Feb 21 2013
What are the water rights when water floods, overflows banks and runs across usually dry property? Who has the rights, and for what?
A measure in South Dakota, which has experienced some flooding in recent years, took aim at that question, but became controversial enough to die before passage.
House Bill 1135, sponsored by Representative Charlie Hoffman, R-Eureka, and other House members, answered the flood water question simply: The water travelling over the land of a private land owner was that land owner’s water, at least temporarily.
The measure passed the House before engendering hot discussion around the state. It died in a Senate committee, just ahead of a hearing packed by sportsmen and others critical of the measure.
The bill grew in part out of state Supreme Court decision about nine years ago suggesting that the question of excess water was one that state law simply didn’t address, and that the legislature should consider and address it.
A web site named GoWatertown.net argued, “Attention, everyone needs to do there part to protect our outdoor heritage this could completly change South Dakota outdoors as we know it so please take the time to inform yourself and please email our South Dakota represenitives to tell them to vote down bill HB 1135 they vote will be on Tuesday the 12 of Feb. so we have no time to waste we need to get on this right of way.
“Talking points against HB 1135: Access onto water over private land; This bill is the most anti-sportsman legislation in recent years, and will in fact negatively affect every man, woman and child in SD. The intent of the bill is to overturn over 130 years of water law and make all non-meandered public waters private. Over one million acres of water will be taken from the public for use exclusively by private interests. This Legislation affects non-meandered lakes, all rivers and all streams everywhere in South Dakota.”
The opinion piece continued: “As we have seen, low water can prevail for decades, fish populations change, fur prices go up and down, and dozens of other variables enter into the use of a body of water. These distinctions do not justify depriving the public of its interest in public waters, but that is exactly what this proposed bill will do. This is an issue that could impact and completely change the tradition of access onto the publics water here in South Dakota. The impact is not limited to fishermen and hunters. The bill also covers, wading, bird watching, or just floating on an old inner tube enjoying the sun.
“THE PROPOSED LEGISLATION IS AN OUTRIGHT GIVEAWAY OF PUBLIC PROPERTY. USFWS service numbers show a total of 932,829 wetland basins in East River SD, and 172,867 West River, for a total of just over 1.1 million wetlands and lakes. These basins and the rivers and streams that connect them comprise 9.8% of the surface area of East River, and 2.4% of West River. The average basin size is less than acre. Of these 1.1 million basins, fewer than 2000 are considered to be permanent, natural wetlands. Many of these are meandered* and are not affected by HB 1135. However, the legislation does affect well over 99% of these basins. (These figures do not take into account the thousands of rivers, streams and creeks which will also be impacted by HB 1135!)”