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nonmeandered waters FAQs

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Process Questions

What is the process for posting nonmeandered bodies of water?
The new legislation requires landowners to notify GFP within a reasonable timeframe when posting a nonmeandered water as closed. This notification can be done through the Pierre office, GFP field office or a local Conservation Officer. The notification should include a legal description of the waters the landowner wants to close. The waters then need to be marked conspicuously.

What is process for marking nonmeandered bodies of water overlying private property before and after the GFP Commission takes action? What is the timeline for this action?
The legislation states that the markings must be "conspicuous." The process is already underway with the commission planning to have the marking rules finalized this fall.

What is the petition process for the Section 8 lakes?
The Legislature gave the GFP Commission the authority to decide on requests to restrict nonmeandered lakes. The process being considered by the Commission will give landowners who reside on one of the 27 Section 8 lakes the ability to formally make those requests.

Petitioning landowners must first complete and submit the petition form.

Upon submission of the form, the Commission will schedule and post a hearing date based on the availability of the landowner and the Commission. The hearing agenda will be publicly posted and the hearing will be open to the public. Prior to the Commission’s decision, the department will work with the landowner to determine temporary solutions to accommodate the landowner and the public.

Following the hearing, the Commission will adopt a resolution that grants the petition in part or full, or denies the petition stating its reasons for partial or complete denial. State law requires the Commission to consider privacy, safety and substantially affected financial interests of the landowner as well as history of use, water quality and quantity and the public’s interest in recreational use of the water.

Final adoption of the petition process rule will be considered at the Commission meeting in September, after which they will then accept and consider petitions for closing waters to public access.

What are the Section 8 lakes?
These are the 27 nonmeandered bodies of water reopened for recreational use on June 13, 2017.

Is there a standard size and color of sign or buoys?
There is no standard as to the size or color of the posted signs or buoys yet. These details will be available later this year.

What happens if a water is improperly marked?
Markers that are improperly placed either intentionally or accidentally should be reported to GFP so they can be rectified.

Are there currently any signed agreements with landowners to mark their property?
Currently, GFP is in the process of negotiations with a few landowners, but no official agreements have been signed.

Where can I find information about which bodies of water have been marked? How are anglers going to keep up to date with lakes and parts of lakes that are open or closed?
As information is received, GFP will provide information in a variety of ways:

What happens during the 2018 legislative session? Will things change?
Legislators will need to enact changes to the Open Waters Compromise (SDCL 41-23-8) during the 2018 legislative session. This action could be as simple as changing the sunset date which is currently June 30, 2018, or it could be much more detailed and could include repeal of the statute.

Sportsman Questions

Where can I go fishing? What is legal right now?
All waters not marked as closed are open to recreational use, although the bed of nonmeandered lakes cannot be used without permission of the landowner. Hunting on ice of nonmeandered lakes without permission is also prohibited.

Are there lakes that are still closed?
The injunctions put in place on specific water bodies remain in effect until such time as they are removed by additional court action; which currently includes Duerre v. Hepler and Parks v. Cooper. More specifically, these Day County water bodies include: Duerre Slough, Jesse Slough, Schiley Lake, Long Lake and Parks Slough.

Is Reetz Lake open or closed?
Reetz Lake is open unless the waters are marked as closed. Currently, GFP is discussing a new lease with the Reetz family and will provide more information as it becomes available.

Do I have to ask permission to go fishing now on nonmeandered waters?
Yes, if the waters are marked as closed.

Is there a map showing which lakes or bodies of water overlying private property have been marked as closed?
Yes, there is a map available showing current nonmeandered water closures. Some of the waters may be fully or partially closed. Individuals are aked to please pay attention to posted signs.

How do I know if I am trespassing?
It is up to each individual to know where they are and if they are authorized to be there.

How will access be monitored on areas that have been closed off?
It is the responsibility of the landowner or his/her designee to monitor the areas that have been closed off. Law enforcement will investigate and can charge trespassers who are illegally on properly marked nonmeandered waters.

What is a nonmeandered body of water?
Water overlying private property that flooded after years of rainfall - this does not include rivers, streams, man-made lakes or meandered lakes.

What is a meandered lake?
Meandered lakes are waters that at the time of the original survey of South Dakota, the U.S. government surveyor estimated to be larger than 40 acres and of a permanent nature. Land within the defined meander line, or surveyed boundary, became state trust property.

Explain public trust resource. How can it be said that water is held in the public trust when it is now closed off?
Public trust is a term used to describe things that cannot be owned as personal possessions. The Supreme Court of SD upheld that water is a public trust resource, but also stated that it was the legislature’s responsibility to determine what that water could be used for.

What if a landowner is charging for access?
Per statute, landowners cannot charge a fee for fishing nonmeandered waters that are marked as closed. Violations related to charging for access to closed waters will be investigated by law enforcement. Fees may only be charged for fishing waters that are not marked as closed; such as a private boat ramp on an open water, a boat ramp located within the boundaries of a state park or recreation area and even some lakeside use areas along the Missouri River -

If I am standing on/in the road right-of-way and cast out to the water of an unmarked nonmeandered lake and the water is no longer in the road right-of-way, am I trespassing?
Any contact between recreational equipment and private property underlying any unmarked (open) nonmeandered lake incidental to a lawful recreational use is not a criminal trespass. Casting into unmarked (open) water from a legal point of access is legal.

Can I stand on the road right-a-way and cast into nonmeandered waters that are legally marked as closed?
The law now specifically prohibits "recreational use" of marked (closed) waters. Casting a lure into marked (closed) waters is a recreational use of those waters and is a violation of SDCL 41-23-5.

Is a flooded road right-of-way adjacent to legally posted nonmeandered waters open to spearing/archery fishing?  
Nonmeandered water over a road right-of-way is open to recreational use and cannot be closed by marking. It is the responsibility of the person recreating to ensure they are in fact over the road right-of-way.

What are the section line regulations?
Waters over section lines that have not been vacated are open to recreational access.

How does this law impact hunting?
Hunting on the ice above private land on nonmeandered waters requires permission from the landowner. Waterfowl hunting out of a boat is allowed on any unmarked area.

How does this law impact ice fishing?
Ice anglers need permission to fish on waters marked as closed to recreational use.

Landowner Questions

How can I post water over my private property in the interim?
Currently, this is as simple as ensuring the markings are "conspicuous.” The GFP Commission will develop rules identifying standards for marking waters in closed in the future. This does not apply to the 27 nonmeandered bodies of waters listed above and in SDCL 41-23-8.

Have there been further discussions regarding an access stamp to help offset tax burdens of the landowners and counties?
This concept was discussed by certain members of the nonmeandered waters legislative summer study committee and will likely be discussed further during the 2018 legislative session.

Who pays for the markers to close nonmeandered waters over my land?
The landowner is responsible for providing and placing the markers to close their waters to recreational use.

Have there been further discussions on the creation of a safety zone or quiet zone near homes or farms along nonmeandered waters?
This idea was discussed by certain members of the nonmeandered waters legislative summer study committee and will likely be discussed further during the 2018 legislative session.

Have there been further discussions on a permanent easement payment with the right to retain grazing/farming if land ever dries up?
These discussions have been limited.

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