ELR Citation: ELR 20609
No(s). 18708 (S.D. Dec 7, 1994)

The South Dakota Supreme Court holds that appropriation of water for waterflow habitat and other wildlife is a beneficial use. The court affirms a state circuit court decision upholding the South Dakota Water Management Board's (the Board's) grant of two water right permits to the U.S. Fish and Wildlife Service (FWS) for use in maintaining wildlife habitat in a national wildlife refuge. The Board granted the FWS three water right permits on the condition that the FWS' use of water did not flood or impair surrounding landowners' properties. The landowners appealed to a state circuit court, which reversed the Board's grant of one permit and affirmed the Board's grant of the other two (the second and third permits). The landowners appealed.

The court first upholds the second permit, which was for a new water right to the natural flow of water from six springs in case the water table dropped due to conditions or use by others, because it did not improperly reserve a future use by protecting against future diminution. The court upholds the circuit court's finding that the use of the springs to maintain waterfowl habitat was a current use, and that the permit was not granted for an impermissible use. The court next upholds the circuit court's finding that the permit would not change existing natural conditions and that it would not impair the quality or quantity of water flowing to the landowners' properties.

The court upholds the circuit court's conclusion that the FWS' use of this water right for the maintenance and protection of the refuge's waterfowl habitat is a beneficial use. The circuit court found that the habitat provides for a nationally significant population of wildlife, and that propagation of wildlife is reasonable, useful, and beneficial to the FWS and the public. Beneficial use is an evolving concept that courts can expand to reflect changes in society's recognition of the value of new uses of resources. The court further upholds the circuit court's conclusion that it is reasonable, necessary, and beneficial for the FWS to have uninterrupted use of water. The circuit court found that natural precipitation is not dependable and that dependable water is required to maintain the habitat. The court next rejects the landowners' argument that no beneficial use exists because water used for a wildlife refuge is not "irrigation" and only "irrigation" constitutes a beneficial use. The court rejects the landowners' argument that the permit is not in the public interest, and therefore is not for a beneficial use. The court upholds the circuit court's conclusion that the landowners' public interest argument was misplaced because they failed to show that this permit would change or cause any flooding that did not occur naturally.

The court next holds that the landowners have not shown that the amendment to the FWS' third permit allowing it build a new dam at a new diversion point is improper. The Board found, and the circuit court agreed, that because the dam at the original diversion point was no longer functioning, the necessity of building a new dam made use of the original diversion point impracticable. The court also upholds the circuit court's conclusion that state law imposes no requirements that the new property be contiguous to the original property in the permit. The court also rejects the landowners' contention that use of water under the third permit would impermissibly amend and "irrigation" use into a nonirrigation use. The court holds that the circuit court did not err in affirming the Board's finding that the use of the water under this permit would provide habitat for waterfowl.

Counsel for Petitioners
Patrick M. Ginsbach
Farrell, Farrell & Ginsbach
441 N. River St., Hot Springs SD 57747
(605) 745-5161

Counsel for Respondent
Mikal Hanson, Ass't U.S. Attorney
U.S. Attorney's Office
225 Pierre St., Rm. 326, Pierre SD 57501
(605) 224-5402