2016 North Dakota Century Code Title 61 Waters Chapter 61-04 Appropriation of Water
Download as PDF
CHAPTER 61-04
APPROPRIATION OF WATER
61-04-01. Petitions, reports, surveys, and other documents filed in office of
commission.
Any petitions, applications, surveys, reports, orders, or other documents provided for in this
chapter shall be filed in the office of the commission in the city of Bismarck, where they shall be
kept on file under the control of the state engineer.
61-04-01.1. Definitions.
In this chapter, unless the context or subject matter otherwise requires:
1. "Adjudicative proceeding" as defined under chapter 28-32 provides for an appeal of a
recommended decision prepared by the state engineer for a water permit application.
2. "Beneficial use" means a use of water for a purpose consistent with the best interests
of the people of the state.
3. "Commission" means the state water commission.
4. "Domestic use" means the use of water by at least one family unit or household
obtaining water from the same system for personal needs and for household
purposes, including heating, drinking, washing, sanitary, and culinary uses; irrigation of
land not exceeding five acres [2.0 hectares] in area for each family unit or household
for noncommercial gardens, orchards, lawns, trees, or shrubbery; and for household
pets and domestic animals kept for household sustenance and not for sale or
commercial use.
5. "Fish, wildlife, and recreation" means the use of water for the purposes of propagating
and sustaining fish and wildlife resources and for the development and maintenance of
water areas necessary for outdoor recreation activities.
6. "Industrial use" means the use of water for the furtherance of a commercial enterprise
wherever located, including manufacturing, mining, or processing.
7. "Informational hearing" means an administrative proceeding, not an adjudicative
proceeding, which provides all interested persons an opportunity to present oral or
written comments on a water permit application.
8. "Irrigation use" means the use of water for application to more than five acres
[2.0 hectares] of land to stimulate the growth of agricultural crops, including gardens,
orchards, lawns, trees, or shrubbery, or the maintenance of recreation areas such as
athletic fields, golf courses, parks, and similar types of areas, except when the water
for the facility is provided by a municipal water system.
9. "Livestock use" means the use of water for drinking purposes by herds, flocks, or
bands of animals kept for commercial purposes.
10. "Municipal or public use" means the use of water by the state through its political
subdivisions, institutions, facilities, and properties, and the inhabitants thereof, or by
unincorporated communities, subdivision developments, rural water systems, and
other entities, whether supplied by the government or by a privately owned public
utility or other agency or entity, for primarily domestic purposes, as defined herein.
11. "Person" includes political subdivisions, corporations, limited liability companies,
partnerships, associations, the United States and its departments or agencies, the
state of North Dakota and its departments or agencies, and any other legal entity.
12. "Rural water system" means a water supply system designed to serve regional needs.
13. "Water of the state" or "waters of the state" means those waters identified in section
61-01-01.
61-04-01.2. Right to use water - Basis.
A right to appropriate water can be acquired for beneficial use only as provided in this
chapter. Beneficial use shall be the basis, the measure, and the limit of the right to the use of
water.
Page No. 1
61-04-02. Permit for beneficial use of water required.
Any person, before commencing any construction for the purpose of appropriating waters of
the state or before taking waters of the state from any constructed works, shall first secure a
water permit from the state engineer unless such construction or taking from such constructed
works is for domestic or livestock purposes or for fish, wildlife, and other recreational uses or
unless otherwise provided by law. However, immediately upon completing any constructed
works for domestic or livestock purposes or for fish, wildlife, and other recreational uses, the
water user shall notify the state engineer of the location and acre-feet [1233.48 cubic meters]
capacity of such constructed works, dams, or dugouts. Regardless of proposed use, however,
all water users shall secure a water permit prior to constructing an impoundment capable of
retaining more than twelve and one-half acre-feet [15418.52 cubic meters] of water or the
construction of a well from which more than twelve and one-half acre-feet [15418.52 cubic
meters] of water per year will be appropriated. If a permit is not required of a landowner or the
landowner's lessee to appropriate less than twelve and one-half acre-feet [15418.52 cubic
meters] of water from any source for domestic or livestock purposes or for fish, wildlife, and
other recreational uses, those appropriators may apply for water permits in order to clearly
establish a priority date and the state engineer may waive any fee or hearing for such
applications. An applicant for a water permit to irrigate need not be the owner of the land to be
irrigated.
61-04-02.1. Emergency or temporary authorization.
The state engineer may authorize emergency or temporary use of water for periods not to
exceed twelve months if the state engineer determines such use will not be to the detriment of
existing rights. The state engineer shall establish by rule a separate procedure for the
processing of applications for emergency or temporary use. No prescriptive or other rights to the
use of water shall be acquired by use of water as authorized herein.
61-04-03. Application for water permit - Contents - Information to accompany.
The application for a permit to make beneficial use of any waters of the state shall be in the
form required by the rules established by the state engineer. Such rules shall prescribe the form
and contents of, and the procedure for filing, the application. The application, along with all other
information filed with it, shall be retained in the office of the commission after approval or
disapproval of the application. The state engineer may require additional information not
provided for in the general rules if the state engineer deems it to be necessary.
61-04-03.1. Limitation on amount of water.
An individual may not apply for a permit or permits for irrigation which, if approved, would
enable the individual, at any one time, to hold a conditional permit or permits for more than
seven hundred twenty acre-feet [888106.75 cubic meters] of water which has not been applied
to beneficial use. Applications submitted in violation of this section shall not be assigned a
priority date and shall be returned to the applicant by the state engineer. This section shall not
apply to applications for water permits from the Missouri River or to applications submitted by
irrigation districts organized pursuant to this title. For the purposes of this section, an individual
means any person, including the person's spouse, and dependents thereof within the meaning
of the Internal Revenue Code [26 U.S.C. 152].
61-04-04. Filing and correction of application.
The date of the receipt of the application provided for in section 61-04-03 in the commission
office shall be noted thereon. If the application is defective as to form, incomplete, or otherwise
unsatisfactory, it shall be returned with a statement of the corrections, amendments, or changes
required, within thirty days after its receipt, and sixty days shall be allowed for the refiling
thereof. If the application is corrected as required and is refiled within such time, it, upon being
accepted, shall take priority as of the date of its original filing. Any corrected application filed
after the time allowed shall be treated in all respects as an original application received on the
date of its refiling. The application may be amended by the applicant at any time prior to the
Page No. 2
commencement of administrative action by the state engineer as provided in sections 61-04-05
through 61-04-07.
61-04-04.1. Application fees.
The following fees must accompany an application and must be paid by the state engineer
into the water use fund of the state treasury:
1. For municipal or public use in municipalities
or other entities of 2,500 population or over
according to the latest federal census
$500
2. For municipal or public use in municipalities
or other entities of less than 2,500 population
according to the latest federal census
$250
3. For irrigation
$200
4. For industrial use of one c.f.s. or less, or
seven hundred twenty-four acre-feet
[893039.52 cubic meters] or less
$250
5. For industrial use in excess of one c.f.s., or
in excess of seven hundred twenty-four
acre-feet [893039.52 cubic meters]
$750
6. For recreation, livestock, or fish and
wildlife
$100
7. For commercial recreation
$200
8. Water permit amendment
$ 50
61-04-04.2. Refund of water permit application fees.
The state engineer may refund a water permit application fee, upon the request of the
applicant, if the application is withdrawn by the applicant, and:
1. The state engineer has not published notice of the application; or
2. The state engineer determines other good and sufficient cause exists to refund the
application fee.
61-04-05. Notice of application - Contents - Proof - Failure to file satisfactory proof.
When an application is filed which complies with this chapter and the rules adopted under
this chapter, the state engineer shall instruct the applicant to:
1. Give notice of the application by certified mail in the form prescribed by rule, to all
record title owners of real estate within a radius of one mile [1.61 kilometers] from the
location of the proposed water appropriation site, except:
a. If the one-mile [1.61-kilometer] radius extends within the geographical boundary
of a city, the notice must be given to the governing body of the city and no further
notice need be given to the record title owners of real estate within the
geographical boundary of the city.
b. If the one-mile [1.61-kilometer] radius includes land within the geographical
boundary of a rural subdivision where the lots are of ten acres [4.04 hectares] or
less, the notice must be given to the governing body of the township or other
governing authority for the rural subdivision and no further notice need be given
to the record title owners of real estate within the geographical boundary of the
rural subdivision.
c. If the one-mile [1.61-kilometer] radius includes a single tract of rural land which is
owned by more than ten individuals, the notice must be given to the governing
body of the township or other governing authority for that tract of land and no
further notice need be given to the record title owners of that tract.
2. Give notice of the application by certified mail in the form prescribed by rule to all
persons holding water permits for the appropriation of water from appropriation sites
located within a radius of one mile [1.61 kilometers] from the location of the proposed
Page No. 3
3.
4.
5.
6.
water appropriation site. The state engineer shall provide a list of all persons who must
be notified under this subsection to the applicant.
Give notice of the application by certified mail in the form prescribed by rule to all
municipal or public use water facilities within a twelve-mile [19.32-kilometer] radius of
the proposed water appropriation site. The state engineer shall provide a list of all
municipal or public use water facilities that must be notified under this subsection to
the applicant.
Provide the state engineer with an affidavit of notice by certified mail within sixty days
from the date of the engineer's instructions to provide notice. If the applicant fails to file
satisfactory proof of notice by certified mail within sixty days and in compliance with
the applicable rules, the state engineer shall treat the application as an original
application filed on the date of receipt of the affidavit of notice by certified mail in
proper form. Upon receipt of a proper affidavit of notice by certified mail, the state
engineer shall publish notice of the application, in a form prescribed by rule, in the
official newspaper of the county in which the proposed appropriation site is located,
once a week for two consecutive weeks.
The notice must give all essential facts as to the proposed appropriation, including the
places of appropriation and of use, amount of water, the use, the name and address of
the applicant, and the date by which written comments and requests for an
informational hearing regarding the proposed appropriation must be filed with the state
engineer. The notice must also state that anyone who files written comments with the
state engineer will be mailed a copy of the state engineer's recommended decision on
the application.
The applicant shall pay all costs of the publication of notice.
61-04-05.1. Comments - Hearing.
1. Comments regarding a proposed appropriation must be in writing and filed by the date
specified by the state engineer under subsection 5 of section 61-04-05. The comments
must state the name and address of the person filing the comments.
2. A person filing written comments may also request an informational hearing on the
application by the date specified by the state engineer under subsection 5 of section
61-04-05. If a request for an informational hearing is made and if the state engineer
determines an informational hearing is necessary to obtain additional information to
evaluate the application or to receive public input, the state engineer shall designate a
time and place for the informational hearing and serve a copy of the notice of hearing
upon the applicant and any person who filed written comments. Service must be made
in the manner allowed for service under the North Dakota Rules of Civil Procedure at
least twenty days before the hearing.
3. If two or more municipal or public use water facilities request the informational hearing
to be held locally, the state engineer shall hold the hearing in the county seat of the
county in which the proposed water appropriation site is located.
4. The state engineer shall consider all written comments received and testimony
presented at an informational hearing, if held, and shall recommend in writing approval
or disapproval of the application or that the application be held in abeyance. A copy of
the recommended decision must be mailed to the applicant and any person who filed
written comments.
5. Within thirty days of service of the recommended decision, the applicant and any
person who would be aggrieved by the decision and who filed written comments by the
date specified under subsection 5 of section 61-04-05 may file additional written
comments with the state engineer or request an adjudicative proceeding on the
application, or both. A request for an adjudicative proceeding must be made in writing
and must state with particularity how the person would be aggrieved by the decision
and the issues and facts to be presented at the proceeding. If a request for an
adjudicative proceeding is not made, the state engineer shall consider the additional
comments, if any are submitted, and issue a final decision. If a request for an
adjudicative proceeding is made, and if the state engineer determines an adjudicative
Page No. 4
proceeding is necessary, the state engineer shall designate a time and place for the
adjudicative proceeding and serve a copy of the notice of adjudicative proceeding
upon the applicant and any person who filed written comments. Service must be made
in the manner allowed for service under the North Dakota Rules of Civil Procedure at
least twenty days before the hearing.
61-04-06. Criteria for issuance of permit.
The state engineer shall issue a permit if the state engineer finds all of the following:
1. The rights of a prior appropriator will not be unduly affected.
2. The proposed means of diversion or construction are adequate.
3. The proposed use of water is beneficial.
4. The proposed appropriation is in the public interest. In determining the public interest,
the state engineer shall consider all of the following:
a. The benefit to the applicant resulting from the proposed appropriation.
b. The effect of the economic activity resulting from the proposed appropriation.
c. The effect on fish and game resources and public recreational opportunities.
d. The effect of loss of alternate uses of water that might be made within a
reasonable time if not precluded or hindered by the proposed appropriation.
e. Harm to other persons resulting from the proposed appropriation.
f. The intent and ability of the applicant to complete the appropriation.
Subsection 1 of section 28-32-38 does not apply to water permit application proceedings unless
a request for a hearing is made. If an application is approved, the state engineer shall issue a
conditional water permit allowing the applicant to appropriate water. Provided, however, the
commission may, by resolution, reserve unto itself final approval authority over any specific
water permit in excess of five thousand acre-feet [6167409.19 cubic meters]. The state engineer
may cause a certified transcript to be prepared for any hearing conducted pursuant to this
section. The costs for the original and up to nine copies of the transcript must be paid by the
applicant.
61-04-06.1. Preference in granting permits.
When there are competing applications for water from the same source, and the source is
insufficient to supply all applicants, the state engineer shall adhere to the following order of
priority:
1. Domestic use.
2. Municipal use.
3. Livestock use.
4. Irrigation use.
5. Industrial use.
6. Fish, wildlife, and other outdoor recreational uses.
61-04-06.2. Terms of permit.
The state engineer may issue a conditional permit for less than the amount of water
requested. Except for water permits for incorporated municipalities or rural water systems, the
state engineer may not issue a permit for more water than can be beneficially used for the
purposes stated in the application. Water permits for incorporated municipalities or rural water
systems may contain water in excess of present needs based upon what may reasonably be
necessary for the future water requirements of the municipality or the rural water system. The
state engineer may require modification of the plans and specifications for the appropriation.
The state engineer may issue a permit subject to fees for water use and conditions the state
engineer considers necessary to protect the rights of others and the public interest. Conditions
must be related to matters within the state engineer's jurisdiction. All conditions attached to any
permit issued before July 1, 1975, are binding upon the permittee.
Page No. 5
61-04-06.3. Priority.
Priority in time shall give the superior water right. Priority of a water right acquired under this
chapter dates from the filing of an application with the state engineer, except for water applied to
domestic, livestock, or fish, wildlife, and other recreational uses in which case the priority date
shall relate back to the date when the quantity of water in question was first appropriated,
unless otherwise provided by law.
Priority of appropriation does not include the right to prevent changes in the condition of
water occurrence, such as the increase or decrease of streamflow, or the lowering of a water
table, artesian pressure, or water level, by later appropriators, if the prior appropriator can
reasonably acquire the prior appropriator's water under the changed conditions.
61-04-07. Rejection of applications - Appeal to district court.
If the state engineer determines that an application does not meet the criteria prescribed in
section 61-04-06, the state engineer shall reject the application. The state engineer shall decline
to order the publication of notice of any application which does not comply with the requirements
of the law and the rules thereunder. Any applicant, within sixty days from the date of refusal to
approve an application, may appeal to the district court of the county in which the proposed
place of diversion or storage is situated, from any decision of the state engineer which denies a
substantial right. In the absence of such appeal, the decision of the state engineer shall be final.
61-04-07.1. Approval of applications with conditions.
Repealed by S.L. 1977, ch. 569, § 27.
61-04-08. Prosecution of work - State engineer may approve another application upon
failure of original applicant to complete - Exception.
Repealed by S.L. 1965, ch. 447, § 24.
61-04-09. Application to beneficial use - Inspection - Perfected water permit.
After the permit's beneficial use date, or upon notice from the permitholder that water has
been applied to a beneficial use, the state engineer shall notify the conditional water
permitholder and inspect the works. The inspection must determine the safety, efficiency, and
actual capacity of the works. If the works are not properly and safely constructed, the state
engineer may require the necessary changes to be made within a reasonable time. Failure to
make the changes within the time prescribed by the state engineer shall cause postponement of
the permit's priority date to the date the changes are made to the satisfaction of the state
engineer. Any intervening application submitted before the date the changes are made will have
the benefit of the postponement of priority. When the works are properly and safely constructed
and inspected, the state engineer shall issue the perfected water permit, setting forth the actual
capacity of the works and the limitations or conditions upon the water permit as stated in the
conditional water permit authorized by section 61-04-06.2. All conditions attached to any permit
issued before July 1, 1975, are binding upon the permittee.
61-04-10. Certificate of construction issued when works found in satisfactory
condition - Contents.
Repealed by S.L. 1965, ch. 447, § 24.
61-04-11. Inspection of works.
If the state engineer, in the course of the state engineer's duties, shall find that any works
used for the storage, diversion, or carriage of water are unsafe and a menace to life or property,
the state engineer at once shall notify the owner or the owner's agent, specifying the changes
necessary and allowing a reasonable time for putting the works in safe condition. Upon the
request of any party, accompanied by the estimated cost of inspection, the state engineer shall
cause any alleged unsafe works to be inspected. If they shall be found unsafe by the state
engineer, the money deposited by such party shall be refunded, and the fees for inspection shall
be paid by the owner of such works. If such fees are not paid by the owner of such works within
Page No. 6
thirty days after the decision of the state engineer, they shall be a lien against any property of
such owner and shall be recovered by a suit instituted by the state's attorney of the county at
the request of the state engineer. The state engineer, when in the state engineer's opinion it is
necessary, may inspect any works under construction for the storage, diversion, or carriage of
water and may require any changes necessary to secure their safety. The fees for such
inspection shall be a lien on any property of the owner and shall be subject to collection as
provided in this chapter but neither the United States nor the state of North Dakota nor any
agency thereof shall be required to pay such fees.
61-04-12. Use of unsafe works - Penalty.
Any person using works for the storage, diversion, or carriage of water, at any time after an
inspection thereof by the state engineer and receipt of notice from the state engineer that the
same are unsafe for the purpose for which they are used, and until the receipt of notice from the
state engineer that in the state engineer's opinion they have been made safe, shall be guilty of a
class A misdemeanor.
61-04-13. Application of water to beneficial use - Inspection.
Repealed by S.L. 1965, ch. 447, § 24.
61-04-14. Extending time for application to beneficial use.
The state engineer may extend the time for the application of water to the beneficial use
cited in the conditional water permit for good cause shown. When such time has expired, the
state engineer may renew and extend the same upon application; provided, however, a
conditional water permit, or any portion thereof, shall be considered forfeited, abandoned, and
void if no request for renewal is received by the state engineer within sixty days after the date
the permittee is informed by certified mail that the period for applying water to the beneficial use
cited in the conditional permit has expired. If a request to extend the time for application to
beneficial use for any conditional permit, or portion thereof, is denied, such conditional permit, or
portion thereof, shall be considered forfeited, abandoned, and void. Sections 61-04-23 through
61-04-25 shall not apply to this section.
61-04-15. Assignment or transfer of conditional or perfected water permit.
Any conditional or perfected water permit may be assigned only upon approval by the state
engineer. Any conditional or perfected water permit may also be transferred, with the approval of
the state engineer, to any parcel of land owned or leased by the holder of such water permit.
Upon reasonable proof that such assignment or transfer can be made without detriment to
existing rights, the state engineer shall cause the water permit involved to be assigned or
simultaneously severed and transferred from such land without losing priority of any right
previously established. The decision of the state engineer shall be final unless some party
interested in the same source of water supply shall, within sixty days, bring appropriate action in
the district court of the county in which the land is located appealing such decision. Applications
for assignment and transfer shall be in the form required by regulation. The transfer of title to
land in any manner whatsoever shall carry with it all rights to the use of water for irrigation of
such land, except that any conditional or perfected water permit for irrigation purposes must be
assigned in accordance with this section.
61-04-15.1. Change in point of diversion or use.
1. A permitholder may change the point of diversion or purpose of use without affecting
the priority date if approved by the state engineer.
2. The state engineer may approve the proposed change if the state engineer determines
that the proposed change will not adversely affect the rights of other appropriators.
Applications for a change in the point of diversion or any purpose of use shall be
processed and evaluated in the same manner as an application for a water permit.
3. A change in the purpose of use may be authorized only for a superior use as
determined by the order of priorities contained in section 61-04-06.1.
Page No. 7
61-04-16. Referee or referees appointed in water suits - Duties.
Repealed by S.L. 1977, ch. 569, § 27.
61-04-17. Surplus water to be delivered to persons entitled to beneficial use - Charges
- Compelling delivery.
The owner or owners of any works for the storage, diversion, or carriage of water, which
contain water in excess of their needs for beneficial use, shall be required to deliver such
surplus, at reasonable rates for storage, or carriage, or both, as the case may be, to the parties
entitled to the use of the water for beneficial purposes. In case of the refusal of such owner or
owners to deliver any such surplus water at reasonable rates as required by the state engineer,
they may be compelled to do so by the district court of the county in which the surplus water is
to be used.
61-04-18. Appropriation of water from minor stream for agricultural use.
Repealed by S.L. 1963, ch. 419, § 7.
61-04-19. Filing of location certificate - Contents.
Repealed by S.L. 1963, ch. 419, § 7.
61-04-20. Approval of state engineer - Rights of claimant - Procedure.
Repealed by S.L. 1963, ch. 419, § 7.
61-04-21. Amount of water allowed.
Repealed by S.L. 1963, ch. 419, § 7.
61-04-22. Prescriptive water right.
A person who used or attempted to appropriate water from any source for beneficial use
over a period of twenty years prior to July 1, 1963, is deemed to have acquired a right to the use
of the water without having filed or prosecuted an application to acquire a right to the beneficial
use of the waters if the user shall have, by December 31, 2001, filed with the state engineer an
application for a water permit. If the state engineer finds that the application substantiates the
claim and it is approved, it is a perfected water permit with a priority date relating back to the
date when the first step was taken to appropriate the water in the quantity stated in the
application. The first step may have consisted of survey work, drilling, ditching, damming, diking,
or other actual preparation for the appropriation of water provided that the first step was
followed by due diligence resulting in the appropriation of water. If the prescriptive user fails to
file an application for a water permit with the state engineer by December 31, 2001, the
prescriptive water right must be declared abandoned and forfeited. A prescriptive water permit
acquired under this section is subject to forfeiture for nonuse as prescribed by sections
61-04-23 through 61-04-25. The state engineer shall publish in each official county newspaper
published in this state notice of the deadline for filing for an appropriation permit under this
section.
61-04-23. Forfeiture of water rights - Inspection of works.
Any appropriation of water must be for a beneficial use, and when the appropriator fails to
apply it to the beneficial use cited in the permit or ceases to use it for the beneficial use cited in
the permit for three successive years, unless the failure or cessation of use has been due to the
unavailability of water, a justifiable inability to complete the works, or other good and sufficient
cause, the state engineer may declare the water permit or right forfeited. For purposes of this
chapter, an incorporated municipality or rural water system has good and sufficient cause
excusing the failure to use a water permit, if the water permit may reasonably be necessary for
the future water requirements of the municipality or the rural water system. The state engineer
shall, as often as necessary, examine the condition of all works constructed or partially
constructed within the state and compile information concerning the condition of every water
permit or right and all ditches and other works constructed or partially constructed thereunder.
Page No. 8
61-04-24. Forfeiture of water rights - Notice - Contents.
If it appears that any water appropriation or portion thereof has not been used for a
beneficial use, or having been so used at one time has ceased to be used for that purpose for
more than three successive years, unless the failure or cessation of use is due to the
unavailability of water, a justifiable inability to complete the works, or other good and sufficient
cause, the state engineer shall set a place and time for a hearing. For purposes of this chapter,
an incorporated municipality or a rural water system has good and sufficient cause excusing the
failure to use a water permit, if the water permit may reasonably be necessary for the future
water requirements of the municipality or the rural water system. Any holder of a water permit
using water from a common source of supply, any applicant therefor, or any interested party
may request the state engineer to conduct a hearing, the purpose of which is the cancellation of
any unused water rights to the common source of supply. Any decision of the state engineer in
denying a request for a hearing may be appealed in the manner prescribed by section 61-04-07.
Prior to the hearings, the state engineer shall serve notice upon the permitholder and upon the
owners of land benefited by the appropriation or works, except where the lands benefited are
within the geographical boundaries of a city, in which case notice must be given to the
governing body of the city, to show cause by such time and at such place why the water
appropriation or a portion thereof should not be declared forfeited and canceled.
In addition to the time and place of hearing, the notice must contain:
1. A description of the water appropriation.
2. The permit number upon the records of the commission.
3. The date of priority.
4. The point of diversion.
5. A description of the lands benefited by the appropriation as indicated on the
application for a water permit on file in the office of the commission.
6. Notice that the permitholder, the owners of land benefited by the appropriation or
works, and other interested parties whose right to use water may be affected by a
cancellation of the appropriation are to show cause why the appropriation, or a portion
thereof, should not be canceled.
The notice must be served personally or sent by registered or certified mail at least thirty days
before the date of hearing to the permitholder and to the owners of land benefited by the
appropriation as indicated on the application for a water permit on file in the office of the
commission, or to persons having an interest in works as they appear from the records of the
county treasurer or the recorder. In addition, the notice must be published in a newspaper of
general circulation in the county in which the point of diversion is located once each week for
two consecutive weeks prior to the date of hearing.
61-04-25. Forfeiture of water rights - Hearing - Appeal.
At the hearing the verified report of the state engineer or engineers of the state water
commission is prima facie evidence for the forfeiture and cancellation of the water permit or
portion thereof. If no one appears at the hearing, the water permit or portion thereof must be
declared forfeited and canceled. If interested parties appear and contest the cancellation, the
state engineer shall hear the evidence and if it appears that the water has not been put to a
beneficial use or, having been so used at one time, has ceased to be used for such purpose for
more than three successive years, unless the failure or cessation of use is due to the
unavailability of water, a justifiable inability to complete the works, or other good and sufficient
cause, the same, or a portion thereof, must be declared forfeited and canceled. For purposes of
this chapter, an incorporated municipality or a rural water system has good and sufficient cause
excusing the failure to use a water permit, if the water permit may reasonably be necessary for
the future water requirements of the municipality or the rural water system. An appeal may be
taken from the decision of the state engineer in accordance with chapter 28-32.
61-04-26. Recorder to record water permit or order affecting water right.
A water permit may be recorded as any other instrument affecting the title to real property
without acknowledgment or further proof. A copy of any order declaring any water right, or
portion thereof, forfeited, canceled, or abandoned shall be filed by the state engineer in the
Page No. 9
office of the recorder in the county or counties where the affected land is located, and it shall be
recorded as any other instrument affecting the title to real property without acknowledgment or
further proof. Any document filed under this section shall be listed in the index of the property
affected as provided in section 11-18-07.
61-04-27. Information filed with state engineer - Installation of measuring devices.
On or before the thirty-first day of March of each year all persons holding a water permit
shall file with the state engineer, on forms supplied by the state engineer, topographic, mapping,
foundation test borings, design, water use, and such other information as the state engineer
shall require. The state engineer may also require any such persons to install measuring
devices, which must conform to the state engineer's specifications, at all points specified by the
state engineer.
61-04-28. Correction of application or water right by state engineer.
Upon proof satisfactory to the state engineer that an application for a water permit or any
water permit contains an error relative to the point of diversion, the legal description of the land
to which the water is to be applied, or the quantity of water, the state engineer may, by written
notice to the holder of the affected water permit, correct the error without publication of notice.
61-04-29. Enforcement.
The state engineer has full power and authority to institute, maintain, and prosecute to
determination in an administrative proceeding or any of the courts of this state, or in any of the
federal courts, any and all actions, suits, and special proceedings that may be necessary to
enjoin unauthorized use of water, to enforce an order of the state engineer or the state water
commission, or to otherwise administer the provisions of this chapter. Notwithstanding any other
provision of law, the state engineer may issue administrative orders requiring the immediate
cessation of water use when the state engineer has a reasonable belief that such use is
unauthorized or continued use will damage the rights of prior appropriators.
61-04-30. Penalty.
A person who constructs works for an appropriation, or diverts, impounds, withdraws, or
uses a significant amount of water from any source without a permit specifically authorizing
such action, except as otherwise provided in section 61-04-02; who violates an order of the
state engineer; who fails or refuses to install meters, gauges, or other measuring devices or to
control works; who violates an order establishing corrective controls for an area or for a source
of water; who violates the terms of the permit; or who knowingly makes a false or misleading
statement in a declaration of existing rights is guilty of a class A misdemeanor. As used in this
section, "significant amount of water" means any amount of water in excess of that allowed in a
valid water permit, or any amount of water in excess of the needs for domestic and livestock
purposes where no permit has been issued. The state engineer shall inform the tax
commissioner of violations of industrial use permits.
61-04-31. Reservation of waters - Public hearing - Notice.
1. Whenever it appears necessary to the state engineer, or when directed by the
commission, the state engineer may by regulation reserve and set aside waters for
beneficial use in the future.
a. Before the adoption of a regulation under this section, the state engineer shall
conduct a public hearing in each county where waters relating to the regulation
are located. At least seven days before the date set for the public hearing, a
notice must be published in the official county newspapers within each of the
counties.
b. Regulations adopted hereunder are subject to chapter 28-32.
2. When sufficient information or data is lacking to allow for sound decisionmaking on a
water permit application, the state engineer may withdraw various waters of the state
Page No. 10
from additional appropriations until sufficient data or information is available. Water
permit applications pending from these sources will be placed in a deferred status.
61-04-32. Damages for illegal diminishment of water supply.
If a court of competent jurisdiction determines that a water supply has been illegally
diminished in quantity or quality and that a valid water right to use that supply has been
damaged as a result of the diminishment, damages awarded to the owner of the water right
shall be an amount to cover the cost of making such repairs, alterations, or construction that will
ensure the delivery to the surface owner of that quality and quantity of water available to the
surface owner prior to the diminishment.
Page No. 11
Disclaimer: These codes may not be the most recent version. North Dakota may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
