Wins, Losses and Lessons Learned – Dakota Rural Action Wraps Another Legislative Year

Dakota Rural Action racks up some wins as well as some lessons on winning future legislative fights.

Dakota Rural Action continued its lobbying and coalition-building work in 2017-2018 bringing an agenda of positive change to the South Dakota Legislature. Fighting mostly uphill battles, DRA racked up some wins as well as learned some big lessons on working in the legislature to defend landowner rights, public safety, and common-sense policies that will benefit South Dakotans.

Here are a few highlights from the 2017-2018 South Dakota Legislative Session. (As reported by Rebecca Terk)

CAFO, Natural Resources, & Local Control Issues Crop Up In Multiple Ways

The most publicized CAFO fight of the session was HB 1184—also known as “The Manure Pipes Bill.” This legislation would have placed force-main manure disposal pipes in the section of code dealing with public utilities, allowing CAFO operators to run those pipes across private property (through the right-of-way) without landowner notice or permission.

The bill passed House Transportation Committee by one vote despite opponent testimony by DRA members, sportsmen’s and environmental groups, and it passed the full House as well, with corporate agribusiness lobbyists swarming legislators, claiming a vote against the bill was a “vote against agriculture.” Exposing this false claim was the focus of our Senate Committee testimony.

The bill passed House Transportation Committee by one vote despite opponent testimony by DRA members, sportsmen’s and environmental groups, and it passed the full House as well, with corporate agribusiness lobbyists swarming legislators, claiming a vote against the bill was a “vote against agriculture.” Exposing this false claim was the focus of our Senate Committee testimony.

Supporting the bill to trample private property rights were lobbyists for the SD Farm Bureau, SD Pork Producers Council, SD Assoc. of County Officials, SD Dept. of Transportation, and SD Assoc. of Cooperatives/SD Cattleman’s Association, as well as individual CAFO owners & operators. The operators all noted that they use this technology to transport manure, have had no problems, and work with their neighbors to secure permission—which, we pointed out, is exactly the kind of relationship-building and permission-seeking this bill sought to undermine.

Dakota Rural Action lobbying day
Concerned South Dakota residents awaiting their chances to speak to legislators during the DRA grassroots lobbying day.

Our opposition team brought together DRA-member farmers, ranchers, and rural residents to talk about real South Dakota values like property rights, respecting one’s neighbors, and not giving one sector of ag production special privileges over others. Also opposing were the SD Division of the Izaak Walton League of America and the SD Chapter of the Sierra Club, as well as the lobbyist for SD Towns & Townships. The bill was sent to the 41st Day on a 4-2 vote, with one excused.

For the fifth (sixth? seventh?) year in a row, farmers were denied the possibility of diversifying their operations by growing industrial hemp. SB 205, which would have authorized production and sale of the crop, was tabled in Senate Ag Committee at the request of its prime sponsors with no debate. The reason for the immediate tabling was unclear—last year’s industrial hemp bill cleared House Ag Committee and the full House chamber on a 2/3 vote before dying in Senate Ag on the last day for bills to make it through committee.

Our most concerning loss of the session was HB 1292, which changes the way that appeals of Conditional Use Permit decisions are handled by circuit courts. While most appeals include only a simple review of jurisdiction and legality, boards that grant (or deny) CUPs with a simple majority vote have a fuller review process on appeal. This bill made all appeals of CUPs subject to the bare minimum review. This change may lead to more boards and commissions sliding toward simple majority decision-making on even the highest-impact industrial projects with little effective review process.

lobbyists for industrial wind developers showed up to push the bill in Senate Judiciary, though one admitted he’d only recently come to understand exactly what the bill did.

Our biggest hurdle with this bill was that virtually no one understood its full context and ramifications without lengthy explanation, and its sponsors took advantage by claiming that it was simply “clean up” language. HB 1292 passed its first hurdle unanimously, though we gained some ground on the House floor, having it pulled from consent and opened for debate. However, it still passed on a 44-20 vote with 6 excused. We fought harder on the Senate side, but failed to block the bill by one vote in committee.

Belying the claim that this was a simple, unobtrusive “clean-up” bill, lobbyists for industrial wind developers showed up to push the bill in Senate Judiciary, though one admitted he’d only recently come to understand exactly what the bill did. Once he understood, his company was fully on board. We continued to push on the full Senate, but were not able to prevail, and the bill passed 22-13.

A big win for counties, conservation, and the protection of natural resources was the passage of HB 1119, which allows counties to add waterways to the Governor’s buffer strip program, passed in the 2017 session. The 2017 bill provided for a very small selection of waterways (and parts of waterways) to be eligible for the riparian buffer strip program, which allows landowners small property tax benefits for perennial plantings along the waterways. This year’s bill allows counties to add waterways to the program (with an amendment to allow for appeal of those additions). This was the feel-good bill of the session, with no “nay” votes in either committee or chamber.

This was the feel-good bill of the session, with no “nay” votes in either committee or chamber.

We also watched with interest discussions about mandating a public comment period at all public meetings (HB 1172), and a bill that would have eliminated the requirement for planning and zoning commissions to have at least one county commissioner as a voting member (HB 1167). The public comment period bill garnered a large amount of discussion and was amended twice before its passage; the bill eliminating the requirement for a county commissioner to serve on the planning commission, despite having a large number of sponsors, was killed in its first committee with only one dissenting vote.

Despite the clear need to protect private property rights and diversity within our agriculture industry in the state, a line-up of several aerial applicators (none of whom were the bad actors the bill sought to rein in) persuaded the committee members to back away from the bill and instead urge the Dept. of Ag to promulgate rules.

Farmer-members from the Southeastern part of the state brought the Senate Ag Committee’s attention to issues with chemical trespass and pesticide drift. SB 179 would have required liability insurance for aerial applicators and compelled them to observe buffer zones around specialty crop producers, apiaries, and organic farms. Despite the clear need to protect private property rights and diversity within our agriculture industry in the state, a line-up of several aerial applicators (none of whom were the bad actors the bill sought to rein in) persuaded the committee members to back away from the bill and instead urge the Dept. of Ag to promulgate rules.

One issue we did not “wade” into was the Non-Meandered Waters debate, though we did attend some of the hearings as time allowed and followed discussions around passage of this summer’s compromise bill, elimination of that bill’s sunset clause, and legislation around vacating township roads, closing roads leading to public waters, and related hot-button issues.

Energy, Extraction, and Pipelines

Long-Winded Discussions with Little Progress

The 2018 session brought a lot of storm and fury concerning wind energy development, but in the end it came to virtually nothing, as all five (by our count) bills dealing with wind energy and transmission were withdrawn, tabled, or failed to pass.

Commissioner Gary Hanson of the Public Utilities Commission (PUC) indicated to us that, with so much discussion and disagreement over the issue, conversations will need to take place between lawmakers and the PUC to work out their differences over the interim. DRA’s response was that, without participation from citizen groups, another round of clashes at the Capitol was likely next session.

This is the same attempt to undermine the PUC’s authority and responsibility to the people of South Dakota that we’re seeing in our court case over the Keystone XL Pipeline, and it should sound alarm bells for all citizens of this state.

The PUC’s bill—HB 1022 sought to extend the wind farm permitting period from 6 months to one year. PUC Commissioner Hanson showed up in House Commerce & Energy to request that their bill be killed. Two wind energy bills came out of District 23: HB 1234 would have required (rather than simply allowed) the PUC to engage in rule-making on planning, permitting, and bonding of wind energy facilities. It failed 11-23 on its final Senate floor vote. HB 1235 would have provided for county-level bonding on wind farm projects below the PUC’s 100 Mw limit. House Local Government deferred that bill to the 41st Day on a unanimous vote.

grassroots lobbying in south dakotaAnother two bills were brought forward by legislators from Districts 1 & 4, and neither of those made much progress, either. SB 127 appeared to lessen the specifics required in wind energy applications. It was withdrawn by the prime sponsor. HB 1164, among other changes to the permitting process, would have removed the necessity of a permittee to return to the PUC after four years to certify that the facility continues to meet the conditions upon which the permit was issued.

This is the same attempt to undermine the PUC’s authority and responsibility to the people of South Dakota that we’re seeing in our court case over the Keystone XL Pipeline, and it should sound alarm bells for all citizens of this state.

Extractive Industries, Oil & Gas Get Some Pushback

Black Hills Chapter members showed up in force for the hearing on HB 1225, which would have required public notice and hearing before issuance of temporary water permits by the Dept. of Environment & Natural Resources (DENR). The issue came to the fore at the beginning of the year, when Mineral Mountain Resources was granted such a permit as part of their gold exploration in the Rochford area of the Black Hills. Testimony focused on the amount of water use granted in such temporary permits, and the lack of oversight and public input on them. The bill was defeated on a 9-4 vote, but not without serious discussion and consideration that at least some of these temporary permits should have further scrutiny.

Another bill of concern regarding water resources was HB 1130, which would have allowed licensed plumbers and contractors (rather than only registered engineers) to design and submit plans for evapotranspiration waste water systems. These are the types of systems used for in situ leach mining for uranium, and a Black Hills DRA member and engineer “registered” his alarm as a licensed professional. The House sponsor was in an awkward position with a constituent bill he didn’t clearly comprehend (the constituent didn’t show up to pitch the bill) and a knowledgeable professional sounding the alarm, and the bill was tabled on a unanimous vote.

In SB 33, the Department of Agriculture attempted to throw out mediation programs for farmers, ranchers, and landowners impacted by oil & gas development and drainage disputes. These programs have been in place for only a few years, and have seen little use thusfar, as their implementation coincided with a downturn in the oil & gas market (and therefore a downturn in exploration & development). However, with those markets heating up again, the program was considered too valuable to dismiss, and the Dept. spokeswoman pitching the bill weathered criticism from committee members for the repeal attempt. It failed unanimously in its first committee hearing.

Two bills dealing with concerns over pipeline safety failed in committee, but sparked much more discussion than similar bills in previous sessions. The reason for that is not hard to determine: in November 2017, the Keystone I pipeline was reported to have leaked over two hundred thousand gallons of oil in Northeastern SD (recent reports nearly doubled that figure). HB 1223 stated, “It is hereby declared to be the public policy and in the best interests of the State of South Dakota and its people that a moratorium be placed on the construction of any new oil pipeline.” It failed on an 8-4 vote. SB 188 called for groundwater observation wells to be put in place in the event of an oil spill. DENR Secretary Steve Pirner led the opposition and was questioned extensively by the committee. The bill was killed 7-2.

C-PACE Process Provides Experience; Teaches Lessons

Bringing a new and fairly complex piece of legislation to a session overloaded with bills is a daunting task. But, members of the Community Energy Development (CED) Committee of DRA worked hard to bring a Property Assessed Clean Energy bill to the Capitol this year. The program, known as Commercial PACE, would have allowed counties and municipalities to work with local lenders and contractors to provide low-interest loans to install energy conservation and renewable energy projects on commercial properties, with the payback assessed via the owner’s property tax bill.

DRA’s Lobby Day allowed us a great opportunity to sell our bill to potential sponsors. All morning, members hit the floor of both chambers to talk with legislators and inform them about C-PACE.  Over the noon hour at the Capitol Café, CED Committee members chatted up legislators and lobbyists alike and invited them outside to tour the Brave Heart Society’s solar power trailer that, despite the overcast skies, was steadily juicing up a Chevy Volt parked alongside.

The process started months before session, with development of informational materials and a website, as well as discussions with legislators, business owners, and trade organizations about the program’s benefits. However, as session approached, we still did not have a sponsor for our bill. This was in part due to the American Legislative Exchange Council (ALEC) taking a position against residential (R-PACE) programs. That made it difficult to educate some legislators—they simply heard “PACE” and backed away.

grassroots lobbying in the south dakota legislature
C-PACE crew working hard to educate lawmakers.

DRA’s Lobby Day allowed us a great opportunity to sell our bill to potential sponsors. All morning, members hit the floor of both chambers to talk with legislators and inform them about C-PACE.  Over the noon hour at the Capitol Café, CED Committee members chatted up legislators and lobbyists alike and invited them outside to tour the Brave Heart Society’s solar power trailer that, despite the overcast skies, was steadily juicing up a Chevy Volt parked alongside.

It was a great day, but at the end of it, we still didn’t have a sponsor. And the clock was ticking.

It was the last day to file legislation when DRA’s lobbyist received a text. Representative Jamie Smith had agreed to take on our bill. Senator Troy Heinert agreed to co-sponsor in the Senate, and we were on our way to achieving our modest-but-hard-won goal of getting C-PACE into committee with HB 1301.

Despite rumors that we’d be assigned to House Taxation, we ended up in Commerce & Energy. It’s a large committee, and on the day we were scheduled, they had several other bills– some more complex than our ten-pager. It was not the best situation for a positive outcome. Undeterred, Rep. Smith gave his short introduction and turned things over to Rick Bell, Chair of the CED Committee, to make the sale. Rick was followed by Don Kelley, Cheryl Rowe, Alan Anderson, and our lobbyist, Rebecca Terk. Mark Winegar of the SD Sierra Club gave a brief, “me, too.”

Opposition testimony from the SD Association of County Commissioners, the Banker’s Association, and the Electric Utilities focused mainly on issues with residential PACE programs, which our bill did not contain. Our rebuttal reiterated, once again, that this was not R-PACE, but at two-plus hours into a hearing with several complex bills, there was little chance for our message to resonate. The final vote was 10-3 to kill the bill, with Reps. Spence Hawley, David Johnson, and Wayne Steinhauer dissenting.

We did a lot of things right in this process, like getting our bill draft and promotional materials done early. But, we were stymied by non-committal sponsors early on, and we were even advised to drop our efforts by competing parties. Assessing our situation, we scaled back our goal shortly before the session began, and that goal of getting C-PACE into committee (and flushing out our opposition) was achieved. The lessons learned by the CED Committee during this session will no doubt help further our efforts in the next session, and add to the expertise of the organization’s membership as a whole.