Navigable streams in South Dakota are considered public highways and the right of the public to use navigable streams can not be prohibited or unduly restricted. To address public use of navigable streams and landowner issues, legislation was enacted in 1990 to allow fencing of certain navigable streams provided that a gate be installed in the fence crossing the stream. Rivers and creeks in the state where gates are required in fences include portions of the Bad, Big Sioux, Cheyenne, East Vermillion, Elm, Grand, Little White, Moreau, Redwater, Vermillion, and White rivers; and Flandreau, Firesteel, Moccasin, Splitrock, and Turtle creeks.
The Missouri river, James river, Boise des Sioux river, and the lower five miles of the Big Sioux river are designated as navigable rivers pursuant to federal law and may not be fenced with or without a gate.
Gate and Fence Requirements. Fences constructed across navigable streams are required to have a gate with a minimum opening size of 6-feet high by 6-feet wide and the opening must be outlined with reflective tape or other highly visible material. In addition, reflectors or highly visible material must also be attached to the fence connecting the gate with the stream bank, and the reflectors must be no more than 25 feet apart and visible from both up and downstream. If no livestock are present, then the gates need to be removed or kept open.
Fence Registration. State law also requires that the location of these fences must be registered with the Chief Engineer of the Water Rights Program in the Department of Environment and Natural Resources. Stream fence crossings can be registered by completing an online registration form or downloading a form and returning the completed registration by either sending a fax to Mark Rath at (605) 773-4068 or mailing the registration to the Water Rights Program, 523 E Capitol, Pierre SD 57501.
Resources. A "Guide to Fencing of Navigable Streams" brochure is available in an Adobe PDF format. This brochure outlines the responsibilities of landowners and recreationists as well as fencing requirements. The brochure may be printed for personal use or distribution. For the best results, print the brochure on legal size (81/2 X 14 inch) paper. In addition, a complete listing of applicable statutes and rules are available for review in South Dakota Codified Laws 43-17-34 through 43-17-41 and Administrative Rules of South Dakota Chapter 74:02:10.
If you have any questions regarding stream fencing, please contact Mark Rath at (605) 773-3352 or by e-mail.