From: The Otter - Winter 2021

Advocating for the restoration and protection of water quality in the Big Sioux River will require diligence and doggedness by the region’s residents. Some water rules and regulations are susceptible to tweaking and interpretation by special interests and regulators who may favor special interests. Water regulations are also complicated, and citizen groups typically lack funding, expertise, and horsepower to effectively navigate, legislate and litigate the arcane world of water pollution law and policy.

As citizens, we’d prefer to defer to state and federal agencies to restore and protect healthy water. But that is naïve. Although considerable progress has been made since an era when pollution was completely ignored, ample concerns continue. In 2012, forty years after historic water protection measures were enacted, water quality in the Big Sioux River plummeted to disgraceful levels. Sediment, animal and farm waste and other pollutants wrecked the river’s water quality. This happened under the “watchful” eye of state government and the federal Environmental Protection Agency (EPA).

In 2017, about two-thirds of South Dakota’s rivers were classified as impaired by pollution. Again, this happened on the watch of regulatory agencies. Then there’s this example of regulatory stewardship: A state permit allowed Smithfield Foods meat processing facility to release up to 102 pounds of ammonia each day into the Big Sioux River, with a month-long average of 58 pounds per day. On one August day, in 2018, Smithfield discharged 2,199 pounds of ammonia into the Big Sioux River. This followed several days in which daily releases exceeded 1,500 pounds.

In between 2000 and 2019, Smithfield committed at least 61 pollution permit violations, including discharges of fecal coliform, chlorine, and ammonia into the river. For these violations, South Dakota regulators fined the company a total of $99,642. Smithfield’s parent company, a Chinese multinational, recorded 2018 sales of $22.6 billion. Is it cheaper to pollute than prevent pollution?

Passage of the Clean Water Act (CWA), in 1972, included overriding a veto by President Nixon. Though Congressional support was relatively strong, many members abstained from voting. The concept of defending natural resources remained for many an awkward, expensive abstraction.

Amended several times since 1972, the CWA retains a basic principle: The federal government, through EPA, delegates much regulatory authority regarding clean water protections to each state.

The CWA did allow for EPA to set pollution parameters for “point” sources, required point polluters to obtain permits limiting pollution and funded sewage treatment plants, among other important actions.

Addressing “point” sources of pollution while ignoring “non-point” sources (NPS) is viewed as a significant deficiency of CWA. Point sources typically are outlet pipes from factories, energy plants and municipal facilities discharging directly into surface water. Most non-point pollution comes from runoff related to agriculture and from community storm sewer systems.

South Dakota relies on voluntary measures for implementation of Best Management Practices (BMPs) to control NPS pollution. Many water researchers identify non-point contaminants emanating from farm fields as the nation’s top unresolved water pollution issue.

South Dakota officials can determine which water bodies are to be protected. Long debated is the value of protecting small streams that flow into larger streams and rivers. South Dakota has opposed extending protections to our smallest waterways, leaving them vulnerable to polluters. Of course, tributaries do not exist in a vacuum. The pollution they carry impacts the environment before flowing into and impacting other waterways.

There are nearly 100,000 miles of rivers and streams in South Dakota. About 87,000 miles of those are small and ephemeral waterways unprotected by South Dakota and the CWA.

States monitoring and regulating surface waters within their boundaries establish acceptable limits for pollutants that must align with the range of limits set by EPA. In South Dakota, those limits are posted on the DENR website. Our state tends to choose generous limits.

An example is how South Dakota addresses nitrate pollution, an escalating issue because of shoreline cropping practices and unregulated tile drains funneling fertilizer pollution into surface water. Despite these worrisome circumstances, the State’s allowable nitrate standards are often higher than EPA’s drinking water standards.

Equally impactful regarding nitrates is runoff from manure applications to farm fields. This threat is worsening, but the state appears intent on boosting development of confined animal feeding operations (CAFOs) rather than elevating water protection standards.

Section 303 (c) of the CWA requires states to periodically review the clean water standards set for applicable waterways.

A critical determinate of water quality is to measure Total Maximum Daily Loads (TMDL). Translated: How much pollution can a waterbody receive and still support its designated beneficial uses?

What are the designated beneficial uses for the state’s waterways? Here’s the list: 1) domestic water supply; 2) coldwater fish habitat; 3) marginal coldwater fish habitat; 4) warmwater fish habitat; 5) warmwater semipermanent fish habitat; 6) warmwater marginal fish habitat; 7) immersion recreation water; 8) limited contact recreation water; 9) fish and wildlife propagation, recreation, and stock watering; 10) irrigation; 11) commerce and industry.

What are the designations for the Big Sioux River? In Sioux Falls and the Sioux Falls vicinity, DENR has assigned the following beneficial uses: warmwater semipermanent fish life, immersion recreation; limited contact recreation, fish and wildlife propagation/recreation/stock watering, and irrigation. Only the needs of irrigation and fish and wildlife propagation/recreation/stock watering designations are sufficiently satisfied by existing water quality characteristics to be in full compliance. Note that domestic water supply -the beneficial use requiring the best water quality- is not included for the Big Sioux River in Sioux Falls.

From 2014-2019, DENR assessed about 5,900 miles of rivers and streams in South Dakota. That’s half the waterway miles identified as needing regulation. Only 22 percent of those miles fully supported the assigned beneficial uses.

The agency has already admitted it lacks the budget and manpower to monitor and safeguard all regulated surface water in South Dakota. This circumstance will be exacerbated if the agency is merged with the Department of Agriculture.

Dana Loseke, founder of Friends of the Big Sioux River and sitting board member explained a basic weakness that flaws today’s water protections. “Polluters and regulators rely on a waterway’s volume to help cleanse its flows,” said Loseke. “Yes, there are waste treatment plants and regulations on industry, but dilution continues to be mistakenly relied on for a major part of our government’s solution to pollution.”

As population grows and competition for useable water intensifies, dilution as a solution will be recognized as being short-sighted and incomplete. Competition and clamoring for clean water will necessitate more stringent approaches.

But our situation is not desperate. Water quality issues remain mostly manageable in South Dakota and the Big Sioux River. However, the forecast is worth noting. There are supremely challenging times ahead for advocates of cleaner water in South Dakota. Even-handed and public-spirited preparedness and enforcement must happen. Favoritism to polluting businesses and industry must cease. Water is a public resource and it should be regulated and protected to serve all constituencies.