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Water rights permit application at center of state board legal drama

North Sioux City, South Dakota
McCook Lake is a public oxbow lake along the Missouri River. Dakota Bay, LLC's permit application seeks to connect a canal to the lake.

Two subpoenas related to disagreement about constructing a canal connected to McCook Lake were quashed in the latest South Dakota Water Management Board meeting.

Subpoenas were issued on behalf of the McCook Lake Association to South Dakota Game, Fish and Parks and to the state’s water rights program. Attorneys representing the organizations filed an oral motion to quash the subpoenas during Wednesday's board meeting.

John Hines is the attorney representing the McCook Lake Association. He said the subpoenas are regarding a permit application from Dakota Bay, LLC.

“The McCook Lake Association is involved in two proceedings in front of the Water Management Board," Hines said. "The first is its petition for a declaratory ruling. The second is an opposition that the association has filed to the water rights permit that has been submitted by Dakota Bay. So, as part of that proceeding, the association has the right to seek evidence to use for the proceedings in order to argue it's case.”

Dakota Bay has applied for a permit to build a canal connecting to McCook Lake. The lake is a public body of water along the Missouri River. The McCook Lake Association website says construction of main dams and channeling the Missouri River has resulted in water needing to be pumped into the lake for the last 60 years.

“They [Dakota Bay] want to connect to the lake and develop the property," Hines said. "And I don't think that there are too many projects like that, that happen in the state of South Dakota. We're aware of only a few. This is a small lake and a lake that the association, its volunteers and its a donors spend a lot of time, money and energy maintaining.”

Dakota Bay’s application requests a permit to appropriate 28.6 acre-feet of water in the first year and then 7.99 acre-feet annually from the Elk Point aquifer. Their application states this water will be used to fill a canal connecting to McCook Lake.

During the board meeting, there was debate about whether the McCook Lake Association had the legal authority to issue these subpoenas instead of the board.

After listening to the arguments and holding an executive session, the board unanimously voted to quash both subpoenas.

Hines said the McCook Lake Association will continue to pursue both of their proceedings with the Water Management Board.

Additionally, he said that he believes this case is unusual.

“In the water rights permit application, by my tally, there have been 197 comments in opposition filed to that application. I believe that is probably uncommon in this type of proceeding," Hines said. "I think it is also uncommon that, in the petition for declaratory ruling, that the only party who is opposed to that is not Dakota Bay, but actually the state through the chief engineer.”

Dakota Bay and the attorney representing South Dakota’s water rights program both declined to comment.

The Water Management Board scheduled a hearing for Dakota Bay, LLC’s permit application for Aug. 2.

Elizabeth is an intern with South Dakota Public Broadcasting.