State government in South Dakota takes a range of approaches to public involvement in making decisions.
The Public Utilities Commission is perhaps the most inclusive, with a person on staff assigned specifically to receive complaints, and allowing anyone with a direct interest to intervene in cases, and going so far as hiring outside experts for some of its permitting cases and, of late, requiring projects to pay for compliance monitors.
At the other extreme is the state’s elections office. Secretary of State Shantel Krebs is trying to address the lack of clarity regarding enforcement of state election laws. As we’ve seen in recent years, no one seems certain how, or even whether, Krebs or state Attorney General Marty Jackley is supposed to handle allegations of election law violations. Nothing was resolved this year on the complaint from Janette McIntyre against Rep. Jeff Partridge in their Republican primary battle for the nomination to a Rapid City seat in the state Senate. Two years ago, the attorney general didn’t prosecute Annette Bosworth regarding fraud on petition signatures until after the Republican primary for the U.S. Senate nomination. Nor is a campaign finance report ever audited.
Then there are the permitting and funding boards associated with the state Deparment of Environment and Natural Resources. At times the agency faces difficulties recruiting new staff for a variety of reasons. The staff members often are in a squeeze, too: Assigned to enforce rules and laws to protect South Dakota’s environment while at the same time trying to stand aside in favor of economic development. DENR doesn’t have a public advocate’s office.
All of this comes to mind this week for several reasons. One is the recent death of Dick Fort from Lead. For decades he questioned the Black Hills mining permits and regulations. The second is a hearing that began Tuesday. DENR’s feedlot permitting program is proposing updates to its general permit for concentrated animal feeding operations, known as CAFOs or more generally as feedlots.
Sitting in judgment is Steve Pirner, who is secretary of environment and natural resources in the Daugaard administration. His DENR employees are offering the revisions. Questioning the proposals is a small group of people and Dakota Rural Action, the only citizens organization left in South Dakota that routinely takes the side of protecting the environment.
Watching lawyer Kelsea Sutton grind through cross-examination of two DENR staff members Tuesday was remindful of how many others, whether lawyers or not, had served in that same role of challenger since the 1980s and the boom of surface mining for gold in the Black Hills. Dick Fort, Gary Heckenlaible, Donald Pay, lawyer Patrick Duffy, Curt Hohn, Paul Blackburn, Paul Seamans and many others tried to stand up for what they thought was right.
If they ever prevailed, the victory has slipped from memory. There was a warning about acid mine drainage that unfortunately came true at the Brohm gold mining site. But when the mining proved the warning right, the environmental-protection side in turn was able to block the company’s plan to take neutralizing rock from U.S. Forest Service land adjacent to the mine. The company threw up its hands in bankruptcy. Now Brohm is a federal Superfund site that requires monitoring for many years to come.
The PUC meanwhile has a one-year limit on the time it will take to approve or reject a permit. That leaves a sense of preordained result. The one-year limit also doesn’t provide enough time, we’ve learned, to conduct an environmental assessment or impact statement, or to always get federal reviews adequately accomplished.
As Kelsea Sutton makes Dakota Rural Action’s case today on the feedlot permit, one of her lines of questioning will try to continue to show DENR was biased for the livestock and poultry producers. That bias is natural. The government should be asking the people being regulated for their opinions and suggestions. What’s also become clear is DENR didn’t specifically seek out citizen groups such as DRA. But DENR’s processes are open to citizens and in this case sent out hundreds of notices to interested parties. Relatively few stepped forward.
Why? It takes money and expertise for citizens to challenge permits. DENR staff members involved in permitting are scientists and engineers, but they typically aren’t researchers. There are times they issue recommendations without having visited a site, such as for water-rights permits. They will weigh facts. But those facts typically need to be brought to them. Some people from Onida recently experienced that situation when they challenged an air-quality permit for a new ethanol plant. Based on other information they had located, they wanted DENR to do research in Onida. DENR didn’t see that as its role. DENR suggested the challengers could conduct testing at their properties going forward.
In the instance of the livestock feeding permit, the goal is to protect public waters whether on the surface or underground from manure pollution. Less than 25 years ago, there wasn’t such protection in state or federal laws and regulations. We’re still finding our way.
The state Board of Minerals and Environment, which issued the Brohm mining permit and the Wasta oil well permit, now has some new members and they are asking questions more often.
The PUC is doing much more to protect landowners who are subject to utilities and pipelines using eminent domain to force access across their properties.
The challenges posed each time a permit has been sought have ever so slowly helped make a difference. It’s difficult to turn a government agency. What might help make a bigger difference during the final two years of the Daugaard administration is a public review of the processes used for permitting, and deciding whether the steps are too steep for business applicants and too steep for citizen challengers, and ultimately whether the land, air and water are rightly protected.