A decades-long battle over South Dakota water may finally be at an end. Jodie Anderson, Executive Director of the South Dakota Cattlemen’s Association discussed with the American Ag Network the history of the non-meandered waters legislation, and what landowners need to do now.
“For a number of years, we’ve had an issue with flooded private property, particularly in north-eastern South Dakota. There, we’ve had a large number of dry years and then now in the last 20 or so years it’s been exceptionally wet,” Anderson said. “Smaller water bodies have grown and flooded several thousand acres of private property.”
The issue of how to address recreational use on those water bodies was a point of contention for several years. When the lines and maps were initially drawn decades ago, the waters now in question were much smaller.
“Many of these were just puddles or sloughs or whatnot prior to the several years of exceptionally wet years that we had, which caused them to grow significantly in size and therefore somewhat in accessibility,” she said. “The friction has been building now for probably 20 to 30 years.”
At the base of the problem, a 2004 South Dakota Supreme Court decision that all water in the state belongs to the public. The decision in the Parks v. Cooper case determined that the water is a public trust and is in state control, even when on private property.
Anderson says the issue went to the lawmakers and the courts, for years of a legal tug-of-war.
“It’s kind of bounced back and forth between the legislature and the courts. Ultimately, we ended up last summer in special session,” she explained. “Our legislature implemented what we call the Open Waters Compromise.”
Legislators made it possible for private property owners to restrict some access to waters on their land. According to the Game, Fish and Park Commission: “The Open Waters Compromise strikes a balance between the public’s interest in recreation and respect for private property rights. The bill that passed was crafted by sportsmen and women, landowners, attorneys and policy experts.”
However, last summer’s fix was neither perfect nor permanent. The bill that was originally passed had a three-year sunset date. During the special session last summer, the sunset date was moved to just one year, summer of 2018. The issue went back to legislators this session, and Anderson says the organization and producers are happy with the results.
“There were some efforts to sort of unwind the compromise that was put into place last summer, and we’re please that those efforts did not come to any kind of successful resolution,” she said. “In fact what did happen was that the sunset date was removed altogether.”
Land owners will need to go through an application process with the Game, Fish and Parks Commission to have the waters on their land restricted from public use.