Legislators: Fence gates must remain across SD creek

PIERRE, S.D. - The complicated fight over using Firesteel Creek in Davison County for recreational boating and snowmobiling took another twist Dec. 14.

Barb wire runs across part of Firesteel Creek on Wednesday. The state Water Management Board is looking at whether the Firesteel Creek is designated as a navigable stream. (Matt Gade/Republic)
Legislators have decided, in a turn of events, the fence gates must remains across Firesteel Creek in Davison County, S.D. (Photo by FNS)

PIERRE, S.D. – The complicated fight over using Firesteel Creek in Davison County for recreational boating and snowmobiling took another twist Dec. 14.

The Legislature’s Rules Review Committee decided fences across the creek’s entire length in the county must have gates so watercraft and snowmobiles can pass. The legislative panel found the state Water Management Board didn’t sufficiently consider opponents’ views at a public hearing Dec. 9. The water board had lifted the gate requirement on almost the full length of the creek in the county, except the two miles upstream of Lake Mitchell. Agricultural producers with land along the creek asked the board to repeal the gate requirement on all of it. Kayakers, canoeists and snowmobilers opposed the change. The board compromised by requiring gates only on the two-mile stretch that witnesses testified was used most frequently. The board’s vote was 4-3. But the legislative committee overturned that Dec. 14, voting unanimously to send the proposed change back to the board for further action. Reverting a proposed rule blocks it from taking effect. The legislative committee examines whether the correct process was followed for a rule proposal and rarely takes the step of reverting one. Rep. Timothy Johns, R-Lead, said the proposed change should go back to the board for another public hearing in March. Johns, a retired circuit judge, said his review of the entire record shows the public’s use is significant and would be negatively affected. “I would submit in this case a gate would be a very reasonable accommodation,” Johns said. The dispute is tied to another local issue regarding quality of water flowing into Lake Mitchell. Neither side had any witnesses testify Monday to the legislators. But each of the six legislators on the review panel had something to say or raised questions. None of their comments supported the landowners. Sen. Mike Vehle, R-Mitchell, is chairman of the rules review committee and lives along Lake Mitchell. “I’ve looked at this. We always say here, no matter what the rule, you have to consider those who are against the rule and why they are against the rule,” Vehle said. Approximately half of the opponents who sent comments to the board said their use of snowmobiles would be affected, and snowmobiles are specifically listed in the state law, according to Vehle. He said it would be difficult for snowmobilers to use the creek if there weren’t gates in the fences. The fences cross the creek in various places to keep cattle in pastures and off neighbors’ land. Rep. Peggy Gibson, D-Huron, said anyone could have signed the petition requesting the repeal of the gates requirement, regardless whether they owned land along the creek or even lived in the county. The water board in October upheld the designation of Firesteel Creek as a navigable waterway. The navigable designation makes it a highway with the water open to public use if it can be reached.  The fence-gate decision is separate.  “I am not at all about taking a navigable waterway away from public access,” Gibson said. The Legislature approved the stream-fencing law and the gate requirements in 1992. The law authorizes the state board to repeal the gate requirements under certain conditions and through a complex process. The Firesteel Creek gates repeal would have been the first since 1994.

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