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SD panel passes rules about water on private land

- Associated Press - Monday, February 10, 2014

PIERRE, S.D. (AP) - Sought after for nearly 10 years, a set of regulations governing the public use of water on flooded private land passed a South Dakota Senate committee on Monday.

The State Affairs Committee voted 6-3 to approve the measure, which would allow fishing on bodies of water 40 acres or larger, as long as there is public access.

Opponents of the bill, including many property owners, argued that the provision would violate property rights without providing compensation. But supporters see it as a compromise that considers all stakeholders in the contested waters.

"We've got provisions for land owners. We've got provisions for sportsmen," said Nathan Sanderson, a policy adviser to Gov. Dennis Daugaard. "We're talking about the balance."

For those land owners who don't want the water on their property to be used recreationally by the public, the bill establishes a petition process to allow them to close portions of accessible water. It also includes a sunset clause, which forces the Legislature to revisit it in five years to assess whether the provision is working, said Sen. Corey Brown, a Republican from Gettysburg and sponsor of the bill.

A 2004 state Supreme Court ruling left questions about water usage up for the Legislature to answer, Brown said. The court ruled that property titles apply to the land and the water belongs in the public trust. Brown said the Legislature has yet to decide how the public can use that water - for fishing and other sports, drinking or irrigation.

"The position that everyone is in today is a horrible spot of limbo," Brown said.

Sanderson agreed, saying the rules aren't clear.

"Most of the rules as they're operating is that everything is open," Sanderson said.

Paul Jensen, a Dell Rapids sportsman and a property owner, said he understands the appeal of the bill as a waterfowl hunter. But, he said, "As a citizen of South Dakota I can't believe we're considering a bill taking away the rights of landowners."

Committee chairman, Larry Rhoden, R-Union Center, voted against the provision, saying that just because water is in the public trust does not guarantee public access to it.

"If we want to resolve this, I think the land owner should be compensated," Rhoden said.

The bill goes next to the South Dakota Senate for debate.

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