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Non-meandered waters is far from being settled

An access to Twin Lakes, near Woonsocket, is blocked off by South Dakota Game, Fish & Parks. (Caitlynn Peetz / Republic)

PIERRE — On Thursday afternoon, before the snow coming down got worse, South Dakota lawmakers hurried from the Capitol for another three-day break. The 2018 session was half done and there still wasn't agreement on non-meandered waters.

If anything, the issue many thought was fixed in the one-day special session eight months ago now appears to be more divided.

That's because the laws passed last June 12 are set to expire this June 30.

The Legislature has 18 working days left in the regular session to make those laws last longer.

But there's another route many are pursuing.

Different factions of lawmakers are trying to find sufficient support for their preferred changes, either with the governor's blessing or strong enough to override his veto.

The ending that would frustrate many is the laws automatically repeal on June 30 because no side could break the deadlock.

That seems more likely each day that goes by.

The session's main run ends Friday, March 9. The lawmakers gather a last time Monday, March 26.

That final day has been used solely for handling vetoes in recent years. This time the day might come back into play for more than debating whether to override.

There remains a wide split over non-meandered waters. On one side are the House of Representatives and Gov. Dennis Daugaard.

But Daugaard has less than 11 months left in this second, and final, term.

On the other side is the Senate.

In the middle are rural landowners, who sometimes welcome and sometimes curse the thousands of anglers, waterfowl hunters, boaters and other recreational users who have crowded onto the flooded waters that lay over their private property.

The South Dakota Supreme Court on March 15 said the water belonged to the public but neither the landowners nor the recreational users had a superior right to it. The Legislature needed to figure out who did, the justices said.

The Legislature had avoided the issue for some 20 years. No side could arrive at a solution that was agreeable to any other side.

The Supreme Court forced legislators into action. The Executive Board that makes many of the Legislature's administrative decisions appointed a 15-member task force. It met four times from April 27 to June 2 and set the special session for 10 days later.

When the day came, senators stood together for the amendment by Sen. Jeff Partridge, R-Rapid City. It changed the automatic repeal date to June 30, 2018. The special-session legislation originally called for the repeal June 30, 2021.

The idea was to give the Game, Fish and Parks Commission and the state Wildlife Division four years to put a system in place for regulating who uses the waters and when they can be closed.

But the Partridge amendment triggered hours of private negotiations between the House and Senate sides.

The expression on the face of Rep. Larry Rhoden, R-Union Center, was stone-like with anger, as House negotiators came back and begrudgingly accepted the Senate date.

The gap from that day now is a gulf. Consider where the Legislature now is:

The Senate hasn't scheduled a vote yet on the governor's bill that would reinstate the original 2021 repeal;

House members passed Rhoden's bill that originally would have reinstated the 2021 repeal date and now removes the repeal date altogether, but the Senate hasn't scheduled a hearing yet; and

Meanwhile Sen. Jim White, R-Huron, introduced legislation Feb. 1 that would rewrite many provisions of the special-session laws.

It gets worse. White's bill came out of a Senate committee hearing Wednesday night without recommendation.

Rhoden, Partridge and White come from different places and backgrounds. Rhoden believes in property rights. Partridge represents recreational users. White is somewhere in the middle.

Rhoden, a rancher and a welder, has served 16 years as a legislator. His record at the statehouse often had him pushing straight ahead for solutions on behalf of the Rounds and Daugard administrations. At times he seemed hardheaded. He turned 59 Feb. 5.

Partridge, 47, is in his fourth year as a legislator. He can be abrupt and pointed at times in the Capitol. He has a financial advisory firm, after first marketing computers for a national firm and later working for a large investment firm in Rapid City.

White, 73, is in his eighth year as a legislator. His professional life as a banker involved analysis of records and reputations of people and businesses wanting to borrow money and privately rendering judgments of how credit-worthy they were.

It's impossible to predict who comes out as the winner this time. And here's the final noteworthy fact.

None of the three is a co-sponsor on either of the other two's bills.

At a glance

BACKGROUND: In a special session June 12, the South Dakota Legislature passed a package of laws on non-meandered waters.

WHAT NON-MEANDERED MEANS: They are waters atop private property, mostly in eastern South Dakota, that government surveyors didn't officially designate public waters more than a century ago. Years of large amounts of rain and snow accumulated water in basins that don't drain, forming temporary ponds and lakes.

WHAT'S IN DISPUTE: Landowners vary on whether the general public should have access to the waters. The South Dakota Supreme Court said in an official opinion released March 15 that neither landowners nor recreation users had a superior interest and the Legislature must decide the matter.

WHAT HAPPENED: In response the state Game, Fish and Parks Commission closed its public access to all non-meandered waters across South Dakota that had state ramps or docks or both. The Legislature then convened a study panel.

THE RESULT: The Legislature held a special session June 12 and passed a package of laws governing the waters.

THE SNAG: The original version of the special-session legislation as sponsored by Rep. Larry Rhoden, R-Union Center, called for automatic repeal July 1, 2021, unless some or all were renewed.

But an amendment from Sen. Jeff Partridge, R-Rapid City, changed the repeal date to June 30, 2018. Lawmakers approved the Partridge version.

THE 2018 SESSION: Seven bills that attempt to change the June 12 laws in various ways are pending.

None of the bills has won approval from both legislative chambers. Passing a bill in the same form in both chambers is required before it is presented to the governor.

Seven bills

HB 1081 — The original 2018 bill from Rep. Rhoden sought to make the automatic repeal July 1, 2021. Rhoden amended it to repeal the June 30, 2018, repeal and put the laws into effect without a definite repeal date, similar to most laws passed by the Legislature.

House members voted 51-12 to send 1081 to the Senate. The Senate Agriculture and Natural Resources Committee hadn't publicly scheduled a hearing as of Friday.

HB 1140 —The original bill from Rep. Herman Otten, R-Lennox, would prohibit a county or township from vacating a highway that provides access to "waters open to the public for recreational use."

The House State Affairs Committee amended it to require at least 40 acres of water. The House hadn't acted as of Friday.

HB 1246 — Rep. John Mills, R-Volga, wants to expand the 2017 law that declares any non-meandered water overlying private property as open for public recreational use, unless the landowner officially closes the water.

Mills wants the law expanded to also cover "any inundated private property located outside of the meander line survey of a meandered lake that an ordinary high water mark has not been established as of January 1, 2017."

The House State Affairs Committee hadn't publicly scheduled a hearing as of Friday.

SB 24 — Gov. Dennis Daugaard wanted the repeal date for the 2017 laws changed to June 30, 2021. The Senate Agriculture and Natural Resources Committee changed the date to July 1, 2021. The Senate hadn't acted as of Friday.

SB 170 — Sen. Partridge wants the 2017 laws to be "liberally construed" regarding public use of non-meandered waters. The Senate Agriculture and Natural Resources Committee hadn't publicly scheduled a hearing as of Friday.

SB 199 — Sen. Jim White, R-Huron, wants changes made to the 2017 laws. His proposal would: Declare "null and void" closures of most waters by private landowners; Repealing 27 non-meandered waters specifically open; Establish a process to petition for a specific water to be closed or opened; and Limit those closed and opened decisions to five years.

White's legislation also would declare recreational use as "a lawful and beneficial use" to meet a requirement the Supreme Court decision set.

Finally, the repeal date would be removed.

The Senate Agriculture and Natural Resources Committee held a hearing Feb. 7 and sent the bill without recommendation. That is unusual. The Senate must vote whether to put the measure on its debate calendar.

The Senate hadn't take action as of Friday.

SB 211 — Sen. Jason Frerichs, D-Wilmot, wants the Legislature to establish a water-management committee. Its scope would be broader than non-meandered waters and cover "flooded private land, irrigation, water quantity, water quality, and water recreation, and local government involvement in water issues." The Senate Agriculture and Natural Resources Committee hadn't publicly scheduled a hearing as of Friday.

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