board to divert water at various points along the proposed construction route for the Keystone XL crude-oil pipeline the company intends to build from Alberta to Nebraska.

State Department of Environment and Natural Resources records show Keystone XL has applied for multiple diversion points:

Several spots along the Cheyenne River about 36 miles south of Faith in Meade and Pennington counties;

Several places along the White River 14 miles south and six miles west of Presho in Lyman and Tripp counties; and

Several more approximately 2.5 miles east of Midland in Haakon County.

Several other rural landowners have applied to use water from their existing wells as backup sources for work camps they plan to host.

One is from Wink Cattle Co. in Tripp, Meade, Haakon and Harding counties in South Dakota and Dawson and Fallon counties in Montana. The principal is Dean Wink, a Republican former state lawmaker from Howes who retired in 2016 as speaker of the South Dakota House of Representatives.

The second application is from Tom and Lori Wilson for camps planned in Tripp, Meade and Haakon counties in South Dakota and in Dawson and Fallon counties in Montana.

The state board has scheduled a 1 p.m. CT Wednesday, July 17, start for discussion of when the hearing should be. The board reserved July 18 for additional time if necessary. The meeting is in room 414 of the state Capitol in Pierre.

The only doors at the Capitol that allow public entry to the building are on the north side. The board’s letters to participants encourage people planning to attend the hearing to use the north parking lot and enter through the north doors.

The board’s chairman is another former state lawmaker, well-driller Jim Hutmacher of Oacoma. He led the Senate Democratic caucus from 1999 through 2002, placed third in a four-way Democratic primary for governor in 2002 and later lobbied for small-enrollment school districts.

The board also must set dates by which the parties and intervenors must disclose names and contact information for witnesses and set a date by which the parties and intervenors must provide a list of exhibits.

On the board’s plate for decisions as well are four orders that one of its members, lawyer Rodney Freeman of Huron, in his official role as prehearing officer, reached recently in response to motions filed by different parties in the case:

Wink Cattle Co. can’t preclude consideration of implied water rights. The Yankton Sioux Tribe contested the attempt;

The Wilson also can’t preclude consideration of implied water rights. The Yankton Sioux Tribe also contested their attempt; and

TransCanada can’t preclude consideration of tribal land issues and treaty rights and of implied water rights. Elizabeth Lone Eagle, Mniwiwakan Nakicijinpi, Great Plains Tribal Water Alliance, Rosebud Sioux Tribe and Yankton Sioux Tribe challenged on one or both.

Freeman also decided TransCanada, Wink Cattle Company and the Wilsons can’t preclude evidence about the merits of the Keystone XL pipeline. He wrote:

“The meaning of ‘public interest’ remains undefined by statute and when deciding what is in the public interest, the board has an un-delineated and therefore broad range of factors available for consideration when granting or denying water permit applications. This broad range (of) factors could include the health, safety, and general welfare of the people of South Dakota among any number of other considerations.”

Freeman later added: “Evidence on whether the appropriation of water for the Keystone XL pipeline project is consistent with the public interest and the public trust is relevant.”

He also denied the pipeline’s attempt to set a narrow standard for who could participate. The company’s lawyers wanted Great Plains Tribal Water Alliance excluded for lack of a financial stake in the matter.

Freeman wrote: “Clearly the Legislature intended for the public to be heard on the issue of whether the proposed appropriation of water was in the public’s interest; and requiring the board to serve as a gate keeper to exclude those that do not have a pecuniary interest cuts against that legislative intent.”

But Freeman also decided Elizabeth Lone Eagle was wrong in her argument that the state department must confer with tribes. He said it was a policy that didn’t require specific action.

According to the state Public Utilities Commission, “Keystone XL is a proposed 313-mile crude oil pipeline that will cross portions of Harding, Butte, Perkins, Meade, Pennington, Haakon, Jones, Lyman and Tripp counties. The proposed project also includes seven pump stations to be located in Harding, Meade, Haakon, Jones and Tripp counties. The plans specify two pump stations each in Harding and Tripp counties.”

That area was officially recognized as the Great Sioux Nation at the start of the Dakota Territory era. But the land starting at the east bank of the Missouri River was later carved into smaller, individual reservations while much of what became western South Dakota was opened to individual land ownership.

Keystone XL as currently planned doesn’t cross any reservation land, according to project officials.

Freeman also has denied the Yankton Sioux Tribe’s request for a state environmental impact statement. He said a federal EIS has been conducted and the state EIS would reach beyond what the water board must consider.

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