The nonmeandered waters legislation passed in yesterday’s special session of the Legislature is so bad—
—how bad is it?—
—it’s so bad that the biggest argument the House and Senate had about it was whether it should die four years from now or just one.
The Legislature took ten hours to deliver for Governor Daugaard’s signature the “Open Waters Compromise,” which is still is no compromise and which authorizes the unappealable closure by private parties of far more public water than it opens. In those ten hours, there was less substantive discussion of the core of the conflict—private property rights versus public ownership and use of waters that have flooded farmland—than there was repetition of how impressed legislators were with themselves for working so hard and so fast to put this bill forward (after 25 years of legislative inaction). One of the main arguments made for passing this bill (House Bill 1001) was that failing to do so would disrespect the work of the interim committee, which, sponsors frequently reminded us, made six field trips and took ten hours of testimony from 70 witnesses and on top of that had to take lots of phone calls and e-mails, some of which were mean.
These public servants who regularly humble-brag about their part-time status as citizen legislators sure marvel at their occasional ability to do their job. Good grief, legislators—get over yourselves.
I might be impressed if the Legislature had passed a consistent bill worth keeping around. But the issue that roused the most debate was over the sunset clause. Everyone acknowledged HB 1001 was imperfect and would require subsequent review and tweaking. To force such review, the original version of the bill would have expired July 1, 2021. Apparently wishing to force that review sooner rather than later, Rep. Nancy York (R-5/Watertown) moved to amend that date to July 1, 2018. Rep. York failed to sell that idea to the House, but Senator Jeff Partridge (R-34/Rapid City) moved a similar amendment of the sunset date to June 30, 2018 and won 29–4 approval. Partridge’s rationale was that the legislators who have grappled with this issue should deal with it again next year rather than kicking it down the road to a bunch of noobs in 2021.
Of course, Partridge’s one-year sunset moots the study provision of HB 1001. Section 20 directs Game Fish and Parks to report to the Legislature on closures of nonmeandered waters, negotiations for access, and other results of the law in 2019. But as amended, that directive and the rest of the law goes poof eleven months before GF&P’s report is due. So for all their self-congratulated work, in the three-plus hours it took them to get from Senate approval of its amendments through conference committee to House concurrence, nobody managed to amend Section 20 to direct Game Fish & Parks to provide the information the Legislature will need to assess the effectiveness of its action on nonmeandered waters before it revisits the issue in the 2018 Session.
But here’s the bright side: by passing a law that dies a year from now, legislators have guaranteed that nonmeandered waters will dominate the 2018 Session the same way it has dominated South Dakota political discourse over the past couple months. Farmers and fishers will crowd the Capitol next winter, elbowing aside the Family Heritage Alliance and other culture-war lobbyists and demanding attention for property rights and outdoor sports.
Nonmeandered waters make normal partisan conflicts disappear. Yesterday’s debate included almost no mention of party or ideology. Senate Stace Nelson (R-19/Fulton) tried to force the issue into something vaguely resembling a partisan template, fulminating about the stench of the “hard Left” campaign to subject God-given property rights to negotiation and compromise, but I could hear every other eye in the Senate (except Lance Russell’s) rolling through the SDPB audio feed. If any “hard Left” exists in South Dakota, it collectively cares not one fin about nonmeandered waters. Nonmeandered waters is a uniquely hot and complicated South Dakota issue. The “hard Right” and GOP political hacks can’t fit nonmeandered waters into their templates, either: look how little SDGOP spin blogger Pat Powers and wingnut Gordon Howie have contributed to the discussion of nonmeandered waters. Legislators and concerned citizens can’t get their talking points from Sean Hannity, Ivanka Trump, Rachel Maddow, or Bernie Sanders. South Dakotans have to figure this issue for themselves.
Every hour spent debating nonmeandered waters in the 2018 Session (and possibly the 2018 election) is an hour we don’t spend debating transgender bathroom access. And you know, we may be a lot better off debating where we can fish than where we can piss.
The Legislature worked really hard this spring to come up with a solution that won’t last. But with that little sunset clause, they may have shifted South Dakota political discourse in 2018 for the better.