2015 North Dakota Century Code Title 61 Waters Chapter 61-38 Dredged and Fill Material Disposal
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CHAPTER 61-38
DREDGED AND FILL MATERIAL DISPOSAL
61-38-01. (Contingent effective date - See note) Definitions.
The state engineer shall adopt definitions that are consistent with federal law for, among
other words: "dredged material", "fill material", "general permit", "person", "waters of the state",
and "wetlands".
61-38-02. (Contingent effective date - See note under section 61-38-01) Powers.
The state engineer has the following powers:
1. To exercise general supervision of the administration and enforcement of this chapter
and all rules and orders adopted pursuant to this chapter.
2. To advise, consult, and cooperate with other agencies of the state, the federal
government, and other states and interstate agencies, and with affected groups,
political subdivisions, and industries in furtherance of the purposes of this chapter.
3. To accept and administer loans and grants from the federal government and from
other sources, public or private, for carrying out any of its functions, which loans and
grants may not be expended for other than the purposes for which provided.
4. To enter upon or through a permittee's premises where dredged or fill material is
discharged, after written notice to the permittee. Such power may be exercised by
authorized agents, representatives, and employees of the state engineer.
5. To exercise all incidental powers necessary to carry out the purposes of this chapter.
6. To make rules governing the application, issuance, denial, modification, or revocation
of permits for the discharge of dredged or fill material into waters of the state and for
the administration of this chapter.
7. To hold any hearings necessary for the administration of this chapter.
8. To initiate actions in court for the enforcement of this chapter, including actions to
enjoin any threatened or continuing violation of any requirement.
9. To issue administrative orders to restrain any person from engaging in any
unauthorized activity.
10. To take all action necessary or appropriate to secure to the state the benefits of
section 404 of the Clean Water Act [33 U.S.C. 1344].
61-38-03. (Contingent effective date - See note under section 61-38-01) Permits Certification from state department of health required.
The state engineer may not issue a permit under this chapter without a certification from the
state department of health that the permitted activity will not adversely affect water quality.
61-38-04. (Contingent effective date - See note under section 61-38-01) Specification
of disposal sites.
The state engineer shall specify a disposal site for each permit issued. Each disposal site
must be specified for each permit through application of rules adopted by the state engineer.
The rules must be consistent with federal law. The state engineer may prohibit the specification
of any defined area as a disposal site, withdraw any defined area from specification as a
disposal site, or deny or restrict the use of any defined area for specification as a disposal site
whenever the state engineer determines, after notice and opportunity for public hearing, that the
discharge of dredged or fill materials will have an unacceptable adverse effect on municipal
water supplies, shellfish beds and fishery areas, wildlife, or recreational areas.
61-38-05. (Contingent effective date - See note under section 61-38-01) Discharge of
dredged or fill material - Permit required - Exceptions.
1. Except as otherwise provided by this chapter, no person may discharge dredged or fill
material into waters of the state unless that person has a permit from the state
engineer. No person may discharge dredged or fill material in violation of a permit. A
permit is not required for:
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a.
2.
The discharge of dredged or fill material when an activity is authorized by a
general permit issued pursuant to section 61-38-06;
b. Normal farming, silviculture, and ranching activities such as plowing, seeding,
cultivating, minor drainage, harvesting for the production of food, fiber, and forest
products, or upland soil and water conservation practices;
c. Maintenance, including emergency reconstruction of recently damaged parts, of
currently serviceable structures such as dikes, dams, levies, groins, riprap,
breakwaters, causeways, bridge abutments or approaches, and transportation
structures, which does not change the character, scope, or size of the original fill
design;
d. Construction or maintenance of farm or stock ponds or irrigation ditches or the
maintenance of drainage ditches;
e. Construction of temporary sedimentation basins on a construction site which
does not include placement of fill material into waters of the state;
f. Construction or maintenance of farm roads or forest roads, or temporary roads for
moving mining equipment, where such roads are constructed and maintained, in
accordance with best management practices, to assure that flow and circulation
patterns and chemical and biological characteristics of the waters of the state are
not impaired, that the reach of the waters of the state is not reduced, and that any
adverse effect on the aquatic environment will be otherwise minimized; or
g. The placement of fill material associated with activities which the state regulates
by requiring best management practices under chapter 61-28.
Any discharge of dredged or fill material into waters of the state incidental to any of the
activities identified in subdivisions a through g of subsection 1 must have a permit if it
is part of an activity whose purpose is to convert an area of waters of the state into a
use to which it was not previously subject, where the flow or circulation of waters of the
state may be impaired or the reach of such waters reduced, or if the discharge
contains a toxic pollutant. Where the proposed discharge will result in significant
discernible alterations to flow or circulation, the presumption is that flow or circulation
may be impaired by such alteration.
61-38-06. (Contingent effective date - See note under section 61-38-01) General
permits.
1. In carrying out the functions relating to the discharge of dredged or fill material, the
state engineer may, after notice and opportunity for public hearing, issue general
permits on a state or regional basis for any category of activities involving discharges
of dredged or fill material if the state engineer determines that the activities in the
category are similar in nature, will cause only minimal adverse environmental effects
when performed separately, and will have only minimal accumulative adverse effects
on the environment. Any general permit issued under this section must set forth the
requirements and standards which apply to any activity authorized by the general
permit. General permits must be issued pursuant to rules adopted by the state
engineer which are consistent with federal law.
2. A general permit may be revoked or modified by the state engineer if, after opportunity
for public hearing, the state engineer determines that the activities authorized by the
general permit have an adverse impact on the environment or such activities are more
appropriately authorized by individual permits.
3. The state engineer may require an individual permit for any proposed activity under a
general permit where the nature or location of the activity makes an individual permit
more appropriate.
61-38-07. (Contingent effective date - See note under section 61-38-01) Emergency
permits.
The state engineer may issue a temporary emergency permit for the discharge of dredged
or fill material if unacceptable harm to life or severe loss of physical property is likely to occur
before a permit could be issued or modified under procedures normally required.
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61-38-08. (Contingent effective date - See note under section 61-38-01) Permit
application - Notice - Hearing.
Any person desiring to discharge dredged or fill material for which a permit is required shall
file an application with the state engineer. The application must be on a form prescribed by the
state engineer and must include information required by the state engineer. The state engineer
may issue a permit after notice and opportunity for public hearing. Within fifteen days of receipt
of all the information required to complete an application for a permit, the state engineer shall
publish the notice.
61-38-09. (Contingent effective date - See note under section 61-38-01) Proceedings.
1. Any proceeding to determine compliance or violation of the provisions of this chapter
or any rule, order, or condition in a permit issued pursuant to this chapter by the state
engineer must be conducted in accordance with chapter 28-32.
2. Any person claiming to be aggrieved or adversely affected by actions taken or by any
rule or order issued pursuant to this chapter may request a hearing by the state
engineer if no hearing on the matter resulting in the action has been held. If a hearing
has been held, the person claiming to be aggrieved or adversely affected may petition
for reconsideration and may appeal in accordance with chapter 28-32.
61-38-10. (Contingent effective date - See note under section 61-38-01) Penalties.
The state engineer may assess or sue to recover civil penalties and seek criminal remedies
as provided in this section.
1. The state engineer may assess or recover civil penalties for discharges of dredged or
fill material without a required permit or in violation of any permit condition of up to five
thousand dollars per day of such violation.
2. The state engineer may seek criminal fines against any person who willfully or with
criminal negligence discharges dredged or fill material without a required permit or
violates any permit condition issued under this chapter of up to ten thousand dollars
per day of such violation.
3. The state engineer may seek criminal fines against any person who knowingly makes
a false statement, representation, or certification in any application, record, report,
plan, or other document filed or required to be maintained under this chapter or any
rules adopted pursuant to this chapter, or falsifies, tampers with, or knowingly renders
inaccurate any monitoring device or method required to be maintained under the
permit of up to five thousand dollars for each instance of violation.
61-38-11. (Contingent effective date - See note under section 61-38-01) Restoration.
In lieu of or in addition to the penalties authorized under section 61-38-10, the state
engineer may require restoration of areas in which dredged or fill material has been illegally
discharged. If the state engineer determines that any person has discharged dredged or fill
material without a permit or in violation of any permit condition, the state engineer shall notify
the person by registered or certified mail. The notice must specify the nature and extent of
noncompliance and state that the area in which the dredged or fill material is located must be
restored to the satisfaction of the state engineer within thirty days of receipt of the notice. If the
area is not restored as required, the state engineer shall cause the restoration of the area and
assess the cost of the restoration against the person or persons responsible for the illegal
discharge.
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