Ganje: Senator White’s water bill best of the lot

David Ganje

by David Ganje
Ganje Law Offices

Senator White is the prime sponsor on a nonmeandered water bill (SB 199) intending to correct several of the errors found in the 2017 summer session statute on nonmeandered waters. With the corrections I report below, Senator White’s pending bill is the best of the lot among the water bills filed in the 2018 session. Many are the parties who claim to know property rights and who advocate the rights of sportsmen, but few are the parties who have bothered to give serious study to these important but legitimate conflicting interests.

One of the several new 2018 bills filed creates a whole new government committee to deal with water. This bill establishes a Legislative Water Management Committee. This new government body would have no real power except to “introduce legislation and (make) policy recommendations.” South Dakota has a sad history of creating, terminating and ignoring water bodies, agencies and committees. Any new committee is a proposed remedy without any real authority. New bodies, new agencies, new committees, new studies do nothing but delay and distract. In my adult lifetime the state has maintained the following smorgasbord of agencies with authority over water issues: the State Water Management Board, county drainage commission statutes, irrigation districts, water user districts, water project districts, water development districts, conservation districts, and watershed districts. The results are often less than successful.

The 2017 law was principally written by lobbyists. It passed, after much struggle, in the special session. It is now the law, but it has a very short shelf life. This very short shelf life was placed in the law for a reason. That reason is simple. The law is a mish-mash passed in an urgent attempt at compromise. In a prior opinion piece found in the Farm Forum, I lay out some of the errors in clear points. Several of these errors are addressed by Senator White’s pending bill. It is too late in the process to seek perfection, so let us get practical. What is right and what should be corrected in Senator White’s bill?

Mr. White’s bill officially declares that, “Recreational use is a lawful and beneficial use of the surface waters of this state.” This declaration is necessary in the law. Otherwise sportsmen could not use the waters. This requirement was utterly ignored in the 2017 law, even though the state Supreme Court told the legislature that this was needed. This declaration firms up all parties’ rights.

The bill gives all property owners whose lands are flooded the right to declare a setback on the use of the waters from their property. The 2017 law (among other anomalies) created two classes of property owners – those who could exercise certain property rights and those who had the burden of petitioning the state in order to exercise the same rights. Uniform property rights among all owners were recommended to the 2017 special session several times by myself and others. This property safeguard was nevertheless omitted in the 2017 law. The proposed setback right gives property owners protection for dwellings and confined livestock.

But Senator White’s bill allows for setback from ‘permitted concentrated animal feeding operations.’ This is a puzzling oversight that should be corrected. Such a restriction would exclude active, smaller operators who may not be required to obtain CAFO permitting from the government, but who should nevertheless also be allowed to exercise property setback rights the bill proposes. I have submitted a suggested correction to the senator.

Senator White’s bill requires property owners who wish to close off certain access to waters lying over their private property to petition the GF&P Commission before such a closure could be granted. In civil law in South Dakota, as well as in jurisdictions using Anglo-American law, access to property or access which affects property rights can be legal if granted by consent of the owner (except in the case of government imposed condemnation of property). Consent by the property owner is an essential element in granting access. Consent given by a third party or a government is not the test.

The current nonmeandered law as well as the proposed SB 199 provide that any approval to restrict access to waters over a landowner’s property and near a landowner’s surface lands is determined by the GF&P Commission. This is contrary to the long-established law of property rights. The burden of proof, when restricted access is requested by a landowner, should be upon the GF&P Commission once a landowner files a petition. I have submitted practical straightforward language to Senator White which will correct this problem. I would anticipate the legislature’s favorable acceptance of my suggestions. Senator White’s bill is the better choice among the seven or so proposed bills on the yet unresolved subject of nonmeandered waters.

David Ganje practices in the area of natural resources, environmental and commercial law.