Water Protectors Prepare For Battle: The Next Big Resistance In South Dakota

DAPL

It’s raining buckets outside. The back and forth of the windshield wipers and Siri’s monotone guidance accompanies me through the roads riddled with potholes and semi-trucks. I pass several gated factories to an empty corner of the property, where the Puyallup Tribe and their allies had been protesting the Puget Sound Energy Liquid Natural Gas (PSE LNG) site at the Port of Tacoma in Washington state the day previous. The tribe believes that contaminated soils (the site is within a large, untouched Superfund site) will be exposed by the proposed barge facility on the Hylebos, which would be to the detriment of fishing stocks and negatively impact tribal marinas that are across the waterway from the plant.

Tribal Land Rights

The Puyallup Tribe and their allies are not alone in their fight for environmental justice and their treaty rights. During the Standing Rock protests, headlines of the largest gathering of indigenous nations in modern American history setting up camp drew worldwide attention. Images of Native water protectors and their allies being bitten by police dogs, pepper sprayed during peaceful protest and hit with water cannons in below-freezing weather circulated all over social media and were eventually picked up and globally broadcast by large news networks. Cheyenne River Sioux Tribe member Nicole Ducheneaux, an attorney with the Indian Law Practice Fredericks Peebles & Morgan, currently represents the Cheyenne River Sioux Tribe. The Cheyenne River Sioux Tribe is the sister tribe to the Standing Rock Sioux Tribe. They are both Lakota people and fought together against the Dakota Access Pipeline (DAPL), also known as the Bakken pipeline, on the ground and in court.

Ducheneaux’s experience as an attorney includes tribal economic development, gaming, corporate law, construction law, tribal housing and litigation. She has assisted in defending and prosecuting lawsuits in state, federal and tribal courts, and was selected by Super Lawyers Magazine as a “2017 Great Plains Rising Star.” The DAPL dispute raised a lot of questions about territory and treaty rights. Ducheneaux explains simply, “Pursuant to our treaties, our [The Cheyenne River Sioux Tribe] rights extend beyond the borders of our reservation…they didn’t extinguish our hunting and fishing rights in those areas. We explicitly have a right to use Lake Oahe, to use the waters and the lands that sustain our hunting and fishing. When pipelines cross under our reserved rights and have the potential to harm our waters that flow into our reservation, then that has the potential to violate a treaty right.”

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More than 200,000 rural Kentuckians have no access to public water systems

By Greg Kocher

gkocher1@herald-leader.comAugust 4, 2014

FRENCHBURG — Debbie and Mike Weiner can see Cave Run Lake from their house, but they depend on rainfall for their water.

Rainwater runs off the roof to their gutters and through pipes to collect in an underground, 1,000-gallon cistern in the backyard. The water is then pumped into the house for bathing, washing clothes and the toilet. They use only bottled water for drinking and cooking.

"Yesterday it rained a lot," Debbie Weiner said in a recent interview. "That’s when I washed my bedclothes and a lot of the things in the house that needed to be washed."

The Weiners are among a shrinking number in Kentucky — an estimated 93,600 households, or more than 234,000 people — who are not connected to a public water system. Their house on Leatherwood Road in rural Menifee County is about eight miles from the nearest water line and 20 miles north of Frenchburg, the county seat.

The Weiners desperately want to be connected to a public water system. At least one test showed harmful E. coli bacteria in their tap water, despite reverse-osmosis filtration, ultraviolet light and other purification measures. The couple haven’t used the cistern water for cooking or drinking since 2012, when Debbie, 60, a former adult-education instructor at Morehead State University, was diagnosed with an incurable bladder disease. She keeps a log of the politicians and others she has contacted in her quest for "city water."

The Weiners highlight one of the gaps in water service in the United States.

The U.S. Geological Survey estimates that 14 percent of the population relies on wells, cisterns or some unsustainable source for water, said Stephen Gasteyer, an associate professor of sociology at Michigan State University. Gasteyer has studied community and natural resources management.

"It’s an embarrassment for us as a nation to have people in the 21st century who don’t have access to water and sanitation," Gasteyer said. "But from the perspective of a small water system, they are already strapped. We had major infrastructure investments in this country in the 1930s … through the 1970s. Well, a lot of that infrastructure is now wearing out. You have water systems of all sizes in this country that are struggling to stay in the black. So taking on the extra load of people who are a ways out of town seems like a real burden."

In Kentucky, about 5 percent of residents are not connected to a community water system, according to figures provided by Andy Lange, assistant director of the Kentucky Rural Water Association. Only California has a lower percentage of residents who are not served by community water systems.

(By contrast, almost a quarter of Kentucky’s population — 23 percent — has no access to high-speed Internet. Kentucky ranks 46th in broadband availability.)

Many water lines were extended into unserved rural areas during the 2000s, when Kentucky had money from the national tobacco settlement. That money is gone, although there is a state revolving fund and other federal programs to extend water lines.

Trouble is, the cost of running water lines to remote spots often isn’t cost-effective, said John Horne, a Nicholasville engineer whose firm has designed extensions in Jessamine County.

"To construct a distribution main, depending on the terrain and how much rock there is, it can run as much as $50,000 to $75,000 per mile," Horne said. The price can easily double in rough terrain common in Eastern Kentucky, including Menifee County.

Community development block grants and other programs are available, but potential projects must qualify, Horne said.

"The government looks at feasibility. If it’s not feasible, … they don’t do it," he said.

Even if lines were extended to isolated pockets, low usage from a small number of customers poses other problems, Horne said.

"Especially on long, dead-end lines, if they can’t use up all the water in the pipe in, say, two days, then it gets stale and then you get problems with odor and taste," Horne said. "Then you have to flush all that out and waste it."

Debbie Weiner has an answer ready when asked why taxpayer dollars should be used to pay for water lines to a remote spot where she and her husband choose to live.

"I think those tax dollars should pay for an American citizen to live anywhere they choose if I can open the paper and see that millions of dollars go to study garbage dumps that are closed," Weiner said. She was referring to environmental risk assessments performed on closed landfills.

She also said that millions of dollars in state incentives will help Alltech put a new bourbon distillery and aquaculture and poultry farms in Pikeville. The state will provide as much as $5.73 million for an access road wide enough to accommodate tractor-trailers to a new industrial park, and $8 million for a bridge to connect an access road with U.S. 23. The incentives will bring new jobs.

Weiner doesn’t begrudge anyone jobs, but she said safe drinking water should be a high priority.

"Then let’s build a better Rupp Arena," she said, referring to the now-stalled project that would have leveraged public and private dollars for a new Lexington home for the University of Kentucky men’s basketball team.

Frenchburg Mayor Edward Bryant said Leatherwood Road is one of only two rural roads in Menifee County that are without water. To extend water to the end of that road deep within Daniel Boone National Forest could cost more than $1 million, Bryant said.

"They’re in a remote area. There’s only, roughly, 24 or 25 homes, and out of that there are 12 or 15 people that live there full-time," Bryant said. "We can’t put a burden on the current water customers to extend that. It’s a tough situation."

Nevertheless, he said, the Gateway Regional Water Management Council has put the Leatherwood area on a list of projects.

"For Frenchburg to get over there, we’re going to have to cross that (Cave Run) lake some way," Bryant said. "That means a pump station and a water tower, then you’ve got a problem of meeting the state regulations, keeping the water fresh for such a few. … It’s just not feasible right now unless somebody comes along with a barrel of money."

In the meantime, because rainfall is unpredictable, the Weiners supplement their water supply. When rain is scarce and the cistern runs low, Mike Weiner, 65, a retired car salesman, drives about 12 miles to buy water from a bulk station. For $2, he can put 300 gallons in a tank that sits on the bed of his pickup. Then he hauls the sloshing load home to empty into the cistern.

The Weiners moved to Menifee County from Nashville so Debbie could be closer to her mother, who lives in Mount Sterling. Her mother previously owned property in the Leatherwood Road neighborhood where the Weiners eventually bought a lot and built their house. The couple knew the area had no public water when they moved there in 1998, but they thought it would be only a matter of time before they could hook onto "city water."

Debbie Weiner said she sometimes goes to the Facebook page for Water.org, the organization co-founded by actor Matt Damon to provide safe drinking water and toilets to Ethiopia, Haiti and India and other foreign countries.

She posted a comment to the page July 16 that read, "Wish I had city water here in the United States, in Frenchburg, Kentucky."

She hopes a wealthy celebrity will see her comment and take action to donate money to bring water to the end of Leatherwood Road.

Greg Kocher: (859) 231-3305. Twitter: @HLpublicsafety.

Read more here: http://www.kentucky.com/2014/08/04/3365284/public-water-systems-still-dont.html#storylink=cpy

U.S. Supreme Court sides with Oklahoma in water case

In a unanimous decision, the U.S. Supreme Court ruled that a Texas state agency has no right to reach into Oklahoma for a share of water.

By Chris Casteel Modified: June 13, 2013 at 10:19 pm • Published: June 13, 2013

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WASHINGTON — Oklahoma won a major victory Thursday in defense of the state’s water supply, as the U.S. Supreme Court ruled unanimously that Texas can’t reach across the border to claim a share of the Kiamichi River.

Oklahoma Attorney General Scott Pruitt said the decision protected Oklahoma’s right to manage its water for generations to come, though the state is still in negotiations with the Chickasaw and Choctaw tribes about water rights in southeastern Oklahoma.

The high court’s decision ended a six-year legal battle with the Tarrant Regional Water District, a Texas state agency that claimed a water compact among Texas, Oklahoma, Arkansas and Louisiana gave Texas the right to reach into Oklahoma to get its share of allotted water.

The Red River Compact — approved by Congress in 1980 — gives each of the four states an equal share of excess water from the Kiamichi River. But the compact doesn’t explicitly say whether one state can cross a border without permission to get its share.

The decision

The Supreme Court on Thursday agreed with Oklahoma’s position — which was supported in the case by Arkansas and Louisiana — that the compact would have spelled out the terms if cross-border access was permitted.

“Many compacts feature unambiguous language permitting signatory States to cross each other’s borders to fulfill obligations under the compacts, and many provide for the terms and mechanics of how such relationships will operate,” the opinion written by Justice Sonia Sotomayor says.

“The absence of comparable provisions in the Red River Compact strongly suggests that cross-border rights were never intended to be part of the agreement.”

Moreover, the court held that states rarely relinquish their sovereign powers. If Oklahoma had intended to give up its rights to the water within its borders, there would have been a clear indication in the compact, “not inscrutable silence,” the court held.

The court also noted that the Texas agency waited a long time after the compact’s approval to claim the right to get water in Oklahoma.

“Once the Compact was approved in 1980, no signatory State pressed for a cross-border diversion until Tarrant filed suit in 2007,” the court opinion states.

“And Tarrant’s earlier offer to purchase water from Oklahoma was a strange decision if Tarrant believed the Compact entitled it to demand water without payment.”

The Supreme Court also held Thursday that Oklahoma’s laws allocating water — and essentially barring out-of-state sales — do not violate the Commerce Clause of the U.S. Constitution.

The Texas agency pursued the case to the U.S. Supreme Court after losing in federal district court and the U.S. 10th Circuit Court of Appeals.

Pruitt, whose office represented the state, said the decision “affirmed Oklahoma sovereignty over our water.

“It’s important that we in the state of Oklahoma have the ability to manage our water and not be forced to give water to Texas and that’s what Tarrant County sought. It will impact generations to come, and the flexibility and latitude that Oklahoma needs to manage its water resources has been confirmed by the U.S. Supreme Court.”

Jim Oliver, general manager of the Tarrant Regional Water District, said Thursday, “Obviously, we are disappointed with the Supreme Court’s decision.

“Securing additional water resources is essential to North Texas’ continued growth and prosperity and will remain one of our top priorities. … The decision does not address the problem of Oklahoma’s lack of water infrastructure, and we believe solutions that benefit both Texas and Oklahoma still exist.”

Oklahoma City’s city manager Jim Couch hailed the decision. In a brief filed in the case, Oklahoma City argued that southeastern Oklahoma water is a critical component of the city’s municipal water supply.

Oklahoma City has long-standing permits for water from the Kiamichi and Muddy Boggy rivers. The water is pumped from southeast Oklahoma through the 50-year-old Atoka pipeline. An application for more water from the Kiamichi would provide nearly enough to meet city needs for 2060, as projected in a 2009 study. That application is tied up in the lawsuit by the tribes.

Red River rivalries

The Supreme Court last year refused to wade into a separate water dispute in Oklahoma, effectively upholding an appeals court ruling that the Oklahoma town of Hugo couldn’t sell water to Irving, Texas, without the state’s permission.

The U.S. Justice Department urged the high court to take the Texas challenge and sided with the Tarrant district on the key point of whether Texas could cross the border to fulfill its share under the compact.

The high court’s opinion Thursday gave a brief history of Red River rivalries between Oklahoma and Texas, mentioning “the famed college football rivalry between the Longhorns of Texas and the Sooners of Oklahoma” and the mobilization of state militias during the Red River Bridge War in 1931.

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