2015 North Dakota Century Code Title 61 Waters Chapter 61-03 State Engineer
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CHAPTER 61-03
STATE ENGINEER
61-03-01. State engineer - Appointment - Qualifications - Term - Salary - Engaging in
private practice.
A state engineer shall be appointed by the state water commission. Such engineer shall be
a technically qualified and experienced hydraulic engineer and also shall be an experienced
irrigation engineer. The state engineer shall serve as secretary and chief engineer of the
commission. Such engineer shall hold the office for such term as the commission may
determine, and the commission shall fix the state engineer's salary and shall allow the state
engineer's actual and necessary traveling expenses while away from the office in the discharge
of official duties. The state engineer shall not engage in private practice but shall devote all of
the state engineer's time to the duties and requirements of the office.
61-03-02. Oath of state engineer.
Before entering upon the duties of office, the state engineer shall take the oath prescribed
for civil officers.
61-03-03. Auditing of claims.
All claims for services rendered, expenses incurred, or materials or supplies furnished
under direction of the state engineer and which are payable from the funds appropriated for the
prosecution of the work under the state engineer's direction and supervision shall be approved
by the state engineer.
61-03-04. Biennial report.
The state engineer may submit a biennial report to the governor and the secretary of state
in accordance with section 54-06-04.
61-03-05. Fees of state engineer.
Repealed by S.L. 2015, ch. 471, § 4.
61-03-05.1. Deposit of certain fees in special fund - Purposes of fund.
All fees collected by the state engineer pursuant to sections 61-04-04.1 and 61-04-06.2
shall be deposited in the state treasury in a special fund to be known as the water use fund, and
shall be used only for planning, research, and administration required to properly regulate the
allocation and appropriation of the waters of North Dakota. The water use fund may be
expended subject to appropriation by the legislative assembly for the purpose of meeting the
costs directly incurred in conducting the planning and administration required for the proper
regulation of the allocation and appropriation of the waters of the state.
61-03-06. Records of state engineer - Open to public - Contents - Certified copies as
evidence.
The records of the office of the state engineer are public records, shall remain on file in the
state engineer's office, and shall be open to the inspection of the public at all times during
business hours. Such records shall show in full all permits, certificates of completion of
construction, and licenses issued, together with all action thereon, and all action or decisions of
the state engineer affecting any rights or claims to appropriate water. Certified copies of any
records or papers on file in the office of the state engineer shall be evidence equally with the
originals thereof, and when introduced as evidence shall be held as of the same validity as the
originals.
61-03-07. Investigations and reports for board of university and school lands.
Repealed by S.L. 1989, ch. 747, § 1.
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61-03-08. Duty of state engineer to cooperate with boards of county commissioners
when requested.
Whenever requested so to do by the board of county commissioners of any county of this
state, the state engineer shall cooperate with such board in the engineering work required to lay
out, establish, and construct any drain to be used by any county or counties or portions of the
same for the purpose of diverting floodwaters, lakes, or watercourses, and in general shall aid
and assist the counties of this state in making preliminary surveys and establishing systems of
drainage.
61-03-09. State engineer's duties in construction of bridges and culverts.
Repealed by S.L. 1989, ch. 747, § 1.
61-03-10. Custodian of government plats.
The state engineer shall be custodian of all plats, field notes, and records that have been or
hereafter may be turned over to the state by the government. Suitable rooms shall be provided
in the capitol building containing vaults for fireproof protection and the safekeeping of such
records, and free access to any such field notes, maps, records, and other papers for the
purpose of taking extracts therefrom or making copies thereof without charge of any kind, shall
be allowed to all officers or employees of the United States during office hours.
61-03-11. Furnishing copies.
Repealed by S.L. 1993, ch. 595, § 2.
61-03-12. Attorney general and state's attorney advisers of state engineer.
The attorney general, and the state's attorney of the county in which legal questions arise,
shall be the legal advisers of the state engineer, and shall perform any and all legal duties
necessary in connection with the state engineer's work, without compensation other than their
salaries as fixed by law, except when otherwise provided.
61-03-13. Rules and regulations made by state engineer - Modification.
The state engineer shall make all general rules necessary to carry into effect the duties
devolving upon the state engineer's office, and may change the same from time to time. All such
rules relating to applications for permits to appropriate water, for the inspection of works, for the
issuance of licenses, and for the determination of rights to the use of water shall be modified by
the state engineer, if required by a vote of the state water commission.
61-03-14. Modification of rules and regulations of engineer voted upon only upon
appeal from engineer.
The modification of the rules and regulations of the state engineer provided for in section
61-03-13 shall be voted upon by the state water commission only on an appeal from a decision
of the state engineer.
61-03-15. Hydrographic surveys and investigations made by state engineer Cooperating with federal agencies.
The state engineer shall make hydrographic surveys and investigations of each stream
system and source of water supply in the state, beginning with those most used for irrigation,
and shall obtain and record all available data for the determination, development, and
adjudication of the water supply of the state. The state engineer may cooperate with the
agencies of the federal government engaged in similar surveys and investigations and in the
construction of works for the development and use of the water supply of the state, expending
for such purposes any money available for the work of the state engineer's office. The state
engineer may accept and use, in connection with the operation of the state engineer's
department, the results of the work of the agencies of the government.
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61-03-16. Suit for adjudication of water rights.
Upon the completion of a hydrographic survey of any stream system, the state engineer
shall deliver a copy thereof, together with copies of all data necessary for the determination of
all rights to the use of the waters of such system, to the attorney general of the state, who,
within sixty days thereafter, shall enter suit on behalf of the state for the determination of all
rights to the use of such water, and shall prosecute the same to a final adjudication. If the suit
for the adjudication of such rights shall have been begun by private parties, the attorney general
shall not be required to bring suit, except that the attorney general shall intervene in any suit for
the adjudication of rights to the use of water, on behalf of the state, if notified by the state
engineer that, in the state engineer's opinion, the public interest requires such action.
61-03-17. Parties to and costs of suit for adjudication of water rights.
In any suit for the determination of a right to the use of the waters of any stream system, all
who claim the right to use such waters shall be made parties. When any suit has been filed, the
court, by its order duly entered, shall direct the state engineer to make or furnish a complete
hydrographic survey of such stream system as is provided in this chapter, in order to obtain all
data necessary to the determination of the rights involved. The cost of such suit, including the
costs on behalf of the state, and of such surveys, shall be charged against each of the private
parties thereto in proportion to the amount of the water right allotted.
61-03-18. Hydrographic survey fund - Use - Payments.
The hydrographic survey fund, a permanent fund, shall be used only for the payment of the
expenses of the surveys ordered by the court as provided in section 61-03-17. All claims for
services rendered, expenses incurred, or materials or supplies furnished under the direction of
the state engineer in the prosecution of such surveys shall be approved by the state engineer.
The amounts paid by the parties to such suits, on account of such surveys, shall be paid to the
state treasurer, who shall credit the same to such fund, which shall continue to be available for
advancing the expenses of such surveys, as ordered by the court from time to time.
61-03-19. Decree adjudicating water rights - Filing - Contents.
Upon the adjudication of the rights to the use of the waters of a stream system, a certified
copy of the decree shall be prepared by the clerk of the court, at the cost of the parties, and
shall be filed in the office of the state engineer. Such decree, in every case, shall declare as to
the water right adjudged to each party, the priority, amount, purpose, and place of use, and, as
to water used for irrigation, the specific tracts of land to which it shall be appurtenant, together
with such other conditions as may be necessary to define the right and its priority.
61-03-20. State engineer to cooperate with United States geological survey in making
topographic maps.
The state engineer may confer with the director of the United States geological survey and
may accept the cooperation of the United States with this state in the execution of topographic
surveys and maps of this state. The state engineer may arrange with the director or other
authorized representative of the United States geological survey concerning the details of such
work, the method of its execution, and the order in which these surveys and maps of different
parts of the state shall be undertaken. In any such work, the director of the United States
geological survey shall agree to expend on the part of the United States upon said work a sum
equal to that appropriated by the state from time to time for this purpose. In arranging these
details the state engineer, in addition to such other provisions as the state engineer may deem
wise, shall require that the maps resulting from this survey show the outlines of all counties,
towns, and extensive wooded areas, as existing on the ground at the time of the execution of
the survey, the location of all railways, roads, streams, canals, lakes, and rivers, and contain
contour lines showing the elevation and depression for at least every twenty feet [6.10 meters]
in vertical interval of the surface of the country. The resulting map must recognize wholly the
cooperation of the state of North Dakota and, as each manuscript sheet of the map is
completed, the United States geological survey should furnish the state engineer with
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photographic copies of the same. As the engraving on each sheet is completed, the director
shall furnish the state engineer with transfers from the copperplates of the same.
61-03-21. State engineer may require plan of operation - Adequate structure.
Every operator of a water storage reservoir in North Dakota having a capacity of more than
one thousand acre-feet [1233481.84 cubic meters] shall annually, between the first and fifteenth
day of February, file with the state engineer an operating plan for such reservoir for the calendar
year in which the same is filed. The operator of any such reservoir shall be required to
cooperate with the state engineer to the end that all water releases shall be compatible with the
best interest of the greatest number of downstream water users and affected landowners. In the
event that the state engineer declares an emergency to exist in connection with the operation of
any such reservoir, the operator thereof shall promptly submit to the state engineer a separate
interim operating plan therefor in addition to the annual reservoir operating plan herein required.
Such interim operating plan shall then be coordinated and integrated with the suggestions and
plans of the state engineer to best serve the affected interests during such emergency. The
state engineer may also require such operators to maintain adequate structures and to operate
them in a manner that will prevent waste, promote the beneficial use of water, and not endanger
the general health and welfare of persons affected thereby. In the event such operator fails to
maintain and operate adequate structures in the manner provided in this section, the state
engineer shall set a place and time for hearing and shall serve notice upon such operator to
show cause at such time and place why the operator's water permit should not be declared
terminated and canceled. A copy of any order terminating or canceling such water right shall be
filed in the office of the recorder in the county or counties where the land to which the right is
appurtenant is located. An appeal may be taken from the decision of the state engineer in
accordance with the provisions of chapter 28-32.
61-03-21.1. Inspection by state engineer.
Whenever the state engineer is authorized or mandated by law to inspect or investigate an
alleged violation of a statute under this title, the state engineer shall have the authority to enter
upon land for the purposes of conducting such an inspection or investigation. Except in
emergency situations as determined by the state engineer, the state engineer shall request
written permission from the landowner to enter the property. If the landowner refuses to give
written permission, or fails to respond within five days of the request, the state engineer may
request the district court of the district containing the property for an order authorizing the state
engineer to enter the property to inspect or investigate the alleged violation.
61-03-21.2. Removal or modification of unsafe or unauthorized works.
If the state engineer pursuant to the state engineer's authority under this title determines
that works are unsafe or unauthorized, the state engineer shall notify the landowners by
registered mail at the landowner's last-known post-office address of record. A copy of the notice
must also be sent to any tenant, if the state engineer has actual knowledge of the fact that a
tenant exists. The notice must specify the nature and extent of the noncompliance, the
modifications necessary for compliance, and must state that if the works are not modified or
removed within the period stated in the notice, but not less than thirty days, the state engineer
shall cause the removal or modification of the works and assess the cost thereof, or such
portion as the state engineer shall determine, against the property of the landowner responsible.
The notice must also state that the affected landowner may, within fifteen days of the date the
notice is mailed, demand, in writing, a hearing upon the matter. The request for a hearing must
state with particularity the issues, facts, and points of law to be presented at the hearing. If the
state engineer determines the issues, facts, and law to be presented are well-founded and are
not frivolous and the request for a hearing was not made merely to interpose delay, the state
engineer shall set a hearing date without undue delay. In the event of an emergency, the state
engineer may immediately apply to the appropriate district court for an injunction prohibiting the
landowner or tenant from constructing or maintaining the works, or ordering the landowner to
remove or modify the works. Any assessments levied under the provisions of this section must
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be collected in the same manner as other assessments authorized by this title. If, in the opinion
of the state engineer, more than one landowner or tenant has been responsible, the costs may
be assessed on a pro rata basis in proportion to the responsibility of the landowners. Any
person aggrieved by action of the state engineer under the provisions of this section may appeal
the decision of the state engineer to the district court of the county in which the land is located in
accordance with the procedures provided under chapter 28-32. A hearing as provided for in this
section is a prerequisite to an appeal, unless the hearing was denied by the state engineer.
For purposes of this section, the term "works" includes dams, dikes, wells, or other devices
for water conservation, flood control, regulation, storage, diversion, or carriage of water.
61-03-21.3. Removal, modification, or destruction of dangers in, on the bed of, or
adjacent to navigable waters.
1. If the state engineer finds that buildings, structures, boat docks, debris, or other
manmade objects, except a fence or corral, situated in, on the bed of, or adjacent to
waters that have been determined to be navigable by a court are, or are likely to be, a
menace to life or property or public health or safety, the state engineer may issue an
order to the person responsible for the object. If the state engineer issues an order, the
order must specify the nature and extent of the conditions, the action necessary to
alleviate, avert, or minimize the danger, and a date by which that action must be taken.
If the state engineer determines that an object covered by flood insurance is likely to
be a menace to life or property or public health or safety, the date specified in the
order for action to be taken may not precede the date on which the person is eligible to
receive flood insurance proceeds. If a building, structure, boat dock, debris, or other
manmade object, except a fence or corral, is partially or completely submerged due to
the expansion of navigable waters, the person responsible is the person who owns or
had control of the property on which the object is located or the person who owned or
had control of the property immediately before it became submerged by water.
2. If the action is not taken by the date specified, but not less than twenty days from the
date of service of the notice, the state engineer may cause the action to be taken. The
state engineer may require the action to be taken in less than twenty days if an
emergency exists.
3. The state engineer may bring an action to enforce an order of the state engineer, or if
the state engineer causes the action to be taken, the state engineer may:
a. Assess the costs of taking such action, or such portion as the state engineer
determines, against any property of the person responsible; or
b. Bring a civil action against the person responsible to recover the costs incurred in
taking the action.
If the state engineer chooses to recover costs by assessing the cost against property
of the person responsible and the property is insufficient to cover the costs incurred,
the state engineer may bring a civil action to recover any costs not recovered through
the assessment process. Any assessments levied under this section must be collected
in the same manner as other real estate taxes are collected and paid. Any costs
recovered must be deposited in the fund from which the expenses were paid.
4. A person who receives an order, within ten days of the date of service of the order,
may demand, in writing, a hearing on the matter. The demand for a hearing must state
with particularity the issues, facts, and points of law to be presented at the hearing. If
the state engineer determines the issues, facts, and law to be presented are
well-founded and not frivolous, and the request for a hearing was not made merely to
interpose delay, the state engineer shall set a hearing date without undue delay.
5. In the event of an emergency, the state engineer may immediately apply to the district
court of the county in which the property is located for an injunction ordering the
person responsible to modify, remove, abate, or otherwise eliminate the dangerous
condition.
6. Any person aggrieved by the action of the state engineer may appeal the decision to
the district court of the county in which the land is located in accordance with
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7.
8.
chapter 28-32. A hearing as provided for in this section is a prerequisite to an appeal
unless the hearing was denied by the state engineer.
If the state engineer has issued an order under this section with regard to a building,
structure, boat dock, debris, or other manmade object that the state engineer has
determined is likely to be a menace to life or property or public health or safety, and it
later becomes known that the object would not have become a menace, a person who
has taken action required by the state engineer's order is entitled to compensation in
an amount equal to the value of any property destroyed and reasonable costs incurred
as a result of complying with the state engineer's notice.
Any person claiming compensation for the destruction of property or costs incurred
under subsection 7 must file a claim with the state engineer in the form and manner
required by the state engineer. Unless the amount of compensation is agreed to
between the claimant and the state engineer, the amount of compensation must be
calculated in the same manner as compensation due for taking of property pursuant to
the condemnation laws of this state. In determining compensation, the proceeds of any
flood or other insurance or any other kind of compensatory payments must be
subtracted from the amount paid.
61-03-22. Hearing - Appeals from decision of state engineer.
Any person aggrieved by an action or decision of the state engineer under this title has the
right to a hearing. The state engineer must receive the request for a hearing within thirty days
after the aggrieved person knew or should have reasonably known of the action or decision.
Once a hearing has been held or if the hearing request is denied, the person aggrieved has the
right to petition for reconsideration or appeal under chapter 28-32.
61-03-23. Penalties - Civil.
In addition to criminal sanctions that may be imposed pursuant to law, a person who
violates any provision of this title or any rules adopted under this title may be assessed a civil
penalty not to exceed twenty-five thousand dollars for each day the violation occurred and
continues to occur and may be required by the state engineer to forfeit any right to the use of
water. The civil penalty for violation of an irrigation appropriation permit may not exceed five
thousand dollars for each day the violation occurred and continues to occur. The civil penalty or
forfeiture of a right to use water may be adjudicated by the courts or by the state engineer
through an administrative hearing under chapter 28-32.
If a civil penalty levied by the state engineer after an administrative hearing is not paid
within thirty days after a final determination that the civil penalty is owed, the civil penalty may
be assessed against the property of the landowner responsible for the violation leading to the
assessment of the penalty. The assessment must be collected as other assessments made
under this title are collected. Notwithstanding the provisions of section 57-20-22, all interest and
penalties due on the assessment must be paid to the state. Any civil penalty assessed under
this section must be in addition to any costs incurred by the state engineer for enforcement of
the order.
61-03-24. Pending administrative actions and permits.
If an applicant for any permit processed by the state engineer has an unresolved
administrative order or complaint under this title, the permit will not be processed until the order
is complied with or complaint is resolved. At the state engineer's discretion, the permit may be
processed if issuing the permit would resolve the administrative order or complaint. If an
applicant is not an individual, this section applies if the applicant is at least twenty-five percent
owned by an individual with an unresolved administrative order or complaint under this title.
61-03-25. Emergency action plan - High-hazard or medium-hazard dam.
The owner of a high-hazard or medium-hazard dam shall develop, periodically test, and
update an emergency action plan to be implemented if there is an emergency involving the
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dam. The emergency action plan and any subsequent updates must be submitted to the state
engineer for approval.
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