Yesterday the legislature convened for a special session in order to pass a non-meandered waters access bill. The legislature passed the bill and the Governor signed it into law right away. With one amendment to the sunset clause, this is the same bill which passed the summer study committee. Last week I did an in-depth look at the bill. In this post I will simply recap what the new law does.
Throughout this post when I am talking about nonmeandered waters, I am talking about nonmeandered waters with public access unless I specify otherwise. Landlocked nonmeandered waters and nonmeandered waters connected to meandered waters are different issues from what this law deals with.
Later this week I will have pictures and comments from the proceedings in yesterdays special session.
This law defines meandered lake, nonmeandered lake, and recreational use
Here are the definitions set out in the law:
(3) “Meandered lake,” any natural water body, except a river or stream, for which a meander line survey was included as part of the official survey conducted by the United States surveyor general for the land on which the lake is situated and the meander lines are shown on plats made by the United States General Land Office;
(4) “Nonmeandered lake,” any natural lake that is not a meandered lake;
(5) “Recreational use,” except as otherwise provided bylaw, use for outdoor sporting and leisure activities, including, but not limited to, hunting, fishing, swimming, floating, boating, and trapping.
To understand the definitions above the definition of lake from administrative rules must be used. Here is Administrative Rule 74:51:01:01, which defines lake:
“Lake,” a pond, reservoir, or other body of water, created by either natural or artificial means, but not a pond or appurtenance that is used for the treatment and disposal of wastes and that is permitted for such uses
Basically, any water on land that got there by natural means is a non-meandered lake, regardless of size (with the exception of the meandered lakes).
This law reopens most of the lakes GFP closed access to earlier this spring.
Earlier this spring GFP closed access to over two dozen lakes because they felt the recent SD Supreme Court ruling compelled them to. This new non-meander law now reopens most of those lakes. Any lakes involved in the Supreme Court rulings will remain closed.
The lakes specifically opened by the law are:
- Casey’s Slough, Cottonwood GPA, Dry #1, Dry #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
It is worth noting that four of the above lakes were not listed in lakes originally closed by the GFP. These four lakes are:
- Round in Clark County
- Opitz in Marshall County
- Island South in McCook County
- Cottonwood in Sully County
GFP must have closed access to the four above lakes after the original decision by the department to close down over two dozen lakes.
Today the GFP sent out a press release letting people know they will try to get access to these lakes right away. Here is part of what the press release says.
By the end of today, GFP staff will have removed all cables that previously restricted access to nearly 30 nonmeandered lakes. Full services will be restored by the end of the week; which includes having docks back in the water.
Nonmeandered waters with public access are open by default unless posted
A huge part of this law is that it allows access to nonmeandered waters over private land by default. Landowners are able to post signs or buoys to mark their land with nonmeandered waters off limits for recreation. Landowners who choose to block of non-meandered waters over private land will have to do so at their own cost; however the GFP will provide signage to be purchased to uniformity can be established for that signage. Until the GFP has signs available, landowners are able to use their own signage. Eventually the GFP will make rules for the signage that must be followed.
Landowners must also notify the GFP “within a reasonable time frame” of any non-meandered waters marked as off-limits. The GFP will update their maps and other reference material with this information.
Another thing to remember here is that the recreater, fisherman, or sportsman must have legal access in order to use a non-meandered water. This can be from a right-of-way, public roadway, or other public land connected to that non-meandered body.
Anyone caught trespassing on these marked off waters is guilty of criminal trespass. But if the trespass is incidental (such as a fishing lure touching the ground) there is no criminal trespass.
The lakes opened by name have a different process to close access
The lakes opened specifically in this law by name have a different process to follow if landowners wish to mark the nonmeandered waters above their private land as off-limits. These landowners must petition the GFP Commission for permission to restrict access for recreational use.
This law allows the GFP to create agreements with landowners
To facilitate access to nonmeandered lakes the GFP can create agreements with landowners. The GFP can negotiate with landowners to “acquire, by gift, grant, devise, purchase, lease, or license, recreational use of all or any portion of any nonmeandered lake overlying private property.”
One section of this bill prevents the GFP from entering into perpetual leases. It does this by specifying that the GFP cannot lease land for more than ten years.
Landowners can give permission to recreate, but cannot make money from fishing if they restrict access to the public
One section of the bill allows landowners to give permission to others to recreate on waters above their private property.
Another section states that if a landowner decides to mark their portion of a non-meandered body of water over their property as off-limits, then that same landowner cannot make money granting anyone access to fishing.
Landowners are protected from lawsuits
One section of the law protects the landowners with non-meandered waters above their property by ensuring they are not held liable for accidents used from public recreation.
The bed and frozen surface are off-limits.
This bill prevents people from walking, wading, standing, or operating a motor vehicle on the bed of a nonmeandered water over private land. Additionally it prevents hunting and trapping on the ice over a nonmeandered water that lies over private property unless there is permission from the landowner.
A road through the lake
If a landowner or landowners marks their part(s) of a non-meandered body off-limits that is in between two parts of the water where the public can recreate, this law allows for a “transportation lane” going through the water over the private property. The GFP has to create the standards for these transportation lanes.
The GFP has regulatory authority over nonmeandered waters
The GFP can set regulation for the “management, use, and improvement of all … nonmeandered lakes … for the purpose of water conservation or recreation”. One thing to note here is that it doesn’t say all nonmeandered lakes with public access, it actually would appear to include landlocked nonmeandered lakes. This power was touted as essential for the GFP to be able to implement the rest of this law.
In 2019 the GFP will report to the legislature
In 2019 the GFP will provide a report with a lot of metrics to the Executive Board of the Legislative Research Council. This portion of the law was to help some of the concerns about unintended consequences with the law. This will allow the legislature to see in a few years just how well this law is working out.
There is a sunset to this law in 2018
Having a report in 2019 was not enough answer the many concerns legislators have with this law. There are some legislators who wanted to ensure this law was re-looked at in the 2018 legislative; or that it would go away in 2018 if the law was so horrible that it was causing more harm than good. Going into the session this bill had a July 2021 sunset for the law to expire. The bill was amended in the Senate to change that to the end of June in 2018.
Finally this law was passed with an emergency clause
This bill was passed with an emergency clause so it could take effect immediately. Otherwise it would have been ninety days before it could take effect.