A Question of Quality - Jay Gilbertson Part 2

Hosts: Travis Entenman & Lori Walsh
Guest: Jay Gilbertson, Manager of East Dakota Water Development District

Episode Summary

In the third episode of the Rivers and Rangelands podcast, hosts Travis Entenman and Lori Walsh sit down with Jay Gilbertson for a wide-ranging discussion on water rights and the science of aquifer drilling in South Dakota. The trio explores the dramatic variations in depth to bedrock across the state, from as shallow as 50 feet to wells plunging over 1,000 feet deep, and unpacks what these geological realities mean for communities relying on groundwater.

Gilbertson illuminates the legal framework of South Dakota water law, emphasizing the role of public trust and the doctrine of first-in-time, first-in-right. Listeners get an inside look at the permitting process, the critical importance of future use permits for community planning, and how water allocation in the Big Sioux aquifer is becoming increasingly challenging as demand rises. Historical anecdotes about fossil finds and unique South Dakota geology add depth and local color to the conversation, painting a vivid picture of both the region’s past and its water future.

Perfect for anyone curious about how water shapes communities, or for landowners and decision-makers navigating South Dakota’s evolving landscape, this episode combines expert insight with practical stories and a touch of history to keep listeners engaged from start to finish.

About the Show

Rivers & Rangelands explores conservation, water, and community in the Northern Great Plains. Hosted by Travis Entenman and Lori Walsh, the podcast asks big questions about how we care for our land and water — today and for generations to come.

🎶 Special thanks to Jami Lynn for providing the music for this episode. You can explore more of her music here: jamilynnsd.com

👉 Follow Friends of the Big Sioux River for more episodes, updates, and ways to get involved.

👉👉  And to hear more from Lori, follow So Much Sunlight, a newsletter of essays, poetry, and audio ephemera on Substack!

Transcript

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If you get the right spots, there are still remnants of that old sort of junky seabed, fossilifice seabed. And you could sit there and pick up sharp teeth and wow, fish scales. Nature's neat. Nature's neat. Nature's cool. Unfortunately, ocean now kind of put the kibosh on that. This was the good old days before, oh shoot. Welcome everyone to the third episode of rivers and rangelands podcast. I am Travis Entenman, and I'm joined with Lori Walsh, thanks for being here. We are down at bread and circus bustling downtown restaurant in Sioux Falls, because we do a lot of our planning here and have lunch together and talk about stuff, but also because you can hear the busy sounds of a Sunday in a bustling city of Sioux Falls. It is trying to grow, and very much our conversation with Jay Gilbertson is about how a city can grow if they don't have enough water to grow. So you can hear the sounds of that city. This is part two of four parts of our conversation with Jay Gilbertson, which we recorded up in Eagan, South Dakota. And we're going to jump right in here with drilling holes to access water from an aquifer, and we're really going to get into water law and who, who owns the water, what kind of permits you need to use, all kinds of really specific and more weedy than anything about but important information for the community to know of how we get our water, where it comes from, and what rights we have with our water. And if you're just joining us and this is your first episode, feel free to go back to our previous episode with Jay, the episode one with Him, because He does a great preview and overview of water quality issues in South Dakota. So it's a good intro to what we're going to be talking about today. You For context, when you're drilling holes on the eastern side of the state here, what's the average depth that you're going is there an average depth? Just the picture, the work that the state survey did, and I That's my frame of reference. Yeah, when we were doing the general exploration work, I worked in what was called the county study program. We would go into one or more counties, Lake and moody counties, were done together as a package. I worked on Coddington and grant and Hamlin and tool there. What we would typically do is drill through the glacial deposits, because, again, in those those materials, the aquifers were unpredictable. You know, you'd have to drill a hole and then drill another hole and drill another hole. If you got down into the bedrock, the layered units, which were below the glacial deposits, once you kind of figured out where you were in the pile, you could predict things. And you didn't have to drill very far, sure, for a depth that could mean a few 10s of feet. Oh, falls. I mean, you know, think about the quartzite that's sure at the surface, that's su quart sites at the surface around here in moody County, maybe 50 to 100 feet. 150 feet, okay, would get you to bedrock in most places. As you go farther north, the bedrock surface drops a little bit. There's a number of irregularities in the Cottington county area 500 feet. Oh, wow. Was an average that we would go with if you're along the crest of buffalo Ridge, up by summit or South Shore, some of those areas, there's a there's a low in the bedrock to the east that sort of underlies the highest ground on the coteau, 863 feet was the deepest shot to bedrock that I was involved with. It's probably still in the top 10 deepest holes, in that regard, thickest glacial piles. But there are spots where we we would could project over 1000 feet of glacial sediments really up in the summit area. That's real hand. Wow. That is, that is hard drilling. I'm shame, yeah, to do. And so it doesn't seem easy. Some of that you ignore. You know, it's like, well, yeah, we'll assume it's if, if the holes around it all support that interpretation, then it's, we'll just skip that one, sure. But. Thanks, red fox. And for all those who are listening right now, there will be a quiz episode. There's repeat listening, but you get them up by Milbank, where the granite quarries are at the surface. And again, you can, you can walk out there and touch the bedrock, touch the granite. There are places you can touch the shales, sure, much as you would find out along the Missouri River, there are exposures where those similar rocks can be found up in the Roberts County, northern Grant County. Here, you think you know a place. How long have I lived here? You think I know it? I know. I know none of this. Yeah, crystals, gypsum crystals. We used to take the kids out in the field, and we'd collect crystals of gypsum along Big Stone Lake, really. Yeah, see you. And shark teeth I would not have and shark teeth, yeah, at the at the granite quarries, the much like the quartzite when South Dakota was part of under over lane by what's called the Western interior Seaway, the quartzite and the quarry areas, some of the granites up there stood up as positive features on the landscape and were either islands or very shallow areas in this relatively deep water sea. And up around Millbank, around these little knobs there, you know, you can find all kinds of fossils and things that would accumulate in the little crevices and cracks, and then 100 million years later, when we're digging up the granite to make tombstones for the FDR Memorial out in DC with the Milbank mahogany, if you get the right spots, there are still remnants of that old sort of junky seabed, fossilifice seabed, huh? And you could sit there and pick up sharp teeth and wow, fish scales. Nature is neat. Nature's neat. Nature's cool, and he only moves faster. The gray wolf comes to play. Gray wolf comes to play, the gray wolf comes to play. Unfortunately, OSHA now kind of put the kibosh on that. This was when we were when we would work out a mill bank in the evening. When we were done, we'd go out to the quarries and poke around on the rocks. Oh, sure, see what we could find the good old days before. Oh, shoot. A little more casual approach for a while. I mean, the quarry operators kind of knew what was it, and it was a lot of geology groups would come out. I've taken dozens of field trips people up there. So when they were digging, because the the area where you would find the what we would think would be, the cool stuff was just junk to them. That was this punky, rotten rock that had no commercial application. They wanted the nice, clean stuff. So if they'd they'd scrape it off, they'd put it in a bucket loader, and they'd haul it off to one part of the lot and dump it, okay, so that when the next geology class came up there to go poke around, they could say, Yeah, over there. That's we scraped the corner, yeah, and then you could, we could, we could pick sharks teeth, and they could not run us over. Everybody's happy. Everybody was very happy. Wow, that is fat. What grade would I have learned that in that I skipped eighth grade, or science? That was earth science in eighth grade. Okay, that's what got me started. Well, I'm sure, I'm sure somebody taught me. I'm sorry I forgot wherever that teachers I was in public school. Yeah, I don't remember. I don't remember having it either. But all right, so there you go. But yeah, it the depth varies depending on where you are, you know, again, few 100 feet in the and, you know, the issue, drive across South Dakota, and expect both of you have done if you go, say, from Milbank to Mobridge at Millbank again, the quarries around that area, depth to bedrock can be, you know, less than 100, 150 feet. A lot of places you climb the hill to Summit. Now you're going to go up 1000 feet in elevation. And if you get the right spot, that whole 1000 feet is glacial material, right? And then so go across Dade County. You drop off the other side. The pile is not quite as thick, couple 100 feet. Then you get. Up into the hills west of Aberdeen. You're back up on what's called the Missouri cateau. And then again, a fair, depending on you know, certain circumstances, 235, 100 feet of drift in certain places. And then once you get to the river, that's about as far west as the ice made it okay. And so there's no, there's very little glacial material left West River. West river you can find, you can I mean, we know it got pockets. Yeah, we know that ice at one time was west of the Missouri River, because you can go out there and see boulders of tight or, you know, big boulder of a rock that is not common to the Black Hills, okay, at that point, the land is mostly sloping from west to east. The rivers all run from west to east. And so if you found something, you'd look west to figure out where it came from. Well, these are rocks that very clearly came from northern Canada, okay, and they're on the wrong side of the river. Well, that tells us the ice at one point got to that spot, yeah, but it's mostly gone. And so, yeah, geology is a lot of fun. We're going to go maybe forward a little bit, but pinning off of something that you said earlier about vulnerability and what are some of the ways that that water allocation is unique in South Dakota. Now that we understand some of the earth science and the depth of all this, which I find totally fascinating, how do we use it? How do we decide whose water it is? What are some of the foundations of that, like water rights and the water rights? Okay, okay, real simple. The water belongs to all of us. It is. The water is the property of the people of South Dakota. It's within public trust, public trust and the state acts as, yeah, they are the trustees something called the South Dakota water management board. It's a governor appointed Group of Seven people. Should know that I was in front of them last week, but they were all there that day. Most of them were there. Some of them are there. But yeah, the water belongs to everybody, and if you want to use the water, whether it's groundwater or surface water, lakes and streams or something out of an aquifer, there's a domestic use provision in the law that says, you know, if Laurie only you know if you're only going to use a domestic amount, which is an average of 18 gallons a minute, no more than 25 gallon per minute, peak pumping rate, whatever that that you can do without any other effort, you just drill a well in the ground and start pumping. If you are more than domestic use, more than 18 gallons, or more than 25 gallon at a peak, then you have to go to the state or go to the water management board and get a permit to use large volumes of water. So a Public Water Supplier like Big Sioux community water our hosts, they have permits or licenses for the wells that are out here in the field, and there are requirements for those permits. Basically, there has to be water available. Seems pretty obvious, but there's got to be water in the ground, the quantity that you are going to use, or the use that you are proposing now, cannot interfere with a use that someone else who got there first. You know, if I you know, you can't, you can't mess with somebody who's already there. And that gets to sort of the core of Western what's called Western water law, which is a first in time, first in right? If I'm the first one to pull water out of the Big Sioux River, to get a permit, you know, and it's permitted use. And then the next person that comes along, they can pull water out of the river, but they are considered junior to me, and so on and so on and so on. And if at some point, the amount of water available starts to dwindle, maybe we're pulling too much from it, I will be the last person who has to stop the junior user, the last person in, is going to be the first person out, sort of thing. And so in an ideal situation, when the water management board considers a request to put in a new well or a new diversion, they will look at the pre existing water rights in that. Area, and if the new use, or the volume that the new person wants to use is too much and will will mess with the pre existing rights, they will be rejected. They will not be allowed to do that now, in most instances in South Dakota right now. What that really means is that you can't put a well right next to another guy's well, okay, so I've got a really good well, and Travis goes, Oh, I'd like to get a well just like Jay. So I'm going to propose to put my well in right on the other side of the fence line. And water rights is going to go, No, you cannot drink his milkshake. You can't do that. However, if you, if you want to put your, well, like a quarter of a mile, you know, on the other side of the quarter, go ahead, because then there will be interference, and there's actually, there's, there's plenty of water in the ground, maybe, or at least enough for that use. It's just it's not all in one location. However, we are getting to a point in South Dakota, in some places where there is no option that all of the water that we believe to be available in a particular aquifer is spoken for the all my lovers have all gone unto great things and in good health, family pictures in fog, which I inflict upon myself. I held in captivity, trail line on spoken Love is love now every pedestal relinquished, never dreamed, pushed me. It doesn't matter where you want to put that, where you want to put the well. And that is a situation that we were in here in the greater Sioux Falls area right now, particularly with regard to the Big Sioux aquifer, the surface sands and gravels, which have got really good water and everybody likes to use for much of moody and Minnehaha County, all of that Big Sioux surface aquifer water is now spoken for. And so if you want to put a new well in kind of a too bad situation, or you work out an arrangement because some of the allocations are for active wells like we have here. Others are what are called future use permits, where you can look ahead and say, we anticipate a future need, and certain entities, primarily public water supplies, city of Sioux Falls, Big Sioux community water and a few other entities, and east the water development districts are an example. We can reserve water today for some future use now there the requirements are still there that it has to make sense, it has to be a good use, and ultimately, when we are we would, if you convert a future use permit to a license to actually use it, you still have to meet the is there enough water there? Sure you can't interfere with somebody and that sort of thing. So a future use permit is not a guarantee. You're kind of holding your it's a place in mind, yeah, and in western water law, where first in time, first and right is a big deal. Having a future use permit with a date from 1960 is good. So that is part of that first. That is part of it, right, okay, yeah, that that accounts once you apply, your application date becomes your sort of seniority date, and so you have that as an issue. Are there examples of somebody who did this in the 1960s and is cashing out? Now, I'm not going to call it cashing out. I will. I will use the water development district following, I suspect, as a result of back in the mid 70s, there was a huge drought. The Big Sioux River in Sioux Falls was blown dry 1976 okay, you could walk across it without getting wet. It's not because it was shallow. It's just there was simply no water there. But anyway, some changes were made. And back in the mid 70s, what are now called the water development districts, were added to the list of entities that could make a future use. The East Dakota conservancy sub District, which is what we were called back then, came in, and we put in a reservation for 400,000 1000 acre feet per year of Missouri river water. Now I'm trying to think off top my head how to convert that, but that's about four 50 million gallons a day of water the Lewis and Clark system is pumping 44 million gallons a day. So not God, we our reserve was for a huge amount of water. And to put that in perspective too, an acre foot is like one acre of land buried under a foot of water. So 4000 acre feet is 4000 acres under a foot of water, yeah, if you could picture that, yeah, it's a unit. I mean, we use gallons per day and cubic feet per I mean, all these different units in the water allocation. It's usually, yeah, acre feet per year, okay? And as Travis said, it would be enough water to cover one acre, one foot deep, and, yeah, we reserve that. That reservation had to be approved by the legislature. If you ask any permit for more than 10,000 acre feet per year has to be approved by the legislature on the last two sessions, first the Lewis and Clark regional water system, and then in this earlier this year, the Western Dakota regional water system came in and got legislative approval for about 22 requests each About 20,000 acre feet. But anyway, we've, we've held that permit since the 70s. About four years ago, we transferred 52,500 acre feet of that to the Lewis and Clark system. Okay, so you can move future use perm. You could, yeah, you can, yeah, two other entities to other entities. They still have to do all the same sorts of things. They can't just pour it in the street. Do they use it? Have to purchase these Is there any monetary piece to that? Or is it just a straight the the future use permits you pay every for a regular license. And Chris, I've never worked for that, because we're not a public water supply. There's kind of a one time fee, okay, for the and it's based on the amount of water and so forth. For the future use permits you every seven years, your request is reviewed by the water management board, the staff of the D and our water rights program, and then the water management board, and if your permit is considered to be still appropriate, and you continue, then you have to pay a fee. The fee is 10% of the going rate. I'm trying to think our current holdings are about 91,500 acre feet. I want to say that cost us about $7,500 every seven years. Okay? And the board looks at that as an insurance policy. We're buying that set. We've got that 77 data, and so that has to be reviewed in the case of a transfer, there's no, I don't all that involved was paperwork. Okay, so we transferred 52,500 acre feet to Lewis and Clark. I had to fill out a piece of paper. Sure. I don't think there was a filing fee or anything like that. The water rights looked at it and said, Yeah, okay, that looks good. Bingo. Now what it meant is, you know, when that seven years are up, Lewis and Clark is going to have to pay that 10% the 10% fee on that amount of water, okay, if they want to continue to hold on to it, just for curiosity sake. Along those lines, you know, you know western US, you know water rights are tied to more property rights, and there's a monetary value to that. But in South Dakota, because it's a public trust, I was curious, could a guy just start an LLC by get a bunch of future use permits, and then say, Okay, I'm going to sell this to city of Sioux Falls for$50,000 like a domain name. Yeah, is that a thing? No, in the at least in the future, you said the future, you say it's basically, and I don't have the code at my fingertips, but the list of entities that are eligible to get a future use permit, as opposed to a license, which is use it right away, is pretty short, and it's basically, you need to be an honest to God, public water supply. Okay? And do this public, yeah, for the because of public benefit or whatever. Now the the. Two exceptions are the state, what's called the conservancy sub District, which would be the State Board of Water natural resources, which is sort of the big water holding group, and then the remnants, which are the conservancy sub districts, which are the water development so we, we are something of an exception. We do not provide water to anybody, right? We never have, and I don't anticipate we ever would, but we are allowed to hold future use permits, presumably, you know, on behalf of our constituents. And so we hold, like I said, we have holdings now. My board is in. We will be talking again at our board meeting in a couple of days about reviewing our current holdings and looking at maybe expanding to address future needs to when that was part two of a four part conversation with Jay Gilbertson here on rivers and rangelands the podcast. Stay tuned for parts three and four. Up next, we're gonna seek understanding about water quality, and they really ask what our expectations are for water quality, up next, and it's going to be all your burning questions around E coli, what's what's polluting our rivers? So it's a really good conversation. Yeah, first year. Like rate review, share, give the stars, give a comment, send us an email, and thank you to Jamie Lynn for providing me music for season one of rivers and rangelands. I love this song and makes me cry every time, someday the Lord will break me and I can stretch out every limb, embrace these bones against the coming that only end all will. The end. We can with, right? We'll do we'll lay it down. We'll lay down a track. In the next part, Back Page, we're really gonna dive into, I guess, I'm saying dive into everything. Why? No, I mean it's water. Pun intended. We're gonna dive into it. We'll just let the train have it say for a minute. Yeah. In the forest, making me cry. Eyes, cross and.