HB 1082 codify the list of navigable streams requiring gates.
State of South Dakota
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NINETY-FIRST SESSION
LEGISLATIVE ASSEMBLY, 2016
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840X0098
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HOUSE BILL NO. 1082
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Introduced by: Representatives Duvall, Deutsch, Gibson, Gosch, Hawley, Heinemann
(Leslie), Hunt, McCleerey, and Zikmund and Senators Monroe, Heineman
(Phyllis), Peterson (Jim), Rusch, Vehle, and White
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FOR AN ACT ENTITLED, An Act to codify the list of navigable streams requiring gates.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That § 43-17-34 be amended to read:
43-17-34. A stream, or portion of a stream, is navigable if it can support a vessel capable of
carrying one or more persons throughout the period between the first of May to the thirtieth of
September, inclusive, in two out of every ten years. A dry draw, as defined in § 46-1-6, is not
navigable. This section does not apply to any stream or portion of a stream which is navigable
pursuant to federal law.
Any person may petition the Water Management Board for a declaratory
ruling as to the navigability of any stream, or portion of a stream, in this state. The Water
Management Board may charge the petitioner a fee not to exceed two hundred fifty dollars to
defray the costs of preparing the declaratory ruling. Neither this section nor any declaratory
ruling made pursuant to this section grants, creates, recognizes, conveys, removes, or diminishes
The provisions of §§ 43-17-34 to 43-17-36, inclusive, and § 43-17-38 do not grant, create,
recognize, convey, remove, or diminish any right or title to property. The provisions of this
section apply only to the implementation of §§ 43-17-35 to 43-17-37 and 43-17-38, inclusive.
Section 2. That § 43-17-37 be repealed.
43-17-37. The owners of land adjacent to the stream may request a variance from the
requirements of §§ 43-17-35 and 43-17-36 by application to the Water Management Board if
local conditions do not permit compliance with rules promulgated pursuant to § 43-17-36. Upon
receiving a request for a variance, the chief engineer, as defined in subdivision 46-1-6(5), shall
schedule the matter for hearing by the Water Management Board in accordance with the
procedures specified in chapter 46-2A.
Section 3. That § 43-17-38 be amended to read:
43-17-38. A gate or opening constructed pursuant to § 43-17-36 is required in any fence that
crosses any stream or portion of any stream that is navigable pursuant to § 43-17-34 and that has
been designated by the Water Management Board as requiring a gate or opening pursuant to
§ 43-17-39. A gate or opening constructed pursuant to § 43-17-36 is required in any fence that
may be constructed across any of the following streams or portions of such streams:
(1) Big Sioux River from the Grant-Codington County boundary to a point five miles
north of the Missouri River in Union County;
(2) Turtle creek, from Highway 26 to the James River, located in Spink County;
(3) Elm River, from Elm Lake to the James River, located in Brown County;
(4) Moccasin Creek, from 18th Avenue southwest to 8th Avenue northwest in the City
of Aberdeen, located in Brown County;
(5) North fork of Whetstone River, from Highway 15 near Wilmot to the Minnesota state
boundary, located in Roberts and Grant Counties;
(6) Flandreau Creek, from the Minnesota state boundary to the Big Sioux River, located
in Moody County;
(7)(6) Vermillion River, from Lake Vermillion to the Missouri River;
(8)(7) East fork of the Vermillion River, from Interstate 90 to Lake Vermillion, located in
McCook County;
(9)(8) Splitrock Creek, from the Minnesota state boundary to the Big Sioux River, located
in Minnehaha County;
(10)(9) Firesteel Creek, that portion located in Davison County;
(11)(10) Little White River, from the Bennett-Todd County boundary to the White
River, located in Todd and Mellette Counties;
(12)(11) White River, from the Nebraska state boundary to the Missouri River;
(13)(12) Bad River, from the Stanley-Jones County boundary to the Missouri River,
located in Stanley County;
(14)(13) Cheyenne River, from the Wyoming state boundary Hat Creek to the
Angostura Dam in Fall River County, and from Custer-Fall River County
boundary to Highway 44 in Pennington County, and from the confluence of
the Belle Fourche-Cheyenne Rivers to the Missouri River;
(15)(14) Moreau River, from Highway 63 to the Missouri River;
(16)(15) Grand River, from Shadehill Reservoir to the Missouri River;
(17) Little Missouri River, from the Montana state boundary to the North Dakota state
boundary, located in Harding County;
(18) Belle Fourche River, from the Wyoming state boundary to the Belle Fourche
irrigation project diversion dam and from Highway 79 to the Cheyenne River;
(19) Little Minnesota River, from Highway 10 to Lake Traverse, located in Roberts
County; and
(20)(16) Redwater River, from Highway 85 to the Belle Fourche River, located in Butte
County.
Because the Missouri River, James River, Boise des Sioux River, and the lower five miles
of the Big Sioux River have been designated as navigable pursuant to federal law, this chapter
does not permit fencing, with or without gates, across the federally-navigable portions of these
rivers.
The extent of the public's use shall be the determining factor in designating a stream or
portion of a stream pursuant to this section or § 43-17-39. The public's right to the use of such
designated streams as public highways pursuant to § 43-17-2 may be impaired if a gate or
opening is not provided in each fence across the streams. Construction of a fence in violation
of this section is a Class 2 misdemeanor.
The public's interest in or right to use other streams navigable pursuant to § 43-17-34 but
not designated pursuant to this section or § 43-17-39 is not impaired or unduly restricted if
fences crossing such other navigable streams are not provided with a gate or opening. This
section and § 43-17-39 do does not diminish the public's interest in or right to use streams that
are navigable pursuant to § 43-17-34 but that are not designated pursuant to this section or § 43-17-39.
Section 4. That § 43-17-39 be repealed.
43-17-39. Any person may file a petition by August first in any year with the Water
Management Board requesting the board to add any stream or portion of a stream to, or to delete
any stream or portion of a stream from, the streams listed pursuant to § 43-17-38. At its next
regularly scheduled meeting after August first, the board shall consider any petitions that have
been received during the twelve months immediately prior to August first and may act on such
petitions by promulgating rules pursuant to chapter 1-26 to:
(1) Designate a stream or portion of a stream to be included among the streams listed
pursuant to § 43-17-38 and this section:
(a) If the stream portion is navigable pursuant to § 43-17-34; and
(b) If available information shows that use by the public justifies the construction
and maintenance of a gate or opening in any fence across the navigable stream;
or if the public's right to the use of a stream as a public highway pursuant to
§ 43-17-2 would be adversely impaired without a gate or opening in each
fence across the stream;
(2) Delete a stream or portion of a stream from the streams listed pursuant to § 43-17-38
and this section:
(a) If available information shows that the public's use is not significant; or
(b) If the rights of the public to the use of the stream would not be adversely
impaired without a gate or opening in any fence across the stream.
Any designation made pursuant to this section shall specify the months of the year during
which a gate or opening across the navigable stream or portion of the stream is required. Any
person who submitted written or oral testimony at the hearing pursuant to this section and who
does not agree with a board decision, may file a petition within ten days of the hearing with the
chief engineer, as defined in subdivision 46-1-6(5), to request the Legislature to take final action
on the matter governed by the petition. Upon receipt of a petition to submit the decision of the
board to the Legislature, the board's decision is nullified and the portion of the rules addressed
by the petition may not take effect. The chief engineer shall draft legislation in accordance with
the petition and submit the proposed legislation to the next Legislature. All persons submitting
written or oral testimony at the hearing shall be given notice by first class mail that the decision
of the board has been nullified and that legislation to address the petition will be submitted to
the Legislature. The Legislature may add or delete a stream or portion of a stream to the streams
designated pursuant to this section and § 43-17-38.
Section 5. That ARSD 74:02:10:04 be repealed.
74:02:10:04. Declaratory ruling on navigability. A request for a declaratory ruling on the
navigability of a stream must be in the form of a petition submitted to the chief engineer
containing the following:
(1) The name, address, and telephone number of the person or persons submitting the
petition;
(2) The name and location of the stream;
(3) The requested action and reasons for the request; and
(4) A fee of $50 for each petition.
Section 6. That ARSD 74:02:10:05 be repealed.
74:02:10:05. Timely consideration by board. The board shall consider the petition submitted
pursuant to § 74:02:10:04 no later than its second regularly scheduled meeting after receipt of
the petition.
Section 7. That ARSD 74:02:10:06 be repealed.
74:02:10:06. Petitioner to publish notice. The petitioner shall publish a notice of hearing
describing the contents of the petition pursuant to SDCL 46-2A-4(1) to 46-2A-4(10), as
applicable, and SDCL 1-26-17.
Section 8. That ARSD 74:02:10:07 be repealed.
74:02:10:07. Deletion of stream portions from streams listed in SDCL 43-17-38. The
following portions of streams are deleted from the list of streams where gates or openings are
required in fences across streams pursuant to SDCL 43-17-38:
(1) The portion of the Belle Fourche River from the Wyoming state line to the Belle
Fourche Irrigation District Diversion Dam in Butte County [SDCL 43-17-38(18)];
(2) The portion of the Belle Fourche River from its intersection with Highway 79 in Butte
County to its intersection with Meade County Highway 12 on the west side of section 19,
township 5 north, range 10 east of the Black Hills meridian [SDCL 43-17-38(18)];
(3) The portion of the Cheyenne River from the Wyoming state line to the mouth of Hat
Creek in Fall River County in the southeast quarter of section 13, township 9 south, range 4 east
of the Black Hills meridian [SDCL 43-17-38(14)];
(4) The Little Minnesota River from Highway 10 to Lake Traverse in Roberts County
[SDCL 43-17-38(19)];
(5) The North Fork of Whetstone River in Roberts and Grant Counties from Highway 15
near Wilmot to the Minnesota state boundary [SDCL 43-17-38(5)];
(6) The portion of the Cheyenne River from the Angostura Dam to the Fall River-Custer
County line [SDCL 43-17-38(14)];
(7) The portion of the Cheyenne River from Highway 44 to the mouth of the Belle Fourche
River [SDCL 43-17-38(14)];
(8) The Little Missouri River in Harding County from the Montana state boundary to the
North Dakota state boundary [SDCL 43-17-38(17)]; and
(9) The portion of the Belle Fourche River from its intersection with Meade County
Highway 12 on the west side of section 19, township 5 north, range 10 east to its confluence
with the Cheyenne River, section 33/34, township 6 north, range 15 east of the Black Hills
Meridian [SDCL 43-17-38(18)].