2016 North Dakota Century Code Title 61 Waters Chapter 61-32 Drainage
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CHAPTER 61-32
DRAINAGE
61-32-01. Legislative policy and intent.
Repealed by S.L. 1995, ch. 599, § 3.
61-32-02. Definitions.
Repealed by S.L. 1995, ch. 599, § 3.
61-32-03. Permit to drain waters required - Penalty.
Any person, before draining a pond, slough, lake, or sheetwater, or any series thereof,
which has a watershed area comprising eighty acres [32.37 hectares] or more, shall first secure
a permit to do so. The permit application must be submitted to the state engineer. The state
engineer shall refer the application to the water resource district or districts within which is found
a majority of the watershed or drainage area of the pond, slough, lake, or sheetwater for
consideration and approval, but the state engineer may require that applications proposing
drainage of statewide or interdistrict significance be returned to the state engineer for final
approval. A permit may not be granted until an investigation discloses that the quantity of water
which will be drained from the pond, slough, lake, or sheetwater, or any series thereof, will not
flood or adversely affect downstream lands. If the investigation shows that the proposed
drainage will flood or adversely affect lands of downstream landowners, the water resource
board may not issue a permit until flowage easements are obtained. The flowage easements
must be filed for record in the office of the recorder of the county or counties in which the lands
are situated. An owner of land proposing to drain shall undertake and agree to pay the
expenses incurred in making the required investigation. This section does not apply to the
construction or maintenance of any existing or prospective drain constructed under the
supervision of a state or federal agency, as determined by the state engineer.
Any person draining, or causing to be drained, a pond, slough, lake, or sheetwater, or any
series thereof, which has a watershed area comprising eighty acres [32.37 hectares] or more,
without first securing a permit to do so, as provided by this section, is liable for all damage
sustained by any person caused by the draining, and is guilty of an infraction. As used in this
section, sheetwater means shallow water that floods land not normally subject to standing
water. The state engineer may adopt rules for temporary permits for emergency drainage.
61-32-03.1. Permit to drain subsurface waters required - Permit form - Penalty.
Installation of an artificial subsurface drainage system comprising eighty acres
[32.37 hectares] of land area or more requires a permit. The state engineer shall develop an
application form for a permit for subsurface drainage of water. A person seeking to construct an
artificial subsurface drainage system must submit an application to the water resource district
within which is found a majority of the land area for consideration and approval. Water resource
districts may attach any necessary conditions to an approved permit, but may not deny an
application unless the water resource district determines the application is of statewide
significance or the proposed drainage will flood or adversely affect lands of downstream
landowners within one mile [1.61 kilometers] of the proposed subsurface drainage. Water
resource districts must forward copies of all approved permits to the state engineer. Water
resource districts shall determine if the application proposes drainage of statewide significance.
If so, the application must be referred to the state engineer for consideration and approval, and
the state engineer shall make a determination within thirty days. The permit applicant shall
provide a thirty-day notice to downstream property owners within one mile [1.61 kilometers] of
the proposed subsurface drainage. If an investigation by a water resource district or a
downstream landowner within one mile [1.61 kilometers] shows that the proposed drainage will
flood or adversely affect lands of downstream landowners within one mile [1.61 kilometers], the
water resource district may require flowage easements before issuing a permit. If an artificial
subsurface drainage system drains into an assessment drain, natural watercourse, or pond,
slough, or lake, a flowage easement is not required. Flowage easements must be filed for
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record in the office of the recorder of the county or counties in which the lands are situated. A
person that installs an artificial subsurface drainage system without first securing a permit to do
so, as provided in this section, is liable for all damage sustained by a person caused by the
draining, and is guilty of an infraction.
61-32-04. Administration - Rulemaking authority - Guidelines.
Repealed by S.L. 1995, ch. 599, § 3.
61-32-05. Wetlands bank.
Repealed by S.L. 1995, ch. 599, § 3.
61-32-06. Uniform wetlands classification.
Repealed by S.L. 1995, ch. 599, § 3.
61-32-07. Closing a noncomplying drain - Notice and hearing - Appeal - Injunction Frivolous complaints.
1. Only a landowner experiencing flooding or adverse effects from an unauthorized drain
constructed before January 1, 1975, may file a complaint with the water resource
board. Any person may file a complaint about an unauthorized drain constructed after
January 1, 1975. Upon receipt of a complaint of unauthorized drainage, the water
resource board shall promptly investigate and make a determination of the facts with
respect to the complaint. If the board determines that a drain, lateral drain, or ditch has
been opened or established by a landowner or tenant contrary to this title or any rules
adopted by the board, the board shall notify the landowner by certified mail at the
landowner's post-office address of record. A copy of the notice must also be sent to the
tenant, if known. The notice must specify the nature and extent of the noncompliance
and must state that if the drain, lateral drain, or ditch is not closed or filled within a
reasonable time as the board determines, but not less than fifteen days, the board
shall procure the closing or filling of the drain, lateral drain, or ditch and assess the
cost of the closing or filling, or the portion the board determines, against the property
of the landowner responsible. The notice must also state that the affected landowner,
within fifteen days of the date the notice is mailed, may demand, in writing, a hearing
on the matter. Upon receipt of the demand, the board shall set a hearing date within
fifteen days from the date the demand is received. In the event of an emergency, the
board may immediately apply to the appropriate district court for an injunction
prohibiting the landowner or tenant from constructing or maintaining the drain, lateral
drain, or ditch and ordering the closure of the illegal drain. Assessments levied under
this section must be collected in the same manner as assessments authorized by
chapter 61-16.1. If, in the opinion of the board, 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. If a complaint is frivolous in the discretion of the
board, the board may assess the costs of the frivolous complaint against the
complainant.
2. Following the closing or filling of an unauthorized drain, either by a water resource
board or by a party complying with an order of a water resource board, the board may
assess its costs against the property of the responsible landowner.
61-32-08. Appeal of board decisions - State engineer review - Closing of
noncomplying drains.
1. The board shall make the decision required by section 61-32-07 within a reasonable
time, but not to exceed one hundred twenty days, after receiving the complaint. The
board shall notify all parties of its decision by certified mail. Any aggrieved party may
appeal the board's decision to the state engineer. The appeal to the state engineer
must be made within thirty days from the date notice of the board's decision has been
received. The appeal must be made by submitting a written notice to the state
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engineer, which must specifically set forth the reason why the board's decision is
erroneous. The appealing party shall also submit copies of the written appeal notice to
the board and to all nonappealing parties. Upon receipt of this notice the board, if it
has ordered closure of a drain, lateral drain, or ditch, is relieved of its obligation to
procure the closing or filling of the drain, lateral drain, or ditch. The state engineer shall
handle the appeal by conducting an independent investigation and making an
independent determination of the matter. The state engineer may enter property
affected by the complaint to investigate the complaint.
If the board fails to investigate and make a determination concerning the complaint
within a reasonable time, but not to exceed one hundred twenty days, the person filing
the complaint may file the complaint with the state engineer within one hundred fifty
days of the submittal date of the original complaint. The state engineer shall, without
reference to chapter 28-32, cause the investigation and determination to be made,
either by action against the board or by conducting the investigation and making the
determination.
If the state engineer determines that a drain, lateral drain, or ditch has been opened or
established by a landowner or tenant contrary to title 61 or any rules adopted by the
board, the state engineer shall take one of three actions:
a. Notify the landowner by certified mail at the landowner's post-office address of
record;
b. Return the matter to the jurisdiction of the board along with the investigation
report; or
c. Forward the drainage complaint and investigation report to the state's attorney.
If the state engineer decides to notify the landowner, the notice must specify the nature
and extent of the noncompliance and state that if the drain, lateral drain, or ditch is not
closed or filled within a reasonable time as determined by the state engineer, but not
less than thirty days, the state engineer shall procure the closing or filling of the drain,
lateral drain, or ditch and assess the cost, against the responsible landowner's
property. The notice from the state engineer must state that the affected landowner
may, within fifteen days of the date the notice is mailed, demand in writing a hearing on
the matter. Upon receipt of the demand, the state engineer shall set a hearing date
within fifteen days from the date the demand is received. 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.
Upon assessment of costs, the state engineer shall certify the assessment to the
county auditor of the county where the noncomplying drain, lateral drain, or ditch is
located. The county auditor shall extend the assessment against the property
assessed. Each assessment must be collected and paid as other property taxes are
collected and paid. Assessments collected must be deposited with the state treasurer
and credited to the contract fund established by section 61-02-64.1. 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 under chapter 28-32. A
hearing by the state engineer as provided for in this section is a prerequisite to an
appeal.
If the state engineer, after completing the investigation required under this section,
decides to return the matter to the board, a complete copy of the investigation report
must be forwarded to the board and it must include the nature and extent of the
noncompliance. Upon having the matter returned to its jurisdiction, the board shall
carry out the state engineer's decision under the terms of this section.
If the state engineer, after completing the investigation required under this section,
decides to forward the drainage complaint to the state's attorney, a complete copy of
the investigation report must also be forwarded, which must include the nature and
extent of the noncompliance. The state's attorney shall prosecute the complaint under
the statutory responsibilities prescribed in chapter 11-16.
In addition to the penalty imposed by the court on conviction under this statute, the
court shall order the drain, lateral drain, or ditch closed or filled within a reasonable
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time period as the court determines, but not less than thirty days. If the drain, lateral
drain, or ditch is not closed or filled within the time prescribed by the court, the court
shall procure the closing or filling of the drain, lateral drain, or ditch, and assess the
cost against the property of the landowner responsible, in the same manner as other
assessments under chapter 61-16.1 are levied. If, in the opinion of the court, 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.
61-32-09. Wetlands replacement fund - Continuing appropriation.
Repealed by S.L. 1995, ch. 599, § 3.
61-32-10. Exemption.
The wetland replacement requirements of sections 61-32-01 through 61-32-11 do not apply
to surface coal mining operations until reclamation of the wetland area begins pursuant to
chapter 38-14.1.
61-32-11. Application of prior law.
Repealed by S.L. 1995, ch. 599, § 3.
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