The main Bill related to this issue is - SB 169 :
http://legis.sd.gov/Legislative_Session/Bills/Bill.aspx?Bill=169&Session=2014
THIS BILL WAS KILLED ON SENATE FLOOR 2/18/14
The SD Senate voted to table (kill) SB 169 on a 31-3-1 vote. Senator Corey Brown (R-Gettysburg) the bill sponsor, invoked Joint Rule 5-5.1 which is a non-debatable tabling motion shortly after floor debate on the measure began today.
THANKS TO ALL WHO HELPED KILL IT!
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We oppose SB 169, as written.
It will have adverse effect on the public's access to water.
It will have adverse effect on the public's access to water.
We believe this is the most important bill, related to outdoor recreation this year.
We request that folks write in opposition, please scroll down to
"How to Contact" section of this blog, which is in the Archives, for the e-mail addresses of Senate members.
History: Previous vote:
We request that folks write in opposition, please scroll down to
"How to Contact" section of this blog, which is in the Archives, for the e-mail addresses of Senate members.
History: Previous vote:
SB 169 had it's Senate hearing on Monday, Feb. 10th in the Senate State Affairs. It passed out of committee with a 6-3 vote, with several attempts to amend it failing.
Voting No: Rhoden, Frerichs, Lucas
Parks v. Cooper is the SD Supreme Court case that underlies the desire by some to create legislation about non-meandered water this year. We recommend everyone read Supreme Court decision for themselves as it is frequently quoted out of context or paraphrased incorrectly, especially when folks state the intent of the Court.
If you have limited time, the conclusion starts at paragraph 47.
Link to Parks v. Cooper
http://caselaw.findlaw.com/sd-supreme-court/1354824.htmlQuote from Parks v. Cooper:
"In conclusion, the public trust doctrine imposes an obligation on the
State to preserve water for public use. It provides that the people of
the State own the waters themselves, and that the State, not as a
proprietor, but as a trustee, controls the water for the benefit of the
public. In keeping with its responsibility, the Legislature has
designated the Department of Environment and Natural Resources to manage
our public water resources. However, it is ultimately up to the
Legislature to decide how these waters are to be beneficially used in
the public interest." (Emphasis added)
This was the criteria used in 1870s to divide SD waters in to non-meandered and meandered waters - 40 acres the litmus test:
Discussion of SB 169:
What this bill is about, is that the Supreme Court says the public owns the water above any privately held lake bottom/pond bottom. The water may be surrounded by private land, but the public owns the water (but not the land). If the public can legally access a corner of the water (without trespass), they can travel on and recreate on the water surface (but not touch the lake bottom). The Supreme Court however allowed that the legislature may regulate and manage such recreation in the public interest. That is what this bill is supposed to be doing. However if fails to do so in a way that adequately protects the public interest.
1) SB 169 is unbalanced and heavily skewed towards the interests of private property owners of the ground beneath publicly owned waters (the lake bed) and not providing enough protection to the public's interest in recreation on the non-meandered waters themselves. It is an "end run" around the Parks V. Cooper Supreme Court decision as the waters that will remain always unequivocally open to the public will only be the waters over 40 acres: which was part of the litmus test used in 1870s to decide what was meandered or non-meandered. Thus on waters which the 1870s surveyor accidentally missed or waters that have grown in size since 1870s, public recreation will be unequivocally allowed. We believe SB 169 may allow shallow waters 40 acres and larger to be open to public. This is not managing non-meandered waters (waters under 40 acres) for the public good, it is more like correcting mapping and surveying errors and the State identifying waters that the public will unequivocally have access as the waters that should really be called meandered by 1870 standards if survey redone today. Any private landowner can post with no trespassing notices and exclude public from waters under 40 acres and evict the public from such waters. It public is upset with this they can petition Game Fish and Parks for relief and a change of access status, if the water is called a non-meandered water.
2) SB 169 sees the Legislature's option as either letting people totally on a water or totally off the water.
This is too "black and white". The bill could explore solving conflicts with other management options besides making lakes closed or open. Other options not considered include but are not limited to - seasonal closures, time of day closures, lake-wide restrictions on motorized use, partial or full closures for public safety, restrictions on sound generating devices, noise ordinances, licenses required for non-meandered access and/or limits on number of visitors per day. The legislators for example could allow some of the non-meandered waters, (otherwise closed) to be open at least eight hours on one day a year for a water celebration day.
Bill does not consider protection of wildlife, rare aquatic ecosystems or threatened or endangered species as a reason to close lakes, either seasonly or year round.
3) In placing man-made waters on private lands outside the definition of non-meandered waters, this excludes public recreation on such. Any of the other relief to the public recreation on 'non-meandered waters"(such as petition to SDGFP for relief) in the bill won't apply to these man-made waters. As western SD is much more dry than eastern SD and has more man-made waters, this disproportionally effects water based recreation west River. Historically beaver created many not man made waters in the west, but many were removed via trapping and thus we have loss of natural standing water across the state. Man-made dams replace such. Man-made dams hold water back and keep it from down stream where it may form a larger lake in areas with public ownership and will effect downstream navigability, which effects access rights. When private people keep our water, back on their land, they effect our ability to use it elsewhere. There needs to be a different compromise on man-made waters. Also it is unclear what happens to augmented waters. For example Bear Butte Lake
was once a prairie pot hole or smaller water. The dam augments a natural water and at one time the lake was positioned over private land, that the USFWS had a conservation easement for.
What happens to such waters under this bill? It is not clear.
4). SD Water Management Board already has the authority to do what the Supreme Court mandated - to assign a beneficial use to all waters of the state. While action of the WMB is not legislative action, the legislature delegated this authority to WMB in 1973, as SB 169 would delegate some new rule making authority to SD GFP Commission in 2014.
Through rule making the WMB has assigned beneficial use # 9 as a more or less default use on all waters of the state (study the administrative rules for assignments and definitions of waters). However assigning recreation as a beneficial use via SD Beneficial uses # 7, 8, or 9, does not address whether the recreators that have been using the water have been private or public nor who has access to which waters. However the SD WMB has the authority to create sub-categories of beneficial uses. SD beneficial uses are used as substitutes for the EPA's "designated uses", in SD water pollution law. SD has primacy to enforce Clean Water Act law in SD, and as long as SD uses it's beneficial uses to be EPA's designated uses , SD DENR must get EPA approval for various rule making related to CWA. The EPA allows for sub categories for designated uses, so creating such sub-categories would not be inconstant with EPA's regulations. Thus the WMB could create sub-categories of beneficial uses that address the access issues and who is using waters for recreation.
Visit.
1) SB 169 is unbalanced and heavily skewed towards the interests of private property owners of the ground beneath publicly owned waters (the lake bed) and not providing enough protection to the public's interest in recreation on the non-meandered waters themselves. It is an "end run" around the Parks V. Cooper Supreme Court decision as the waters that will remain always unequivocally open to the public will only be the waters over 40 acres: which was part of the litmus test used in 1870s to decide what was meandered or non-meandered. Thus on waters which the 1870s surveyor accidentally missed or waters that have grown in size since 1870s, public recreation will be unequivocally allowed. We believe SB 169 may allow shallow waters 40 acres and larger to be open to public. This is not managing non-meandered waters (waters under 40 acres) for the public good, it is more like correcting mapping and surveying errors and the State identifying waters that the public will unequivocally have access as the waters that should really be called meandered by 1870 standards if survey redone today. Any private landowner can post with no trespassing notices and exclude public from waters under 40 acres and evict the public from such waters. It public is upset with this they can petition Game Fish and Parks for relief and a change of access status, if the water is called a non-meandered water.
2) SB 169 sees the Legislature's option as either letting people totally on a water or totally off the water.
This is too "black and white". The bill could explore solving conflicts with other management options besides making lakes closed or open. Other options not considered include but are not limited to - seasonal closures, time of day closures, lake-wide restrictions on motorized use, partial or full closures for public safety, restrictions on sound generating devices, noise ordinances, licenses required for non-meandered access and/or limits on number of visitors per day. The legislators for example could allow some of the non-meandered waters, (otherwise closed) to be open at least eight hours on one day a year for a water celebration day.
Bill does not consider protection of wildlife, rare aquatic ecosystems or threatened or endangered species as a reason to close lakes, either seasonly or year round.
3) In placing man-made waters on private lands outside the definition of non-meandered waters, this excludes public recreation on such. Any of the other relief to the public recreation on 'non-meandered waters"(such as petition to SDGFP for relief) in the bill won't apply to these man-made waters. As western SD is much more dry than eastern SD and has more man-made waters, this disproportionally effects water based recreation west River. Historically beaver created many not man made waters in the west, but many were removed via trapping and thus we have loss of natural standing water across the state. Man-made dams replace such. Man-made dams hold water back and keep it from down stream where it may form a larger lake in areas with public ownership and will effect downstream navigability, which effects access rights. When private people keep our water, back on their land, they effect our ability to use it elsewhere. There needs to be a different compromise on man-made waters. Also it is unclear what happens to augmented waters. For example Bear Butte Lake
was once a prairie pot hole or smaller water. The dam augments a natural water and at one time the lake was positioned over private land, that the USFWS had a conservation easement for.
What happens to such waters under this bill? It is not clear.
4). SD Water Management Board already has the authority to do what the Supreme Court mandated - to assign a beneficial use to all waters of the state. While action of the WMB is not legislative action, the legislature delegated this authority to WMB in 1973, as SB 169 would delegate some new rule making authority to SD GFP Commission in 2014.
Through rule making the WMB has assigned beneficial use # 9 as a more or less default use on all waters of the state (study the administrative rules for assignments and definitions of waters). However assigning recreation as a beneficial use via SD Beneficial uses # 7, 8, or 9, does not address whether the recreators that have been using the water have been private or public nor who has access to which waters. However the SD WMB has the authority to create sub-categories of beneficial uses. SD beneficial uses are used as substitutes for the EPA's "designated uses", in SD water pollution law. SD has primacy to enforce Clean Water Act law in SD, and as long as SD uses it's beneficial uses to be EPA's designated uses , SD DENR must get EPA approval for various rule making related to CWA. The EPA allows for sub categories for designated uses, so creating such sub-categories would not be inconstant with EPA's regulations. Thus the WMB could create sub-categories of beneficial uses that address the access issues and who is using waters for recreation.
Visit.
34A-2-10. Classification of waters. The
Water Management Board shall promulgate rules pursuant to chapter 1-26 to
establish or modify the classification of all waters in accordance with their
present and future beneficial uses.
Source: SL 1973, ch 280, § 4 (2); SDCL Supp, § 46-25-32;
SL 1978, ch 260, § 1; SL 1993, ch 256, § 8.
Here is a related administrative rule.
74:51:01:42. Beneficial uses
of waters established. The beneficial use classifications of surface
waters of the state established in this section do not limit the actual use of
such waters. The classifications designate the minimum quality at which the
surface waters of the state are to be maintained and protected. The following
are the beneficial use classifications:
(1) Domestic
water supply waters;
(2) Coldwater
permanent fish life propagation waters;
(3) Coldwater
marginal fish life propagation waters;
(4) Warmwater
permanent fish life propagation waters;
(5) Warmwater
semipermanent fish life propagation waters;
(6) Warmwater
marginal fish life propagation waters;
(7) Immersion
recreation waters;
(8) Limited
contact recreation waters;
(9) Fish
and wildlife propagation, recreation, and stock watering waters;
(10) Irrigation
waters; and
(11) Commerce
and industry waters.
Source: SL
1975, ch 16, § 1; transferred from § 34:04:02:30, effective July 1,
1979; 10 SDR 145, effective July 4, 1984; 13 SDR 129, 13 SDR 141, effective
July 1, 1987; 14 SDR 86, effective December 24, 1987; 19 SDR 111, effective
January 31, 1993; transferred from § 74:03:02:30, July 1, 1996; 25 SDR 98,
effective January 27, 1999.
See SD rule:
http://legis.sd.gov/rules/DisplayRule.aspx?Rule=74:51:01:42
EPA rules see §131.6 Minimum
requirements for water quality standards submission and §131.10 Designation
of uses and § 131.3 Definitions.
http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&tpl=/ecfrbrowse/Title40/40cfr131_main_02.tpl
Emphasis added.
Other bills related to issue
HB 1208 restrict access to certain waters that inundate private property http://legis.sd.gov/Legislative_Session/Bills/Bill.aspx?File=HB1208P.htm&Session=2014
HB 1209 provide for reimbursement of property taxes paid on certain private lands inundated by the waters of nonmeandered lakes. http://legis.sd.gov/Legislative_Session/Bills/Bill.aspx?File=HB1209P.htm&Session=2014
SB 146 revise certain provisions regarding the closure of county and township roads due to high water (might be hog-housed) http://legis.sd.gov/Legislative_Session/Bills/Bill.aspx?File=SB146P.htm&Session=2014
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