Argus Leader: ELPC’s McLarty Calls Vetoed Bill in S.D. Loss for Impaired Big Sioux River

By John Hult, Argus Leader

The House of Representatives came up 10 votes short Tuesday in an attempt to override Gov. Dennis Daugaard’s veto of a voluntary conservation measure.

The 37-28 vote on the House floor sustained Daugaard’s veto of Senate Bill 136, which would have offered tax incentives to farmers who plant grassy buffer strips between their crops and bodies of water.

The bill passed the House 58-9 three weeks ago, but the support withered in the face of Daugaard’s veto letter last week.

Had the measure passed with a two-thirds majority in both houses, farmers would be able to ask that 50-foot buffer strips planted with perennials be taxed at a lower rate than the ag land surrounding it.

Backers of buffer strips say the practice of placing absorbent foliage between the fertilizer, manure and dirt that runs off during heavy rains is a simple and natural way to protect the state’s waters for human and animal use.

The Senate pushed the measure to the House with a 32-1 vote earlier in the day, but the representatives couldn’t muster the support to overcome concerns about the measure’s constitutionality and impact on the property tax base, Opponents, repeating some of Daugaard’s points from his veto letter, called the proposal half-baked.

Several representatives argued that the proposal needs the attention of the Ag Land Task Force, which could define which bodies of water would be eligible for the tax breaks.

“I am very concerned with having Department of Revenue set up the rules for what streams and creeks there would be,” said Rep. Lee Qualm, R-Platte.

Rep. Tim Johns, R-Lead, spoke twice against the measure, saying the constitutional questions raised by Daugaard had validity. Normally, land is taxed for its “highest and best use,” which would be as crop land.

“It is of questionable constitutionality,” Johns said.

Rep. Justin Cronin, R-Gettysburg, painted the measure as a backdoor acceptance of the Environmental Protection Agency’s “Waters of the U.S.” rule, challenged in court as overreaching by several states, including South Dakota.

Cronin said the impact on taxes and land use is too uncertain to support.

“There’s no rules,” Cronin said. “This is way too much, way too fast.”

Supporters called the constitutional question a smokescreen. Daugaard asked the South Dakota Supreme Court to rule on the potential constitutional issue in an advisory opinion, but the court punted, issuing a ruling that said the questions didn’t rise to the level of those needing immediate attention.

“If they had a significant problem with the constitutionality of this bill, they could have taken it up and offered an opinion,” said Rep. Lance Russell of Hot Springs.

The supporters called the measure a “common sense” incentive program worthy of support by virtue of its voluntary nature. In Minnesota, buffer strips are now mandated by law, said Rep. Lee Schoenbeck, R-Watertown, and Iowa is dealing with lawsuits over water quality.

“It’s not Minnesota, where there’s severe legislation. It’s not Iowa, where there’s severe litigation,” Schoenbeck said.

Matt McLarty, a policy analyst for the Environmental Law and Policy Center in Sioux Falls, called the failed override attempt a loss for the Big Sioux River. The river has been tagged as an impaired water body for years, and groups such as his have teamed with hunting and conservation groups in hopes of lessening the impact of upstream agriculture without hitting farmers in the wallet.

The number of representatives who flipped after the veto letter was “baffling,” McLarty said, given that the voluntary buffer strip bill was a compromise with bipartisan support.

“We can only truly begin to restore the health of the Big Sioux River when Urban and Ag starts working together on common sense solutions, and by creating a voluntary system to build up buffer zones along the watershed, we could have begun that process,” McLarty said.

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