Rules set for landowners to restrict nonmeandered waters

By Bob Mercer
Farm Forum Correspondent

SIOUX FALLS — After a bit of fine-tuning, the South Dakota Game, Fish and Parks Commission approved on Sept. 8 a special rule that lets its members decide who can use several dozen lakes.

The rule allows any landowner along 27 lakes to ask that public water over private property be restricted from the public’s recreational use.

The Legislature identified the lakes by name and location in the law passed in the June 12 special session.

They are defined as nonmeandered. That means territorial surveyors didn’t officially designate them as permanent waters prior to South Dakota’s 1889 statehood.

Jon Kotilnek is a new lawyer for state government’s GFP who began work after the commission proposed the rule two months ago.

He added a requirement that adjoining landowners receive notice when a petition is filed and rewrote the proposal to flow smoother.

“Substantively, nothing has changed,” Kotilnek explained to commissioners on Sept. 7. “Largely, it’s just restructured.”

Later on Sept. 7, he added an appeal provision that commissioner Gary Jensen of Rapid City wanted as an additional safeguard.

“We believe what you have in front of you right now will work,” Kotilnek said on Sept. 8.

The commission agreed, right down to Jensen accepting Kotilnek’s suggestion that the phrase “reasonable time” be removed as meaningless.

The new law came in the wake of the South Dakota Supreme Court declaring in a Day County case that neither landowners nor recreational users had a superior right to public water over private land.

The justices said only the Legislature could break the tie. GFP took the issue up a notch by closing public boat ramps on some of the nonmeandered lakes. The Legislature’s Executive Board appointed a 15-member task force to recommend a solution. That led to the June 12 special legislative session.

The new law identified 27 nonmeandered waters, known as Section 8 basins because of their spot in the legislation, that are to be open unless landowners ask the commission to restrict or close them.

The new law also gave landowners authority to close any of the other nonmeandered waters across South Dakota, so long as they notify GFP and prominently mark the waters with signs or buoys.

Another provision directed the commission to set rules, so an owner of private property underlying any of 27 nonmeandered lakes listed in the law could seek permission to restrict recreational use of the water overlying the owner’s private property.

The law designates authority to the commission to grant, deny, or modify the petition based on seven factors.

Those are privacy, safety, “substantially affected financial interests” of the owner of the private property underlying the water, history of use, water quality, water quantity and the public’s interest in recreational use of the water.

Date chosen for Marshall County lake petition

In a related action on Sept. 8, the commission chose Nov. 2 as the date for the official hearing on a petition to close, year-round, part of Cattail-Kettle Lake in Marshall County.

The commission had tentatively chosen Nov. 1, but changed the date to Nov. 2.

Follow @pierremercer on Twitter.

27 lakes

• Casey’s Slough, Cottonwood GPA, Dry No. 1, Dry No. 2, Round and Swan in Clark County.

• Deep and Goose in Codington County.

• East Krause, Lynn and Middle Lynn in Day County.

• North Scatterwood in Edmunds County.

• Three Buck in Hamlin County.

• Bullhead, Cattail-Kettle and Opitz in Marshall County.

• Island South in McCook County.

• Keisz in McPherson County.

• Grass, Loss, Scott and Twin in Minnehaha County.

• Twin in Sanborn County.

• Cottonwood and Mud in Spink County.

• Cottonwood in Sully County.

• Dog Ear in Tripp County.