Non-Meandered Waters Resurface In South Dakota Capitol

Jan 18, 2018

Following a state supreme court decision, a South Dakota Game, Fish, and Parks sign restricts public access to a non-meandered body of water in Day County last year.
Credit Lee Strubinger / SDPB

On Thursday, a Senate legislative committee passed an extension of what some call “the open waters compromise.”

Lawmakers met last summer to implement rules for public access to those waters.

For landowners it’s about property rights. For recreationists, it’s about water rights.

The decades long debate is far from over.

The issue of non-meandered waters in South Dakota has garnered two state supreme court decisions, called for several summer study sessions and gathered lawmakers last summer for a special session vote.

What’s occupied both the legislature and the courts is the notion of what is beneficial use of water situated over private land.

In the early 90’s, heavy snow and an unusually wet spring flooded several sloughs that had previously been farmland in Day County, and surrounding areas the northeastern part of South Dakota. Those sloughs turned into lakes and haven’t receded for decades.

With these newly formed lakes also created a rift between two groups in South Dakota. Landowners want their property rights honored. Recreationists say they have a right to access that water, which is held in public trust by the state.

“Well, it’s my opinion that all waters are owned by the people of the state of South Dakota.”

That’s Zachery Hunke of Watertown. For him, and other sportsmen and women, the issue is about water rights. That puts the state Game, Fish and Parks between the hunting and fishing community, and landowners. Historically, those two groups have been at odds since the new lakes formed.

Lawmakers have to find the balance between all three so landowners feel respected, anglers have access to waters that touch public right of ways and GF&P has the framework to operate under.

Lawmakers met for a special legislative session last summer to craft rules and put them into law. Those rules say these lakes are open for public recreation, unless a landowner says otherwise.

Those with the South Dakota Wildlife Federation say those rules overstep the constitution. The groups wants to institute a due process to open up any closed waters. Hunke agrees.

“When it comes to the recreational use of surface water, I feel that it’s the state of South Dakota that benefits from our legislative body clearly stating that recreation is a beneficial use of the water,” Hunke says.

Hunke says he and his son fish in many of the non-meandered lakes that are open.

Lawmakers want to extend the rules they put in place over the summer to 2021.

Those rules are something Secretary of Game, Fish and Parks Kelly Hepler, has implemented. He says, so far, the new law has opened up a dialogue with landowners in northeastern South Dakota. Those talks have historically been little to non-existent.

Hepler says he wants those conversations to continue.

“We need to have some of those victories, those small discussions. As I mentioned in testimony, this is not going to happen overnight. Through time we keep building these types of relationships, and we will. And I think, hopefully, this can be a healing process coming out of the legislative session,” Hepler says. “Those discussions will happen on some potential amendments, whether or not those will happen, I don’t know. But as long as these conversations are respectful, then there’s something we can work on.”

According to Game, Fish and Parks, there are 17 lake closures today. Of the 56-000 acres of non-meandered water with known fishing, 4,500 acres are closed off. Two of those lakes close, Hepler says, are considered premier fishing lakes.

Both the GF&P, as well as the Governor’s office say they want time for the law and rules put in place to play out.

Some landowners in Day County say they’re pleased with the rules put in place.

Frank James is a Day County commissioner. He, like most landowners in Day County, have had their property and farm ground flooded since the early 90's.

He says there will always be hunting and fishing on the land, but it’s a question of who controls access.

“I think it should be the landowner, the entrepreneurial person that pays the tax on the ground should control the access to the property," James says. "It’s that simple. If you pay the tax, you control the access.”

James says he and other landowners want to see the rules play out as well, and let Game, Fish and Parks negotiate with landowners for access to lakes that are closed.

“We’re at least talking. They were a bad word when I was brought up. We’re talking, and that’s good, I’d say," James says. "I’m actually kind of impressed with them. Times change and we have to move on. Yeah, we’ll work with them.”

Landowners are tasked with closing off any lakes they don’t want sportsmen and women to fish. That means installing buoys and signs closing the waters off. James says those signs cost around $13 each.

One sign that’s evident is lawmakers will likely introduce more legislation this session surround the issue of non-meandered bodies of water.

But if recent weather patterns continue, little snow and dry summers, the debate could all be moot for now as the waters are receding from public right of ways. For landowners, that means more land to farm.