SOUTH DAKOTA Department of
Environment & Natural Resources

Protecting South Dakota's Tomorrow...Today!
Joe Foss Building
523 E Capitol
Pierre, SD 57501
Field Offices
Contact Us
SubMenu

Water Rights

CHAPTER 43-17
WATER BOUNDARIES AND RIPARIAN LANDS


Section
43-17-1. Land below ordinary high-water mark of navigable lake or stream - Law governing ownership.
43-17-2. Upland owner taking to edge of navigable lake or stream at low-water mark - Exception - Navigable rivers and lakes public highways.
43-17-3. Lands forming in bed of navigable stream or meandered lake belong to state - Exception.
43-17-4. Opposite banks of nonnavigable stream belonging to different persons - Stream and bed common to both.
43-17-5. Accretions to bank of river or stream belong to owner of bank subject to existing right-of-way.
43-17-6. Surveying and subdividing accretion lands - Permanency of uncontested boundaries.
43-17-7. Notice of survey of accretion lands - Consent of interested parties necessary.
43-17-8. Plat of accretion lands by surveyor - Contents - Recording.
43-17-9. Attaching of additional land - Substitution of outer boundary of surveyed accretion land - Apportionment of new accreted land - Determination of boundary line.
43-17-10. Title to land by avulsion - Reclamation by original owner of part of land carried away.
43-17-11. Stream forming new course - Abandonment of ancient stream bed - Owners of newly occupied land take ancient stream bed proportionately.
43-17-12. New arm of stream - Island formed by division belongs to owner of shore.
43-17-13. Ownership of island or accumulation of land in nonnavigable stream.
43-17-14. Land acquired by reliction - Apportionment and division - Preparation, contents and recording of survey.
43-17-15. Failure or neglect of owners of land acquired by reliction to plat land - Enforcement action by municipal officials.
43-17-16. Action to enforce survey of land acquired by reliction - Determination of ownership - Appointment of commissioners to divide and survey relicted lands.
43-17-17. Plat and survey of relicted lands by commissioners - Report in writing - Filing with clerk of courts.
43-17-18. Report and survey of relicted lands by commissioners - Adoption or modification by circuit court - Filing of certified copy of judgment - New trial and appeal.
43-17-19. Costs of action to enforce plat and survey of relicted lands.
43-17-20. Establishment of water marks on lakes - Definition of terms.
43-17-21. Water management board to establish and mark high and low water marks on public lakes - Change on change in natural conditions.
43-17-22. Repealed.
43-17-23. Natural factors given precedence in water marks - when man-made influences considered.
43-17-24. Investigation of site where water mark to be established - Consultation with other agencies - Public hearings.
43-17-24.1. Notice of public hearings on water marks.
43-17-24.2. Prior decisions on water marks validated - Rights barred by no action.
43-17-25. Reconsideration of water marks established by board - Final unless appealed to courts.
43-17-26. Ownership and rights of use unaffected.
43-17-27. Marks previously determined not affected - Effect on pending proceedings for determination.
43-17-28. Persons who may request board determination - Jurisdiction of courts.
43-17-29. Public rights in lake above high water mark.
43-17-30. Powers of department of game, fish and parks.
43-17-31. Landowner's right to deny public access to taxable property - Department to clearly mark certain inundated property - Exception.
43-17-32. Landowner's right to deny state agency use of taxable property - Conditions for public access - Exceptions.
43-17-33. Public access to private lands pursuant to § 43-17-32 - Identification of affected property by state agency.
43-17-34. Navigable defined - Application of sections.
43-17-35. Fencing certain land on both sides of navigable stream permitted - Violation as misdemeanor.
43-17-36. Promulgation of rules for safe use of stream.
43-17-37. Repealed.
43-17-38. Gate or opening required in fence constructed across certain streams - Federally-navigable rivers - Public access - Violation as misdemeanor.
43-17-39. Repealed.
43-17-40. Responsibility for construction and maintenance of gate or opening.
43-17-41. Liability for damage from fencing on both sides of navigable streams.

 

43-17-1. Land below ordinary high-water mark of navigable lake or stream - Law governing ownership. The ownership of land below ordinary high-water mark, and of land below the water of a navigable lake or stream, is regulated by the laws of the United States or by such laws of the state as the Legislature may enact.

 

43-17-2. Upland owner taking to edge of navigable lake or stream at low-water mark - Exception - Navigable rivers and lakes public highways. Unless the grant under which the land is held indicates a different intent, the owner of the upland, if it borders upon a navigable lake or stream, takes to the edge of the lake or stream at low water mark. All navigable rivers and lakes are public highways within fifty feet landward from the water's nearest edge, provided that the outer boundary of such public highway may not expand beyond the ordinary high water mark and may not contract within the ordinary low water mark, and subject to §§ 43-17-29, 43-17-31, 43-17-32 and 43-17-33.

 

43-17-3. Lands forming in bed of navigable stream or meandered lake belong to state -Exception. Islands and accumulations of lands formed in the beds of streams which are navigable and in meandered lakes belong to the state, if there is no title or prescription to the contrary.

 

43-17-4. Opposite banks of nonnavigable stream belonging to different persons - Stream and bed common to both. In all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both.

 

43-17-5. Accretions to bank of river or stream belong to owner of bank subject to existing right-of-way. Where from natural causes, land forms by imperceptible degrees upon the bank of a river or stream, navigable or not navigable, either by accumulation of material or by the recession of the stream, such land belongs to the owner of the bank, subject to any existing right-of-way over the bank.

 

43-17-6. Surveying and subdividing accretion lands - Permanency of uncontested boundaries. When any tract of accretion lands shall have been, or may hereafter be, surveyed and subdivided by a licensed surveyor and approved by the circuit court and the boundaries of the various riparian owners have been established and have remained uncontested for a period of six years or more, after final judgment in the court having jurisdiction of the subject matter, such boundaries shall be permanent as long as the title is not lost by erosion or submergence or other laws governing accretion lands.

 

43-17-7. Notice of survey of accretion lands - Consent of interested parties necessary. Before commencing any such survey, the surveyor shall give ten days' notice, in writing by personal service upon all parties having an interest in such accretion lands, that each may be present at such survey if he so desires, and that no such survey shall be made without the written consent of the parties in interest or by order of the court having competent jurisdiction.

 

43-17-8. Plat of accretion lands by surveyor - Contents - Recording. The surveyor who makes such survey shall make a plat of such accretion lands, showing the acreage, the courses and distances, and the boundaries of all tracts, and record the same in the office of the register of deeds in the county in which the land is situated.

 

43-17-9. Attaching of additional land - Substitution of outer boundary of surveyed accretion land - Apportionment of new accreted land - Determination of boundary line. In the event additional lands shall thereafter become attached to such accretion land and subdivision of same, the outer boundary of the first surveyed accretion land shall be substituted and treated as though it were the original government meander line, and the new and additional accreted land shall be apportioned as in the original subdivision of the first accretion. Provided, however, that in the determination of the boundary line to be used, the circuit court shall determine as to whether or not the outer boundary line shall be substituted for the original government meander line, and said court shall determine the method of apportionment of such additional accreted land.

 

43-17-10. Title to land by avulsion - Reclamation by original owner of part of land carried away. If a river or stream, navigable or not navigable, carries away by sudden violence a considerable and distinguishable part of a bank and bears it to the opposite bank or to another part of the same bank, the owner of the part carried away may reclaim it within a year after the owner of the land to which it has been united takes possession thereof.

 

43-17-11. Stream forming new course - Abandonment of ancient stream bed - Owners of newly occupied land take ancient stream bed proportionately. If a stream, navigable or not navigable, forms a new course, abandoning its ancient stream bed, the owners of the land newly occupied take by way of indemnity the ancient stream bed abandoned, each in proportion to the land of which he has been deprived.

 

43-17-12. New arm of stream - Island formed by division belongs to owner of shore. If a stream, navigable or not navigable, in forming itself a new arm, divides itself and surrounds land belonging to the owner of the shore and thereby forms an island, the island belongs to such owner.

 

43-17-13. Ownership of island or accumulation of land in nonnavigable stream. An island or accumulation of land formed in a stream which is not navigable belongs to the owner of the shore on that side where the island or accumulation is formed, or if not formed on one side only, to the owners of the shore on the two sides, divided by an imaginary line drawn through the middle of the river.

 

43-17-14. Land acquired by reliction - Apportionment and division - Preparation, contents and recording of survey. It shall be the duty of all owners of land acquired by reliction to cause the same to be apportioned and divided among the various owners entitled thereto and to have the same surveyed, marking each separate tract "Relicted lot No. ________," numbering consecutively, beginning with the number "1," by a registered land surveyor and to cause such survey to show the area of and boundaries of each tract to be recorded in the office of the register of deeds within the county or counties where such land is situated within three months from the appropriation thereof.

 

43-17-15. Failure or neglect of owners of land acquired by reliction to plat land - Enforcement action by municipal officials. In the event that any owner or owners of land acquired by reliction shall fail or neglect to comply with the provisions of § 43-17-14 within the time therein specified the supervisors of the township or townships, or trustees or city council or commissioners of the municipality where such relicted land or any part thereof is situated, or either of them, may institute an action in the circuit court of the county where such land or any part thereof is situated against the owners of such lands to compel and cause the subdivision of such relicted lands in the proper proportions among the various owners thereof and that the same be surveyed by a competent surveyor, such survey, showing the area and boundaries of such relicted land to which each owner is entitled, to be made and recorded in the office of the register of deeds of the county or counties where any such land or any part thereof is situated.

 

43-17-16. Action to enforce survey of land acquired by reliction - Determination of ownership - Appointment of commissioners to divide and survey relicted lands. The circuit court may upon the trial of any action under § 43-17-15 ascertain and determine by its judgment the owners of the relicted land and cause the same to be surveyed and shall appoint three competent disinterested persons, one of whom shall be a competent surveyor, to divide and survey such relicted lands so as to show the boundaries and area of the amount of such relicted lands to which each owner is entitled in accordance with the directions and judgment of said court.

 

43-17-17. Plat and survey of relicted lands by commissioners - Report in writing - Filing with clerk of courts. The commissioners appointed pursuant to § 43-17-16 shall make their report in writing, including an accurate plat and survey of such relicted land marking each separate tract "Relicted lot No. ________" numbered consecutively, beginning with the number "1," and file the same with the clerk of courts within ninety days from the date of the order of the court appointing them.

 

43-17-18. Report and survey of relicted lands by commissioners - Adoption or modification by circuit court - Filing of certified copy of judgment - New trial and appeal. At the next succeeding term of such court or at any subsequent term to which the same may be continued, such action shall be brought on for final determination upon the report and survey of said commissioners and the court may adopt or modify the same so as to allow each owner such proportion of such relicted land as he may be lawfully entitled to and enter judgment accordingly; a certified copy of which judgment, showing the area of such relicted land to which each owner is entitled, shall be recorded in the office of the register of deeds in each county where such land or any part thereof is situated. Proceedings for new trial and appeal may be had the same as in other civil cases.

 

43-17-19. Costs of action to enforce plat and survey of relicted lands. The court may adjudge the defendants who are owners of such land or any part thereof to pay the costs and disbursements of such action in such proportions as the court may deem just and equitable, including a reasonable amount for the survey, the fees of recording, and reasonable counsel fees for the plaintiff, and three dollars per day for the two commissioners other than the surveyor and ten cents per mile for each mile by them necessarily traveled.

 

43-17-20. Establishment of water marks on lakes - Definition of terms. Terms used in §§ 43-17-21 to 43-17-26, inclusive, unless the context otherwise requires, mean:

    (1) "Board," the water management board created by § 1-40-15 and further defined in § 1-40-19;

    (2) "Ordinary high water mark," the term as defined in decisions rendered by the courts of this state;

    (3) "Ordinary low water mark," the term as defined in decisions rendered by the courts of this state.

43-17-21. Water management board to establish and mark high and low water marks on public lakes - Change on change in natural conditions. The water management board shall establish, pursuant to § 43-17-28 and in accordance with the contested case provisions of chapter 1-26, the ordinary high water mark and install benchmarks and may establish the ordinary low water mark on public lakes which are used for public purposes including, but not limited to boating, fishing, swimming, hunting, skating, picnicking and similar recreational pursuits. The board may rescind and redetermine the ordinary high water mark and ordinary low water mark, in accordance with the contested case provisions of chapter 1-26, should significant natural changes occur in these levels as determined by the board.

 

43-17-22. Priority list for establishment of water marks on lakes - Criteria considered - Public hearings. Repealed by SL 1985, ch 337, § 4.

 

43-17-23. Natural factors given precedence in water marks - When man-made influences considered. In determining the ordinary high water mark, natural factors take precedence. Man-made influences, either those that have been constructed to lower the mark or those constructed to raise the mark, shall be disregarded unless the influences have been lawfully constructed or have existed and been accepted for a period of time determined by the water management board to be the equivalent of natural conditions.

 

43-17-24. Investigation of site where water mark to be established - Consultation with other agencies - Public hearings. To determine the ordinary high water mark and ordinary low water mark for a lake, the water management board may on the application of any of the parties or on its own motion, physically investigate the site, confer with other state and local agencies having responsibilities in the lake or its bed, and may hold public hearings in addition to those required by chapter 1-26.

 

43-17-24.1. Notice of public hearings on water marks. The water management board shall serve notice on all persons who can be identified with reasonable diligence and who own property which may be affected by a water mark determination, of the date of the hearing required by this chapter. Notice shall consist of service by first-class mail at least twenty days prior to the hearing and publication in an official newspaper in each county where a lake is located at least once a week for two consecutive weeks. The second publication shall occur at least four days before the initial day of the board meeting at which the hearing will be held.

 

43-17-24.2. Prior decisions on water marks validated - Rights barred by no action. Any decision of the water management board setting a high water mark or a low water mark prior to January 1, 1992, is hereby cured, legalized and validated as fully as if the decision had been issued in full compliance with § 43-17-24.

 

If any person has any vested right in any real or personal property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.

 

43-17-25. Reconsideration of water marks established by board - Final unless appealed to courts. The water management board shall reconsider its establishment of water marks upon request, if the request is made within a period of sixty days following the publication of the order establishing the water marks, and if additional pertinent information or data is made available to the board in the request. The decision on the establishment of water marks by the board, including those resulting from any reconsideration request, is final unless an appeal is made to the courts as provided by law.

 

43-17-26. Ownership and rights of use unaffected. Nothing in §§ 43-17-20 to 43-17-25, inclusive, shall be construed to alter rights of ownership and use of any lands bordering upon navigable lakes or streams or those portions of such lands between ordinary high water mark and ordinary low water mark.

 

43-17-27. Marks previously determined not affected - Effect on pending proceedings for determination. The provisions of §§ 43-17-2, 43-17-20, 43-17-21, and 43-17-28 to 43-17-30, inclusive, do not affect any ordinary high or low water mark finally determined at law prior to March 2, 1985, the rights of ownership or use of any land bounded by an ordinary high or low water mark so established, nor any proceedings to establish an ordinary high or low water mark commenced but not finally determined prior to March 2, 1985. Public access, however, to lands below an ordinary high water mark established in proceedings commenced but not finally determined prior to March 2, 1985, shall be governed by § 43-17-2. With respect to lakes for which proceedings to establish the ordinary high water mark are initiated on or after March 2, 1985, the effective date of § 43-17-2 shall be July 1, 1986.

 

43-17-28. Persons who may request board determination - Jurisdiction of courts. The water management board shall determine any ordinary high or low water mark upon receiving a written request from an owner or lessee of real property riparian to a public lake, from twenty-five electors of the state or from a person seeking to develop, with approval by the department of game, fish and parks, the bed of a public lake for wildlife management purposes. The provisions of this section do not diminish the jurisdiction of the courts of this state otherwise to determine any ordinary high or low water mark in appropriate proceedings.

 

43-17-29. Public rights in lake above high water mark. If any water level rises above the ordinary high water mark of a navigable lake, the right of the public to enjoyment of the entire lake may not be limited, except that access to the lake shall be by public right-of-way or by permission of the riparian landowner and is subject to §§ 43-17-2, 43-17-31, 43-17-32 and 43-17-33.

 

43-17-30. Powers of department of game, fish and parks. Nothing in §§ 43-17-2, 43-17-20, 43-17-21, and 43-17-27 to 43-17-29, inclusive, diminishes any power of the department of game, fish and parks to administer, control or otherwise regulate any lands or interest in lands within its jurisdiction.

 

43-17-31. Landowner's right to deny public access to taxable property - Department to clearly mark certain inundated property - Exception. The provisions of §§ 43-17-2 and 43-17-29 notwithstanding, any landowner may deny public access to his taxable property, including inundated property if such property has been inundated for a period of at least three years, borders the water's edge and lies above the ordinary high water mark of a navigable lake that includes at least five thousand acres of inundated land in private ownership. A landowner who chooses to deny access to his inundated lake property pursuant to this section shall request the department of game, fish and parks to mark the boundaries of the affected property, and the department shall, upon request, clearly mark the restricted area so that the markings are plainly visible and understandable to a user of the lake. This section does not apply to public highways that are maintained for use by motor vehicles.

 

43-17-32. Landowner's right to deny state agency use of taxable property - Conditions for public access - Exceptions. Any landowner may deny a state agency the use of his taxable property, including inundated property if such property has been inundated for a period of at least three years, borders the water's edge and lies above the ordinary high water mark of a navigable lake that includes at least five thousand acres of inundated land in private ownership. Any state agency may allow public access for stated purposes to taxable private property if the landowner has given his permission for such access and use and if all taxes paid by the landowner on the property for the period in which the property is open to public use are reimbursed by the state agency. This section does not apply to public highways that are maintained for use by motor vehicles.

 

43-17-33. Public access to private lands pursuant to § 43-17-32 - Identification of affected property by state agency. If public access to taxable private lands is allowed by a state agency pursuant to § 43-17-32, the agency shall identify and mark the affected property in a manner that is plainly visible and understandable to a user of the property.

 

43-17-34. Navigable defined - Application of sections. 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. 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 and 43-17-38.

 

43-17-35. Fencing certain land on both sides of navigable stream permitted - Violation as misdemeanor. Any person who owns any tract of agricultural land on both sides of a navigable stream may, individually, fence such tract, or any persons who collectively own any tract of agricultural land on both sides of a navigable steam may, collectively, fence such tract:

(1) If livestock are annually pastured on such tract;

(2) If the fence is reasonably necessary to prevent the livestock from straying from such tract;

(3) If the fence is so constructed and so marked that it does not, under daytime and nighttime conditions, constitute a danger to the public; and

(4) If the fence is so constructed that the right of the public to utilize the navigable stream is not prohibited or unduly restricted.

 

This section does not apply to any river or stream or portion of any river or stream that has been determined to be navigable pursuant to federal law. Construction of a fence in violation of this section is a Class 2 misdemeanor.

 

43-17-36. Promulgation of rules for safe use of stream. The water management board shall promulgate rules pursuant to chapter 1-26 to establish criteria, standards and requirements for appropriate gates, switchbacks or other devices that permit safe use of the stream and passage of boats, canoes or other vessels, pedestrians and snowmobiles in accordance with § 43-17-35.

 

43-17-37. Variance request from adjacent landowners. Repealed by SL 2016, ch 214, § 2.

 

43-17-38. Gate or opening required in fence constructed across certain streams--Federally-navigable rivers--Public access--Violation as misdemeanor. 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) Flandreau Creek, from the Minnesota state boundary to the Big Sioux River, located in Moody County;

(6) Vermillion River, from Lake Vermillion to the Missouri River;

(7) East fork of the Vermillion River, from Interstate 90 to Lake Vermillion, located in McCook County;

(8) Splitrock Creek, from the Minnesota state boundary to the Big Sioux River, located in Minnehaha County;

(9) Firesteel Creek, that portion located in Davison County;

(10) Little White River, from the Bennett-Todd County boundary to the White River, located in Todd and Mellette Counties;

(11) White River, from the Nebraska state boundary to the Missouri River;

(12) Bad River, from the Stanley-Jones County boundary to the Missouri River, located in Stanley County;

(13) Cheyenne River, from 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;

(14) Moreau River, from Highway 63 to the Missouri River;

(15) Grand River, from Shadehill Reservoir to the Missouri River; and

(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 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 is not impaired or unduly restricted if fences crossing such other navigable streams are not provided with a gate or opening. This 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.

 

43-17-39. Petition to add to, or delete from, list of streams requiring gates. Repealed by SL 2016, ch 214, § 4.

 

43-17-40. Responsibility for construction and maintenance of gate or opening. The responsibility for construction and maintenance of any gate or opening required pursuant to §§ 43-17-35 and 43-17-36 in a fence across a stream that is navigable pursuant to § 43-17-34 shall be shared equally among those persons who caused the fence to be constructed. Any liability arising from the construction of a fence across a stream that is navigable pursuant to § 43-17-34 shall be borne by those persons who caused the fence to be constructed.

 

43-17-41. Liability for damage from fencing on both sides of navigable streams. No cause of action may arise against the owners, tenants or lessees of any real estate for any injury to any person or death resulting therefrom or damage to property of the person in connection with the fencing of agricultural land on both sides of navigable streams if such fencing is in accordance with the provisions of § 43-17-35.

This section does not affect the doctrine of attractive nuisance or other legal doctrines relating to the liability arising from artificial conditions highly dangerous to children.

4oiGIFNEIEJJVCBEZXRlY3Rpb24=