Get ready for controversy: legal eagle and Senate President Pro-Tem Lee Schoenbeck (R-5/Watertown) is lawyering into the whitecaps of South Dakota’s nonmeandered waters issue!
In recent years the Legislature has grappled with whether nonmeandered waters—new lakes that have sprung up from climate change and aggressive agriculture drainage activity in places not defined (“meandered”) as lakes—are public waters or private property. Senator Schoenbeck’s Senate Bill 76 appears to resolve that question entirely in favor of private property interests.
If I’m reading SB 76 correctly, Schoenbeck resolves the question of public access by simply inserting the word “meandered” into two statutes that establish public access to our rivers and lakes:
Section 2. That § 43-17-29 be AMENDED.
43-17-29. Public rights in lake above high water mark.
If any water level rises above the ordinary high water mark of a navigable meandered lake, the right of the public to enjoyment of the entire lake may not be limited, except that access to the lake shall be by public right‑of‑way or by permission of the riparian landowner and is subject to §§ § 43-17-2, 43-17-31, 43-17-32, and 43-17-33.
Section 3. That § 43-17-2 be AMENDED.
43-17-2. Upland owner taking to edge of navigable lake or stream at low‑water mark–Exception–Navigable rivers and lakes as public highways.
Unless the grant under which the land is held indicates a different intent, the owner of the upland, if it borders upon a navigable lake or stream, takes to the edge of the lake or stream at low water mark. All navigable rivers and meandered lakes are public highways within fifty feet landward from the water’s nearest edge, provided that the outer boundary of such public highway may not expand beyond the ordinary high water mark and may not contract within the ordinary low water mark, and subject to §§ § 43-17-29, 43-17-31, 43-17-32, and 43-17-33 [2021 Senate Bill 76, as introduced, 2021.01.15].
Current law appears to extend our right of enjoyment and navigation to all lakes. SB 76 restricts that right to the meandered lakes, meaning owners of land under nonmeandered lakes can put up their signs and say beat it!
SB 76 may just be cleanup: the 2017 “Open Waters Compromise” created a process by which landowners may petition Game Fish and Parks to close nonmeandered lakes to public access. But Section 1 of Schoenbeck’s bill adds a lot of verbage giving the GF&P authority to close portions of meandered bodies of water… which might mean SB 76 would remove GF&P authority over nonmeandered lakes, devolving any closure authority to the landowners, whose actions would no longer violate any public right, since Sections 2 and 3 erase that right on nonmeandered waters.
I have a feeling the other ’76 bill in the hopper is going to get a lot more press. But let’s keep an eye on whether Senate Bill 76 provokes some heated debates among landowners, outdoors enthusiasts, cartographers, and other parties interested in South Dakota’s bodies of water.
Memory eludes me; did the state settle any of the taxing problems the last time they dealt on this issue? Is the adjacent landowner STILL liable for taxes on flooded acres taken from his use and given to other activities?
Jake, I think the owners are still paying taxes. The Legislature may have allowed a low valuation for submerged land, but I’d need to look back through the archives to be sure. Readers, taxpayers, how’s your memory on that question?
Thanks, Cory.
So who pays for the rebuilding of submerged roads and would this bill change that?
https://dakotafreepress.com/2017/05/09/solution-to-non-meandered-waters-conflict-full-tax-abatement-and-nominal-title/
Might herp.
herp is the latest iteration of help from iowa, or, a typo.
thanks mfi
You are welcome. Hope it is what you wanted.
This bill was drafted with all different perspectives getting to see every ideation. It’s anything but nefarious. I need to sit down this weekend and type up an issue brief on it, which should help with the subtleties and nuances of the water law being addressed. It’s really about solving problems and avoiding Water Wars II
Senator Schoenbeck, I’m keenly interested to read your policy brief. I really do want to understand how SB 76 would affect property rights and access to public waters, and I want to see how those different perspectives will come out in the debate of this bill. When you finish, will you share that brief with us here on the blog?
I sincerely hope that Mr. Schoenbeck’s word “ideation” is not likening to Mr. Guilliani’s use of the phrase
“alternate facts!”
Study hard how this law bill affects Mr. Schoenbeck’s chief political rival’s lake cabin.
Land owners pay taxes on flooded land. Value of land is supposed to be based on productivity. I currently have over 100 acres that have been flooded for years and are totally non productive and are valued at $200/ acre for tax purposes.
I’m all for tidying up language, but SB 76 proposes to allow private landowners to petition GFP to close down MEANDERED waters as well – waters which have been public for generations. This is far beyond the non-meandered waters issue we’re struggling with.
Can you imagine allowing someone along Lake Madison being able to close down a portion of that lake to public access because of privacy concerns? Or for someone along Lake Poinsett because the noise of ice augers interferes with cattle productivity? That’s what SB 76 would allow people to do.
That’s not okay. I can see having a debate about non-meandered waters, but the streams, rivers, and lakes we’ve had for generations should not be allowed to have private parties deny access to the public; they knew what they were getting into when they got land next to those waters.
https://gfp.sd.gov/UserDocs/nav/meandered-list.pdf