PAID ELECTION LETTER: Missouri's Water Wars: Legislators push controversial bills on water exportation

Let's talk about water bills in the Missouri Legislature in the past session. We'll connect the water drops. There are several bills, but primarily two open the door to the topic of water exportation across Missouri state lines. They were both sponsored and offered at about the same time along with other bills and amendments, in what seemed to be presented in a "panic to pass" atmosphere.

Water is a big deal in Missouri. It is a BIG DEAL, because it is vital to our state's number one industry — farming, and because our eastern border is the Mighty Mississippi River.

Did you know that all Mississippi River border states, on the east or west sides of the river, are riparian water right states, just like Missouri.

What exactly does it mean to adhere to the riparian doctrine? In plain English, riparian doctrine means that the water rights belong to those landowners whose land physically touches a river, a pond or a lake. The riparian landowner has a right to the water, with some limits usually. Generally, it cannot be unreasonably detained or diverted. These riparian rights do not expire if the water is not used, and in most cases, the riparian right is transferred when the land is sold. States usually define parameters such as domestic use of these waters: water needed for gardening, grazing, family use, necessities, etc. In most cases also there are no permits given out by the states. Another "usual" acknowledgment or consideration is the use of water and how it affects your neighbors' rights. Riparian water rights allow for a remedy if your use creates an adverse effect on your neighbor's water rights/use/availability — that is by adjudication through the courts.

As aforementioned, the riparian doctrine is in effect from both sides of the Mississippi River and extends to all states as far as the Atlantic Ocean. States neighboring the western Mississippi River border states are "transition" states for the most part and offer a hybrid legal definition. While the "arid" states farther out west fall under the doctrine of prior appropriation.

The doctrine of prior appropriation offers no benefit to riparian landowners. Prior appropriation doctrine is often described as, "first in time — first in right." Why? In this case, the right to use the water is allocated (or appropriated) by a permit, and the first person "permitted" to divert or use water has priority over those who come later. So under prior appropriation doctrine, the water is publicly owned and the right to use it is administered by the state.

SB 782 sponsored by Sen. Bean and HB 2153 sponsored by Rep. Burger; though neither bill specifically refers to this terminology, they certainly resemble the doctrine of appropriation. Water permits would be issued by the director of the Missouri Department of Natural Resources. This director is not elected. He/she is appointed. Both of these allow exportation by permit to special interests to export water.

Under prior appropriation doctrine, the water use permit allows the user to divert a specific amount of water, at a certain location for a specified (beneficial) use. The permit has a definite date of priority. If there is not enough water to satisfy all permits, the earliest permit (senior water right) has priority over all later permit holders (junior water rights). In some states, appropriated rights may be sold or transferred separately from the land. (This reminds me of the boat docks on Lake Hamilton in Arkansas. The docks, because of scarcity, are sometimes sold apart from a real estate sale.) Prior appropriation generally expires if they are not used within a specified period of time. This prevents an entity from locking up a resource or saving it for a later date.

One must ask: Are there permit seekers wringing their hands at this very moment, ready to punch their ticket on the "permit train" and be the "first in time — first in right" holder in Missouri? This question has not been answered — nor will it be discussed or disclosed.

Here is why — MoRS 256.410 requires any major water user who withdraws or diverts water from any water source to file a registration document. Representative Diehl's House Bill 2669 addresses the law and adds a section (3.) which denies any disclosure to the public, requesting any records of such water user(s) or registration information. Translation: No Sunshine requests will be answered. I guess in the famous words of Jack Nicholson to you, Joe Public, "You can't handle the truth!" We can't ask — "Who is exporting Missouri's water?" "How much water are they exporting?" "To whom are they exporting water?" And "At what price are they being paid for our water?"

Why the cloak of secrecy? Why deny the public of any information at all?

Also interesting in both Bean's and Burger's bills is section 2. which excludes the requirement of a permit to "public water systems", such as Missouri American Water Corp., which withdraws water from any water system and exports it within the digit hydrological unit code. The hydrological unit could be to a destination across state lines. Water lobbyists negotiated this section to be included in both bills, exempting their special interest from the permit requirement.

These two bills are not just unnecessary, but they add more bureaucratic red tape, overreach and expense. They actually open the door to water exportation, abuse and corruption.

Furthermore, an amendment written by Rep. Taylor to HB2669 HCS establishes the "Waterways and Ports Trust Fund" and authorizes that the fund may "also receive any gifts, contributions, grants, or bequests from federal, private, or other sources." Using Bill Gates, or better yet the CCP, as the ultimate evil-intenders, billionaires or political enemies, with some special interest and self-serving or ill intent could possibly take advantage of our water resources through this statute to control our ports and/or water resources.

The fact that so many legislators have chimed in supporting water bills all of a sudden would suggest that there are specific plans in the works. Farmers in Missouri irrigate their farms. Cattlemen water their livestock. Water is vital. Who is getting hoodwinked here? Be careful what you ask for or support —you just might get it.

The Standard Democrat titled an article "Southeast Missouri Regional Water District Watches Over Water Needs", July 26, 2019 by David Jenkins.

It was reported, "A few years ago the political forces in the state, as requested by the water district landowners, rallied and passed a law that Southeast Missouri water could not be transported out of our state by any means." I could not find that specific language. However, House Bill 2669 (referred to previously) could be the law of which the article writes.

Again I ask — why do we need to "permit" water exportation out of the state? Sponsors of the bills claim that their legislation prevents exportation. This is certainly not the case. Like many issues — water would be "managed" not "protected." They allow it under bureaucratic permits.

Missouri is blessed with an abundance of water resources from surface waters to the pure aquifers below ground. Why all the rush to permit exportation?

If Bill Gates buys land next to yours and makes a very large donation to your local elected officials, or state office holders who appoint directors and boards — just who do you think will have the "first in time — first in right" position? Will the billionaires be permitted, so to speak, to export our wonderful, beautiful, plentiful natural resource?

What about a pipeline to transport water? Neither Bean/Burger bills mention the obvious transport mechanism — a pipeline. Rep. Burger talked to me extensively about the size of a pipe being amended on his bill — yet in the final version of the bill, which passed the house, there is no mention of a pipeline. Consider, however, Rep. Murphy's amendment 4344H02.07H to HB2153 that defines a pipeline. The pipeline language came in a different bill. This incrementalism is a common practice and in my opinion does not offer transparency to the public.

Consider also the obvious question of eminent domain capturing your land for the construction and operation of a pipeline? Would it be cost-effective for water exporters to truck Missouri water across the U.S.? A pipeline for water exportation was discussed back in 2020, as a matter of fact, in a B Magazine article by Jon Rust.

Missourians, please — we need to pump the brakes, not the water. We need caution. And we must exercise diligent review and research on the steps offered to change our historic use and rights regarding Missouri water before we set the table for unwanted guests who have proven to be hoggish. What is the rush? Could the rush be a special interest and an election year?

MoRS Section 256.410 (1983) already requires "water movers" to register with the state. (Line 28-33.)

Farmers in Idaho have recently been forbidden the right to irrigate over 500,000 acres of farmland by their director of Natural Resources. Oddly enough, the cobalt mining operation in the same region was given approval to operate their mining 24/7 with no water restriction. (Cobalt is mined in Missouri as well.)

Not to present a problem without the suggestion of a solution.

If the true intent of our legislators is to stop the exportation of our water, Sen. Mike Moon offered this simple amendment or suggestion to Sen. Bean: simply sponsor one bill that states the following: There will be no exportation of Missouri water across Missouri state lines. Period.

Now you may ask, "Why bring all this up? The Bean/Burger bills did not pass." I bring it up because I think Missourians should have the complete picture of what happens in Jefferson City in whole and in "parts." I think we should demand transparency.

When you put it all together, it is fairly straightforward. Not to fully disclose all of the activity around the topic rightly creates suspicion. One would have to believe that there is more here than is being revealed to the citizens. Full transparency is not being practiced. To give the bill sponsors the benefit of the doubt, perhaps they were not aware of all of the other water-related bills and their effect on their sponsored bills. This is their job, isn't it though? Considering all the billionaires and corporations that pay lobbyists to influence our elected public servants, the time is now to see clearly through the crystal clear issues of Missouri water.

KIM G. SWARTZ, 3031 Keystone Drive, Cape Girardeau, MO 63701