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Barb wire runs across part of Firesteel Creek in South Dakota on Dec. 9. The state Water Management Board is looking at whether the Firesteel Creek is designated as a navigable stream. (Matt Gade/Republic)

Landowners don't have to keep fence gates across SD creek

PIERRE — The state Board of Water Management decided Wednesday landowners don't need gates in their fences any longer across much of Firesteel Creek in Davison County. 

Gates will still be required on fences that cross the stream between Lake Mitchell and Loomis Oil Road northwest of the city.

That segment of about two miles receives the highest traffic from kayakers and canoeists, according to testimony.

There also aren't any landowners raising livestock along that stretch.

It was the first time in 21 years that the board changed any waterway's gate designation.

Landowners led by Gary Bussmus, of Mitchell, wanted the board to repeal the gate requirement for the entire length of the creek within the county.

They said stream users sometimes left gates open, allowing cattle to wander. That has led to herds mixing. At least three cattle have died on the road after vehicles struck them.

Amy Puepke, of Mitchell, said calves occasionally needed medical attention after their hooves caught in discarded beverage cans.

Board member Rodney Freeman, of Huron, offered the compromise to require gates only along the two miles directly above Lake Mitchell. The board voted 4-3 in favor. Board chairman Jim Hutmacher, of Oacoma, cast the deciding aye.

Hutmacher said he hopes people who paddle kayaks and canoes or ride snowmobiles don't start taking wire-cutters along to get through fences upstream of Loomis Oil Road.

"My concern is, I don't want this to turn into a real battle, which it may," Hutmacher said.

Any one who presented testimony on the matter to the board has 10 days to file a petition seeking an appeal.

Bussmus accepted the compromise and thanked the board as he left the meeting.

"We just want it closed where the cattle begin," he said.

In October, the board rejected his attempt to remove the navigable-waterway designation from Firesteel Creek.

The land forming the streambed below the creek and alongside it would have been closed to public use if the navigable designation had been lifted. The water itself in the creek would be open to the public either way.

Mark Puetz, of Mitchell, who owns land along Firesteel Creek, spoke against repealing the gate requirement for the entire length of the creek in Davison County, but said he understood the landowners' issues and could accept the compromise.

Puetz said he serves on the Lake Mitchell advisory board and kayaks on Firesteel Creek, but hasn't paddled upstream of Loomis Oil Road. He said he couldn't speak for all other kayakers and canoeists, but there probably would be support for the change.

"I know there are a fair amount that would look at that and say it is a reasonable compromise," Puetz said.

Also opposing the full repeal was Roger Foote, of Watertown, speaking for the South Dakota Canoe and Kayak Association. Foote said he knew of about 10 people from the Mitchell area who paddle the creek.

The state Game, Fish and Parks Department opposed the change, as well.

The Legislature in 1990 enacted stream-fencing laws and authorized the Water Management Board to establish the rules for safe use and passage of boats, canoes and other vessels, pedestrians and snowmobiles.

The Legislature then in 1992 approved a list of specific streams where fence gates are required.

The law, in an unusual delegation of legislative authority, also gave the Water Management Board the power to remove streams or segments from the gates list or to add to the list.

The public is allowed under the law to petition the board for a change. That is the process Bussmus followed.

The board's decision can be nullified, however, on appeal through a second petition.

That appeal petition goes through the state water rights engineer to the Legislature. The final decision then would be up to the Legislature.

The board exercised its power to change the gates list three times, in 1992, 1993 and 1994, affecting five streams, according to Ron Duvall, a staff member for the state Department of Environment and Natural Resources. The department oversees the stream-fencing regulations.

The laws and list can be found in chapter 43-17 of the South Dakota legal code. However the list currently found in law doesn't reflect the changes made by the state board.