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Public water on public land is open to the public. But what about private land now covered by public water?

Navigating ‘Non-Meandered” Waters S.D. Legislature put off for another year

by Doug Card, Britton Journal, additional reporting by Heidi Marttila-Losure

Public water on public land is open to the public.
But what about private land now covered by public water?

That’s where things get murky.

South Dakota legislators looked at this issue in the 2014 legislative session, but “it’s in limbo,” said state Sen. Jason Frerichs. “We didn’t solve anything this past session.”

Frerichs said he has advocated for finding a resolution for the issue, but he could tell that the legislation that was resulting from the process this year was not going to lead to a compromise agreeable to all the stakeholders. He pushed to table the issue, which is what happened.

Two factors have led to the conflict. First, water levels have risen considerably in the past 25 years, and as a result, many lakes and sloughs, especially in the northeastern part of the state, have grown considerably, flooding thousands of acres of private land. Many landowners believe they should retain control over their flooded land.

The courts, however, ruled differently. The South Dakota Supreme Court concluded in Parks vs. Cooper in 2004 that the Legislature has the obligation to decide how nonmeandered bodies of water are to be used in the public interest.

The general thought has been that if water can be accessed from a public road, sportsmen have the right to use that water, but it’s not clear-cut.

“On the surface it is landowner vs. sportsmen, but it’s a lot more complicated than that,” said Scott Lindgren, Game, Fish and Parks regional supervisor. “We really don’t know how it is because the law is not really clear. Sportsmen are confused because water is public. It’s a big challenge.”

Mark Ermer, regional fisheries manager, said at a meeting in Britton last fall that Bitter Lake in Day County is a “poster lake” for the water issue. In 1991 it covered about 3,500 acres and was only about 3 feet deep, too shallow to be considered a viable fishery. Now it is 18,000-plus acres, with over 8,000 of those acres of water covering private land, and one of the top fishing lakes in the northeast corner of the state.

When the state was originally surveyed in the late 1800s, a lake was considered “meandered” if it was too deep to walk across and surveyors had to go around it. Those lakes, typically more than 40 acres in size, were considered part of the public trust. Smaller lakes, or areas that weren’t wet during the time when the surveys were done, were considered “nonmeandered” waters and were sold as part of private land. It is possible the surveyors didn’t have a clear idea of the changeable nature of the Prairie Pothole Region when they made these designations.

“Water never stays the same,” said Ermer. “We know we’re on a rollercoaster ride, and it’s going to continue. Historically, water levels go up and down. But after developing these lakes for 15 years it would be a huge loss for us to have some of those waters taken away.”

Frerichs said he hasn’t had any of his land affected by this issue, but he tries to sympathize with the landowners.

“They really get hit with this the worst,” Frerichs said. “And in the end they have virtually nothing to gain from all this increased activity out there in their area. But at the same time, I have yet to hear a single landowner say they want those fish to winter kill, that they don’t want the resource utilized… They don’t charge (for people coming on their land). They just want people to ask, and they want people have that respect that at one time it was their pasture.”

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