7 months into nonmeandered law, some want changes

Elisa Sand
Farm Forum

Seven months after a South Dakota’s nonmeandered waters law went into effect, it’s tough to measure its effect with hard numbers.

Private property owners have elected to close several nonmeandered lakes in the state, but none with a history of substantial recreational use.

Lawmakers passed the nonmeandered law during special session last summer, but it’s set to expire at the end of June. That means legislators need to decide on an extension or modifications. Nonmeandered waters are bodies of water that have developed in the state since statehood and, for that reason, weren’t originally mapped.

Members of the Legislature are not all of the same mind about what to do with them.

Two bills have been filed, both proposing a three-year extension of the law until July 2021.

Gov. Dennis Daugaard wants an extension.

One local sportsman, and some lawmakers, for that matter, wants changes.

Ryan Roher of Aberdeen said all waters in South Dakota should be open to public recreation. But that’s not the case with nonmeandered waters.

Under the law, there are two categories of nonmeandered waters — 27 lakes with public access or a history of public use, and the remaining nonmeandered lakes.

The 27, selected because they were those on which the state Department of Game, Fish and Parks managed boat access, are to remain open to the public. But landowners along the nonmeandered bodies can close them.

That’s not to say they’re all completely surrounded by private property or don’t have any access. Arden Petersen, special assistant to GFP Secretary Kelly Hepler, said some might be accessible from road rights of way or waterfowl production areas. Still, others might be favorite fishing spots.

Petersen said when it comes to restricting access to the 27 lakes, landowners must petition with the GFP Commission.

So far, two landowners have. The petition for Cattail-Kettle Lake in Marshall County was denied. The petition for Goose Lake in Codington County will be heard in March.

Property owners have closed, in part or whole, 16 lakes in Marshall, Day, Clark and Kingsbury counties that aren’t on the list of 27, according to a GFP map. Seven are in Day, one in Marshall.

Roher said it’s deceiving to say there’s only one lake in Marshall County that’s closed, because it’s actually multiple lakes surrounded by property owned by the same person.

Petersen said from the GFP perspective, it’s one lake with one landowner involved.

“It depends on the definition of one water body,” Petersen said. “At times, they’re connected.”

Originally from Marshall County, Roher said his family used to frequent that lake.

The 16 closed lakes span 4,600 acres, Petersen said.

“Most of them, while they may have fish in them, are not actively managed by the department,” he said.

The number pales in comparison to the total number of nonmeandered bodies.

While lakes vary in size from year to year, Petersen said GFP officials estimate there are about 2,300 nonmeandered lakes in the state that are larger than 40 acres. Include the lakes smaller than 40 acres, he said, and there are about 29,000.

Closing a lake doesn’t mean no access ever. Petersen said a landowner can still grant access and some have included their contact information on the signs issued by GFP.

“That’s up to the landowner if they want to do that,” he said.

As legislators look at modifying the law, Roher said he’d like to see a petition process available that allows a closed lake to be reopened if it can be proven there’s a history of recreational use. He said he’d like the 660-foot safety zones that restrict hunting near occupied structures to apply to fishing, too.

State Sen. Jeff Partridge, R-Rapid City, in recent days has said that some senators are interested in a uniform process for determining which waters should be closed. He said they generally don’t like the two standards and want all waters to be legally designated as open, with landowners allowed to ask for closures. He also mentioned a 660-foot safety zone in all directions from a structure and a policy limiting how long a body of water could be closed before another application would have to be made to keep it from opening.

Road vacation requests

Roher said township action to vacate roads is another way that access to lakes can be restricted.

According to public notices, Troy Township in Day County has approved a resolution to vacate several township roads.

The Day County Commission is also considering a road vacation request that would abandon 2 miles of 152nd Street, 2 miles of 422nd Avenue and 1 mile of 419th Avenue.

Day County State’s Attorney Danny Smeins said the commission agreed to move forward with the request in December, but that was contingent on discussion with the South Dakota Department of Transportation and approval of a resolution. The request also has to be granted by DOT because federal funding is used to improve the roads.

He’s since met with the DOT and said commissioners have some factors to consider before making a final decision.

Smeins said vacating the stretches of county road would mean they would not be contiguous farm-to-marketed thoroughfares. So, they might no longer be eligible for federal transportation money. While there would be no immediate fiscal penalty, he said it’s something commissioners need to ponder even though portions of the roads are now under water and inaccessible.

Area impact

Roher said he’s heard from an area business that doesn’t want to be identified that the nonmeandered law has resulted in less revenue.

Statewide statistics show a decrease in fishing license sales. According to GFP, resident licenses sold dipped from 81,873 in 2016 to 80,699 in 2017. Nonresident fishing licenses also decreased — more substantially — from 89,645 in 2016 to 84,187 in 2017.

Fishing license data from North Dakota shows sales have held steady or ticked up slightly in recent years.

Petersen concedes there might have been a general decrease in fishing activity in South Dakota in 2017, but notes there were also a few months during which public access to some nonmeandered lakes was restricted while the Legislature drafted its law regulating access.

In South Dakota, state sales tax statistics don’t list fishing in its own category. Taxable sales for fishing, hunting and trapping are reported together. Those sales show an increase from $15.8 million in 2016 to $16 million in 2017.

Other state rules

North Dakota’s laws about nonmeandered bodies are a little more straightforward.

Like South Dakota, all waters are held in public trust. In North Dakota, however, a lake is a lake. If there’s public access, anybody can use it, said North Dakota Sovereign Lands Manager Jerry Heiser. Otherwise, landowner permission is required. But there’s no petition process for closure.

Minnesota rules are similar. Assistant State Climatologist Pete Boulay said a person cannot own water, but if it’s surrounded by private property, permission is required to access it.

Reporter Bob Mercer in Pierre contributed to this report.

Closing a nonmeandered lake

• The landowner notifies the state Department of Game, Fish and Parks so the lake can be placed on a map showing the area that’s closed.

• The landowner receives “lake closed” signs from GFP that must be placed a maximum of 660 feet apart. They are purchased and issued by GFP because the department also issues other signs that restrict access.

• If needed, the landowner is required to purchase and place buoys so sportsmen and sportswomen know the portion of the lake that’s closed.

• GFP also starts conversations with the landowners to see if public access to the closed lakes can be negotiated. To date, no access agreements have been established for the lakes that have been closed.

Source: Arden Petersen, special assistant to the Game, Fish and Parks Secretary Kelly Hepler