CHAPTER 61-01 General Provisions

61-01-01. Waters of the state — Public waters.

All waters within the limits of the state from the following sources of water supply belong to the public and are subject to appropriation for beneficial use and the right to the use of these waters for such use must be acquired pursuant to chapter 61-04:

  1. Waters on the surface of the earth, excluding diffused surface waters but including surface waters whether flowing in well-defined channels or flowing through lakes, ponds, or marshes which constitute integral parts of a stream system, or waters in lakes;
  2. Waters under the surface of the earth whether such waters flow in defined subterranean channels or are diffused percolating underground water;
  3. All residual waters resulting from beneficial use, and all waters artificially drained; and
  4. All waters, excluding privately owned waters, in areas determined by the department of water resources to be noncontributing drainage areas. A noncontributing drainage area is any area that does not contribute natural flowing surface water to a natural stream or watercourse at an average frequency more often than once in three years over the latest thirty-year period.

Source:

S.L. 1905, ch. 34, § 1; R.C. 1905, § 7604; C.L. 1913, § 8235; S.L. 1939, ch. 255, § 1; R.C. 1943, § 61-0101; S.L. 1955, ch. 345, § 1; 1957, ch. 372, § 1; 1957 Supp., § 61-0101; S.L. 1989, ch. 69, § 66; 2021, ch. 488, § 26, eff August 1, 2021.

Notes to Decisions

Constitutionality.

There is no absolute ownership of groundwater underlying land if water has not actually been diverted and applied to beneficial use, and thus landowner does not have vested right to unused groundwater underlying his land, but only usufructuary right and its existence is contingent upon application of underlying water to beneficial use; declaration that all waters in the state belong to public and may be appropriated through proper administrative procedure is valid exercise of the state’s police power, insofar as it does not expropriate vested rights; where landowner had no vested right, enactment of this provision did not violate Article I, § 16 of state constitution or fourteenth amendment of the Federal Constitution.Baeth v. Hoisveen, 157 N.W.2d 728, 1968 N.D. LEXIS 108 (N.D. 1968).

Homestead.

Where homestead entry was filed in 1879 upon land in Dakota and patent was issued subsequently, riparian right in stream which flowed over land became vested, and waters of such stream were no longer subject to appropriation. Sturr v. Beck, 133 U.S. 541, 10 S. Ct. 350, 33 L. Ed. 761, 1890 U.S. LEXIS 1931 (U.S. 1890).

Nature of Water Rights.

One landowner may not take underlying percolating water from a common source and transport it to lands not overlying the common supply if such taking is injurious to other landowners overlying the common supply who have applied the water to beneficial use. Volkmann v. Crosby, 120 N.W.2d 18, 1963 N.D. LEXIS 70 (N.D. 1963).

Public Trust Doctrine.

This section expresses the public trust doctrine, i.e., that the state holds title to waters and the land thereunder in trust for the people of the state, and cannot abdicate this trust to a private entity. United Plainsmen Ass'n v. North Dakota State Water Conservation Comm'n, 247 N.W.2d 457, 1976 N.D. LEXIS 157 (N.D. 1976).

Watercourse Bed.

The North Dakota Constitution, Article XI, § 3, “has application only to the waters of flowing streams and natural water courses and not to lands underlying nonnavigable streams and water courses.” Thus, unless otherwise conveyed, the watercourse bed remains the property of the landowner. United States v. Vesterso, 828 F.2d 1234, 1987 U.S. App. LEXIS 11509 (8th Cir. N.D. 1987).

Wildlife Refuge Act.

The terms of the Wildlife Refuge Act are to be given their full effect, and any conflict with state law should be dealt with on a case-by-case basis. United States v. Vesterso, 828 F.2d 1234, 1987 U.S. App. LEXIS 11509 (8th Cir. N.D. 1987).

DECISIONS UNDER PRIOR LAW

Surface Water.

Former statute concerning right to use water flowing in definite stream did not apply to surface water that had not formed definite stream. Henderson v. Hines, 48 N.D. 152, 183 N.W. 531, 1921 N.D. LEXIS 21 (N.D. 1921).

Collateral References.

Rights of boating, bathing, or the like, in inland lakes, 57 A.L.R.2d 569.

Liability of landowner withdrawing ground water from own land for subsidence of adjoining owner’s land, 5 A.L.R.4th 614.

Public rights of recreational boating, fishing, wading, or the like in inland stream the bed of which is privately owned, 6 A.L.R.4th 1030.

Law Reviews.

The Nature and Extent of Rights in Water in North Dakota, Robert E. Beck and John C. Hart, 51 N.D. L. Rev. 249 (1975).

The Rocky Road to Water for Energy, Henry and C. Bruce Loble, 52 N.D. L. Rev. 529 (1976).

The Public Trust Doctrine in North Dakota, 54 N.D. L. Rev. 565 (1978).

North Dakota Waterways: The Public’s Right of Recreation and Questions of Title, 64 N.D. L. Rev. 7 (1988).

Rights to Ground Water in North Dakota: Trends and Opportunities, 71 N.D. L. Rev. 619 (1995).

For Note: The Future of Quantifying Tribal Water Rights in North Dakota, see 84 N.D. L. Rev. 455 (2008).

61-01-01.1. Reciprocal rights of riparian owners. [Repealed]

Repealed by S.L. 1977, ch. 569, § 27.

Note.

For present provisions, see N.D.C.C. § 61-04-06.1.

61-01-01.2. Findings and declaration of policy — Use of ground water for irrigation.

The legislative assembly finds that the use of ground water for irrigation purposes is vitally important to the economic future of this state. The reliance on processing plants for the consistent quality resulting from irrigation is an important factor in preserving this state’s reputation for quality agricultural production. Therefore, it is declared necessary and in the public interest that the state by and through the state water commission strongly discourages the conversion of agricultural water permits to any other use. Further, the legislative assembly declares that any feasible or reasonable alternative supply of water be made available for municipal or domestic use to enable the continued use of ground water for irrigated agriculture and agricultural processing.

Source:

S.L. 2005, ch. 590, § 1.

61-01-02. Right to use water — Basis — Waters appropriated for irrigation purposes — Priority in time. [Repealed]

Repealed by S.L. 1977, ch. 569, § 27.

Note.

For present provisions, see N.D.C.C. §§ 61-04-01.2, 61-04-06.3.

61-01-03. Claims to the use of water initiated prior to and after March 1, 1905.

In all cases of claims to the use of water initiated prior to March 1, 1905, the right relates back to the initiation of the claim, upon the diligent prosecution to completion of the necessary surveys and construction for the application of the water to a beneficial use. Any claim to the use of water initiated after March 1, 1905, relates back to the date of receipt of an application for the claim in the department of water resources or the department’s predecessor, subject to compliance with applicable statutes, rules, and regulations.

Source:

S.L. 1905, ch. 34, § 2; R.C. 1905, § 7605; C.L. 1913, § 8236; R.C. 1943, § 61-0103; 2021, ch. 488, § 27, eff August 1, 2021.

Cross-References.

Prescriptive water right, see N.D.C.C. § 61-04-22.

61-01-04. Eminent domain — Who may exercise.

The United States, or any person, corporation, limited liability company, or association may exercise the right of eminent domain to acquire for a public use any property or rights existing when found necessary for the application of water to beneficial uses, including the right to enlarge existing structures and use the same in common with the former owner. Any canal right of way so acquired shall be located so as to do the least damage to private or public property, consistent with proper and economical engineering construction. Such property or rights may be acquired in the manner provided in chapter 32-15 and the North Dakota Rules of Civil Procedure.

Source:

S.L. 1905, ch. 34, § 3; R.C. 1905, § 7606; C.L. 1913, § 8237; R.C. 1943, § 61-0104; S.L. 1993, ch. 54, § 106.

Notes to Decisions

Private Person.

A private person is authorized to exercise the power of eminent domain under this subsection. Mougey Farms v. Kaspari, 1998 ND 118, 579 N.W.2d 583, 1998 N.D. LEXIS 129 (N.D. 1998).

Public Use Requirement.

The irrigation of farmland under a perfected water permit satisfies the public use requirement of this subsection. Mougey Farms v. Kaspari, 1998 ND 118, 579 N.W.2d 583, 1998 N.D. LEXIS 129 (N.D. 1998).

DECISIONS UNDER PRIOR LAW

Constitutionality.

Section 3, article XI, of the constitution does not prohibit diversion of portion of nonnavigable watercourse, where such diversion is needed for public use, and where substantial integrity of stream is not impaired thereby. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, 1896 N.D. LEXIS 30 (N.D. 1896).

Right of riparian owner to have natural stream flow over his land is such property as may be condemned for railroad purposes. Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, 1896 N.D. LEXIS 30 (N.D. 1896).

Law Reviews.

Rights to Ground Water in North Dakota: Trends and Opportunities, 71 N.D. L. Rev. 619 (1995).

61-01-05. Reclaiming waters turned into natural or artificial watercourse.

Water turned into any natural or artificial watercourse by any party entitled to the use of the water may be reclaimed below and diverted from the watercourse by the party, subject to existing rights, due allowance for losses being made, as determined by the department of water resources.

Source:

S.L. 1905, ch. 34, § 4; R.C. 1905, § 7607; C.L. 1913, § 8238; R.C. 1943, § 61-0105; 2021, ch. 488, § 28, eff August 1, 2021.

61-01-06. Watercourse — Definition.

A watercourse entitled to the protection of the law is constituted if there is a sufficient natural and accustomed flow of water to form and maintain a distinct and a defined channel. The supply of water is not required to be continuous or from a perennial living source. The criteria for constituting a watercourse are satisfied if the flow arises periodically from natural causes and reaches a plainly defined channel of a permanent character. If requested by a water resource board, the department of water resources shall determine whether a watercourse is constituted.

Source:

S.L. 1907, ch. 271, § 1; C.L. 1913, § 5341a; R.C. 1943, § 61-0106; S.L. 1981, ch. 632, § 2; 2021, ch. 488, § 29, eff August 1, 2021.

Notes to Decisions

Drainway.

A runway or draw naturally serving to drain off surface waters of tributary watershed, periodically occasioned by winter’s snow or spring rains, and serving this purpose only temporarily, was not a watercourse. Froemke v. Parker, 41 N.D. 408, 171 N.W. 284, 1919 N.D. LEXIS 89 (N.D. 1919).

A drainway for surface water through run-off channels artificially or naturally provided is not a watercourse. Henderson v. Hines, 48 N.D. 152, 183 N.W. 531, 1921 N.D. LEXIS 21 (N.D. 1921).

Law Reviews.

Waterfowl Production Areas: A State Perspective, 60 N.D. L. Rev. 659 (1984).

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

61-01-07. Obstruction of watercourses — Penalty.

If any person illegally obstructs any ditch, drain, or watercourse, or diverts the water therein from its natural or artificial course, the person is liable to the party suffering injury from the obstruction or diversion for the full amount of the damage done, and, in addition, is guilty of a class B misdemeanor.

Source:

S.L. 1911, ch. 327, § 1; C.L. 1913, § 10228; R.C. 1943, § 61-0107; S.L. 1975, ch. 106, § 635.

Cross-References.

Penalties for offenses, see N.D.C.C. § 12.1-32-01.

Notes to Decisions

Applicability.

N.D.C.C. § 61-01-07 does not create a duty upon a downstream landowner to keep a watercourse free of naturally occurring vegetation. The statute by its terms applies only if the landowner affirmatively and deliberately acts to obstruct or divert the flow of water; the obstruction or diversion of water must be illegal. Buchholz v. Barnes County Water Bd., 2008 ND 158, 755 N.W.2d 472, 2008 N.D. LEXIS 156 (N.D. 2008).

Ditches Along Highway.

It is mandatory duty of board of township supervisors or county commissioners to provide drainage for excess water which may accumulate in ditches along highway to prevent water from overflowing on adjoining land. Lemer v. Koble, 86 N.W.2d 44, 1957 N.D. LEXIS 166 (N.D. 1957).

Diversion of Watercourse.

Where board of drain commissioners, having jurisdiction, diverts flow of watercourse into another channel in order to relieve flooding in district, such diversion of watercourse is not violative of this section. Braaten v. Brenna, 63 N.W.2d 302, 1954 N.D. LEXIS 69 (N.D. 1954).

Highway Grade.

It is unlawful for board of township supervisors or county commissioners to allow highway grade to obstruct or dam any natural watercourse. Lemer v. Koble, 86 N.W.2d 44, 1957 N.D. LEXIS 166 (N.D. 1957).

Naturally Growing Vegetation.

Where a landowner sued his neighbors for failing to maintain a downstream watercourse, the district court did not err by granting summary judgment and dismissing the claim. N.D.C.C. § 61-01-07 did not create a duty upon the neighbors to maintain the downstream watercourse by cleaning out, mowing, or burning naturally growing vegetation. Buchholz v. Barnes County Water Bd., 2008 ND 158, 755 N.W.2d 472, 2008 N.D. LEXIS 156 (N.D. 2008).

Negligence.

In an action against railroad for damages caused by flood waters resulting from construction of an embankment across natural drainway, negligence of defendant in impounding flood waters upon land of upper proprietor was for jury. Henderson v. Hines, 48 N.D. 152, 183 N.W. 531, 1921 N.D. LEXIS 21 (N.D. 1921).

Collateral References.

Modern status of rules governing interference with drainage of surface waters, 93 A.L.R.3d 1193.

Law Reviews.

Waterfowl Production Areas: A State Perspective, 60 N.D. L. Rev. 659 (1984).

Damages from Unlawful Ditching or Unreasonable Discharge of Waters: Comment on Young v. Hamilton, 332 N.W.2d 237, 60 N.D. L. Rev. 741 (1984).

61-01-08. Obstructing navigation — Penalty.

Every person who in any manner obstructs the free navigation of any navigable watercourse within this state is guilty of a misdemeanor.

Source:

Pen. C. 1877, § 469; R.C. 1895, § 7325; R.C. 1899, § 7325; R.C. 1905, § 9066; C.L. 1913, § 9785; R.C. 1943, § 61-0108.

Cross-References.

Penalties for offenses, see N.D.C.C. § 12.1-32-01.

Collateral References.

Propriety of injunctive relief against diversion of water by municipal corporation or public utility, 42 A.L.R.3d 426.

61-01-09. Destruction of dams — Penalty.

Every person who willfully destroys or tampers with any dam or structure erected to retain water or any embankment necessary for the support thereof, or who willfully makes or causes to be made, any aperture in such dam or embankment, with intent to destroy the same, is guilty of a class A misdemeanor.

Source:

Pen. C. 1877, § 711; R.C. 1895, § 7577; R.C. 1899, § 7577; R.C. 1905, § 9336; C.L. 1913, § 10071; R.C. 1943, § 61-0109; S.L. 1975, ch. 106, § 636.

Cross-References.

Penalties for offenses, see N.D.C.C. § 12.1-32-01.

61-01-10. Interference with piers or booms — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

61-01-11. Removing or injuring piles — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

61-01-12. Fouling waters with gas tar or other refuse — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673; 1975, ch. 568, § 1.

61-01-13. Fouling public waters with dead animals or other refuse — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673; 1975, ch. 568, § 1.

61-01-14. Fouling public water — What included. [Repealed]

Repealed by S.L. 1975, ch. 568, § 1.

61-01-15. Riparian owners of land lying adjacent to non-navigable streams. [Repealed]

Repealed by S.L. 1959, ch. 408, § 2.

61-01-16. Erection of guards when cutting ice — Penalty for failure to do so.

All persons cutting ice in or upon any waters within the boundaries of this state, for the purpose of removing such ice for sale or commercial use, shall surround the cuttings and openings made with fences or bushes or other guards sufficient to warn all persons of such cuttings and openings, and shall maintain the same until ice has formed again in such openings to a thickness of at least six inches [15.24 centimeters]. Any person violating this section may be prosecuted under section 12.1-17-03.

Source:

Pen. C. 1877, §§ 466 to 468; R.C. 1895, §§ 7322 to 7324; R.C. 1899, §§ 7322 to 7324; R.C. 1905, §§ 9063 to 9065; C.L. 1913, §§ 9782 to 9784; R.C. 1943, § 61-0116; S.L. 1975, ch. 106, § 637.

61-01-17. Lawful to boom logs in navigable rivers.

Any person, having logs or lumber in any stream navigable for watercraft in this state, may boom such logs or lumber along the shore, and shall secure the boom by means of piles driven in the stream, or by chains, ropes, timber, or traverse poles made fast at points along the shore. There shall be sufficient channel left clear at all times for the free passage of any craft usually navigating such stream.

Source:

Pol. C. 1877, ch. 32, § 1; R.C. 1895, § 1758; R.C. 1899, § 1758; R.C. 1905, § 2212; C.L. 1913, § 3056; R.C. 1943, § 61-0117.

61-01-18. State or municipalities may join water users’ associations — Fee for recording articles by recorder. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

61-01-19. Right of way granted.

A right of way is granted to any duly incorporated water users’ association by and with the consent of the board of university and school lands, to construct over and across any state, school, and institution lands, flumes, ditches, and canals for irrigation purposes and to construct on such lands reservoirs for the storage of water for irrigation purposes.

Source:

S.L. 1905, ch. 193, § 2; R.C. 1905, § 7668; C.L. 1913, § 8303; R.C. 1943, § 61-0119.

61-01-20. When special assessments shall become a lien.

As between vendor and vendee, all special assessments upon real property levied pursuant to the provisions of this title shall become and be a lien upon the real property upon which the same are assessed, from and after the first day of January next after such assessments shall have been certified and returned to the county auditor, to the amount so certified and returned, and no more.

Source:

S.L. 1903, ch. 35, § 1; R.C. 1943, § 61-0120.

Cross-References.

Water resource districts, lien for special assessments, see N.D.C.C. § 61-16.1-30.

61-01-21. Foreclosure of property when only special assessment is delinquent.

If there are no delinquent general taxes against any parcel of real estate and it is foreclosed for special assessments under this title, the notice of foreclosure of tax lien shall contain a statement to the effect that the foreclosure is for special assessments. If the foreclosure is made only for special assessments levied by a municipality or by a taxing district other than the county, the county auditor shall issue a tax deed to the municipality or taxing district which levied such special assessments in the usual course of procedure.

Source:

R.C. 1943, § 61-0121; S.L. 1999, ch. 503, § 41.

Cross-References.

Water resource districts, sale of property for special assessments, see N.D.C.C. § 61-16.1-31.

61-01-22. Permit to drain waters required — Penalty. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-01-23. Investigation or removal of obstructions in channel.

In order to investigate or remove obstructions from the channel or bed of any watercourse and thus prevent ice from gorging therein and to prevent flooding or pollution of such watercourse, the state water commission, any water resource district, any municipality, any board of county commissioners, and any federal agency authorized to construct works for prevention of damage by floods or for abatement of stream pollution, may enter upon lands lying adjacent to such watercourse to investigate or remove, or cause to be removed from the bed, channel, or banks of such watercourse obstructions which prevent or hinder the free flow of water or passage of ice therein. However, such entry upon adjacent lands must be by the most accessible route and the entering agency is responsible to the landowner for any damage.

Source:

S.L. 1959, ch. 408, § 1; 1963, ch. 417, § 2; 1979, ch. 635, § 1; 1989, ch. 745, § 1.

Law Reviews.

Waterfowl Production Areas: A State Perspective, 60 N.D. L. Rev. 659 (1984).

61-01-24. Mouse official name of river.

That body of water which enters the state in or adjacent to that township described as township one hundred sixty-four, north, range eighty-seven, west, in the county of Renville, and proceeds in a generally southerly course through the city of Minot, thence in a generally easterly and northerly course through the cities of Velva and Towner to a point in or adjacent to that township described as township one hundred sixty-four, north, range seventy-nine, west, in the county of Bottineau, at which point it leaves the state of North Dakota, shall be known as the Mouse River. Nothing herein shall be considered as invalidating any national or international agreements designating the river as the Souris.

Source:

S.L. 1961, ch. 376, § 2.

61-01-25. Penalty.

Any person violating any of the provisions of this chapter or any rule or regulation of the department of water resources for which another penalty is not specifically provided is guilty of a class B misdemeanor.

Source:

S.L. 1963, ch. 417, § 3; 1975, ch. 106, § 639; 2021, ch. 488, § 30, eff August 1, 2021.

Cross-References.

Criminal penalty relating to appropriation of water, see N.D.C.C. § 61-04-30.

Penalties for classified offenses, see N.D.C.C. § 12.1-32-01.

61-01-26. Declaration of state water resources policy.

In view of legislative findings and determination of the ever-increasing demand and anticipated future need for water in North Dakota for every beneficial purpose and use, it is hereby declared to be the water resources policy of the state that:

  1. The public health, safety, and general welfare, including without limitation, enhancement of opportunities for social and economic growth and expansion, of all of the people of the state, depend in large measure upon the optimum protection, management, and wise utilization of all of the water and related land resources of the state.
  2. Well-being of all of the people of the state shall be the overriding determinant in considering the best use, or combination of uses, of water and related land resources.
  3. Storage of the maximum water supplies shall be provided wherever and whenever deemed feasible and practicable.
  4. Accruing benefits from these resources can best be achieved for the people of the state through the development, execution, and periodic updating of comprehensive, coordinated, and well-balanced short-term and long-term plans and programs for the conservation and development of such resources by the departments and agencies of the state having responsibilities therefor. The plans and programs for the conservation and development of these resources may include implementation of a program to cost-share with local sponsors of water quality improvement projects.
  5. Adequate implementation of such plans and programs shall be provided by the state through cost-sharing and cooperative participation with the appropriate federal and state departments and agencies and political subdivisions within the limitation of budgetary requirements and administrative capabilities, including consideration of cost-sharing for water quality improvement projects.
  6. Required assurances of state cooperation and for meeting nonfederal repayment obligations of the state in connection with federal-assisted state projects shall be provided by the appropriate state department or agency.
  7. Required assurances of local cooperation and for meeting nonfederal repayment obligations of local interests in connection with federal-assisted local projects may, at the request of political subdivisions or other local interests be provided by the appropriate state department or agency, provided, if for any reason it is deemed necessary by any department or agency of the state to expend state funds in order to fulfill any obligation of a political subdivision or other local interests in connection with the construction, operation, or maintenance of any such project, the state shall have and may enforce a claim against the political subdivision or other local interests for such expenditures.

The provisions of this section may not be construed in any manner to limit, impair, or abrogate the rights, powers, duties, or functions of any department or agency of the state having jurisdiction or responsibilities in the field of water and related land resources conservation, development, or utilization.

Source:

S.L. 1965, ch. 445, §§ 1, 2; 1989, ch. 69, § 67; 2001, ch. 22, § 10.

Notes to Decisions

Declaration of Public Policy.

Subsection 4 of this section was not mandatory, but merely precatory or hortatory; it did not mandate that the development of comprehensive short and long-term programs for the development of state water resources be a condition precedent to issuance of further water permits for coal-related power and energy production facilities. United Plainsmen Ass'n v. North Dakota State Water Conservation Comm'n, 247 N.W.2d 457, 1976 N.D. LEXIS 157 (N.D. 1976).

DECISIONS UNDER PRIOR LAW

Findings and Conclusions.

Whether a particular pronouncement is a finding of fact or a conclusion of law will be determined by the reviewing court, and labels are not conclusive; therefore, the state engineer’s “conclusion” about the project’s impact on water quality was a finding of fact and was amply supported by evidence. In re Application for Permits to Drain Related to Stone Creek Channel Improv.etc., 424 N.W.2d 894, 1988 N.D. LEXIS 117 (N.D. 1988).

Water Quality.

The greater weight of evidence showed that drainage project would not cause a significant decrease in water quality, where the state conservationist made a detailed study of relevant reports, there was evidence that any decrease in water quality would not continue for more than a few years after the beginning of wetland drainage, and the state engineer determined that several features of the drainage project for which permits were sought would protect against undue degradation of water quality during that time. In re Application for Permits to Drain Related to Stone Creek Channel Improv.etc., 424 N.W.2d 894, 1988 N.D. LEXIS 117 (N.D. 1988).

Wetlands.

The state engineer found that there were many wetlands in the assessment area in addition to type IV wetlands, and determined that harm to wildlife and consequently, recreation, would be small; thus, the state engineer sufficiently considered how the project would affect fish and wildlife values, since he was not required to make separate findings regarding each distinct category of wetlands and the resultant effect of their drainage on fish and wildlife values. In re Application for Permits to Drain Related to Stone Creek Channel Improv.etc., 424 N.W.2d 894, 1988 N.D. LEXIS 117 (N.D. 1988).

61-01-26.1. Findings and declaration of policy — Water to eastern North Dakota a critical priority — Water supplementation study — Employment of staff.

The legislative assembly finds that many areas and localities in eastern North Dakota do not enjoy safe drinking water. It is also found that other areas and localities in eastern North Dakota do not have sufficient quantities of water to ensure a dependable, long-term water supply. The legislative assembly further finds that supplementation of the water resources of eastern North Dakota from other available sources, including the Missouri River, may be the only alternative to provide eastern North Dakota with a dependable source of safe, good quality water and an adequate quantity of water.

It is further declared that effective development and utilization of the land and water resources of this state; the opportunity for greater economic security; the protection of health, property, enterprise, and the preservation of the benefits from the land and water resources of this state; and the promotion of the prosperity and general welfare of all of the people of North Dakota involve, necessitate, and require the exercise of the sovereign powers of the state and concern a public purpose. Therefore, in order to accomplish this public purpose, it is declared necessary that a means to supply and distribute water to the people of eastern North Dakota for all beneficial purposes must be developed. In furtherance of this public purpose, the supply and delivery of water to eastern North Dakota is established as a critical priority and the state water commission shall, in cooperation with the Garrison Diversion Conservancy District and the communities and rural water systems in eastern North Dakota, address this critical priority by developing a plan and estimate of the costs for supplementing the water resources of eastern North Dakota with water supplies from other available resources, including the Missouri River.

The state water commission may employ full-time personnel and may employ such other personnel as are necessary for the administration of this section as appropriated funds permit. Notwithstanding section 61-02-64.1, funds disbursed from the contract fund or appropriated for purposes of administering this section may be used for salaries and expenses of persons employed pursuant to this section.

Source:

S.L. 1997, ch. 512, § 1; 2001, ch. 22, § 11.

Law Reviews.

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

61-01-26.2. Statewide water development goals.

The legislative assembly will support to the extent funds are available from the water development trust fund the comprehensive statewide water development program developed pursuant to section 2 of chapter 587 of the 1995 Session Laws and to the state water management plan established under section 61-01-26. In order to implement the state water management plan, the legislative assembly will support the following:

  1. During the 1999-2001 biennium:
    1. Southwest pipeline project: Six million dollars in state funds and eleven million five hundred thousand dollars in federal funds, assuming Perkins County water system payment to the state water commission of four million five hundred thousand dollars.
    2. Northwest area water supply project: Eight million two hundred thousand dollars in local funds and fourteen million eight hundred thousand dollars in federal funds, with an option being considered of the state water commission bonding the local cost-share with local repayment of the total principal, interest, and cost of issuance of the bonds to the state water commission.
    3. Other municipal, rural, and industrial projects: Twenty-five million five hundred thousand dollars in local funds and thirty-nine million nine hundred thousand dollars in federal funds.
    4. Grand Forks flood control: Twenty-five million dollars in local funds, twenty-five million dollars in state funds, and thirty-eight million five hundred thousand dollars in federal funds. The state total cost-share of fifty-two million dollars or so much of the total cost-share that is required may be bonded, requiring a loan repayment estimated at three million nine hundred thousand dollars per year with repayment beginning in 2001.
    5. Devils Lake outlet to the Sheyenne River and to west Stump Lake: Seventeen million five hundred thousand dollars in state funds and thirty-two million five hundred thousand dollars in federal funds. The total state cost-share of seventeen million five hundred thousand dollars includes mitigation costs and will be bonded, requiring a local repayment estimated at one million five hundred thousand dollars per year, with the split between state and local loan repayment to be determined. Before bonds may be issued for a Devils Lake outlet, construction of the outlet must be approved by the state water commission.
  2. During the 2001-03 biennium:
    1. Water to eastern North Dakota: Seventeen million dollars in federal funds appropriated under the Garrison Diversion Unit Reformulation Act of 1986 [Pub. L. 99-294; 100 Stat. 418], Dakota Water Resources Act of 1998, or other federal Act. The local cost has not been determined and will be determined after project configuration is complete.
    2. Southwest pipeline project: Five hundred thousand dollars in local funds, one million seven hundred thousand dollars in state funds, and twelve million five hundred thousand dollars in federal funds.
    3. Northwest area water supply project: Eight million seven hundred thousand dollars in local funds and sixteen million three hundred thousand dollars in federal funds.
    4. Other municipal, rural, and industrial projects: Seventeen million seven hundred thousand dollars in local funds and thirty-two million eight hundred thousand dollars in federal funds.
    5. Grand Forks flood control: Thirty-five million seven hundred thousand dollars in local funds, twenty-seven million dollars in state funds, and sixty-two million nine hundred thousand dollars in federal funds; annual bond payments of three million nine hundred thousand dollars. Components of the Grand Forks flood control project involve water treatment plant improvements. Those federal costs are reflected in subdivision d because of potential cost-sharing using Garrison diversion municipal, rural, and industrial funds. Other projects, such as greenway, are listed under subdivision g.
    6. Devils Lake outlet to Sheyenne River and to west Stump Lake: Bond repayments of one million five hundred thousand dollars per year.
    7. General projects: Thirty-one million seven hundred thousand dollars in local funds, twenty-five million nine hundred thousand dollars in state funds, and thirty-nine million eight hundred thousand dollars in federal funds.
  3. During the 2003-05 biennium:
    1. Water to eastern North Dakota: Six million dollars in federal funds appropriated under the Garrison Diversion Unit Reformulation Act of 1986 [Pub. L. 99-294; 100 Stat. 418], Dakota Water Resources Act of 1998, or other federal Act. The local cost has not been determined and will be determined after project configuration is complete.
    2. Southwest pipeline project: One million dollars in local funds, five million dollars in state funds, and eleven million four hundred thousand dollars in federal funds.
    3. Northwest area water supply project: Eleven million eight hundred thousand dollars in local funds and twenty-one million eight hundred thousand dollars in federal funds.
    4. Other municipal, rural, and industrial projects: Seventeen million seven hundred thousand dollars in local funds and thirty-two million eight hundred thousand dollars in federal funds.
    5. Grand Forks flood control: Annual bond payments of three million nine hundred thousand dollars.
    6. Devils Lake outlet to Sheyenne River and to west Stump Lake: Bond repayments of one million five hundred thousand dollars per year.
    7. General projects: Twenty-four million dollars in local funds, eighteen million four hundred thousand dollars in state funds, and five million five hundred thousand dollars in federal funds.
  4. During the 2005-07 biennium:
    1. Water to eastern North Dakota: Eighty-four million dollars in federal funds appropriated under the Garrison Diversion Unit Reformulation Act of 1986 [Pub. L. 99-294; 100 Stat. 418], Dakota Water Resources Act of 1998, or other federal Act. The local cost has not been determined and will be determined after project configuration is complete.
    2. Southwest pipeline project: One million dollars in local funds, nine million five hundred thousand dollars in state funds, and nineteen million five hundred thousand dollars in federal funds.
    3. Northwest area water supply project: Five million eight hundred thousand dollars in local funds and ten million nine hundred thousand dollars in federal funds.
    4. Other municipal, rural, and industrial projects: Seventeen million seven hundred thousand dollars in local funds and thirty-two million eight hundred thousand dollars in federal funds.
    5. Grand Forks flood control: Annual bond payments of three million nine hundred thousand dollars.
    6. Devils Lake outlet to Sheyenne River and to west Stump Lake: Bond repayments of one million five hundred thousand dollars per year.
    7. General projects: Twenty-four million dollars in local funds, eighteen million four hundred thousand dollars in state funds, and five million five hundred thousand dollars in federal funds.
  5. During the 2007-09 biennium:
    1. Water to eastern North Dakota: Fifty-nine million dollars in federal funds appropriated under the Garrison Diversion Unit Reformulation Act of 1986 [Pub. L. 99-294; 100 Stat. 418], Dakota Water Resources Act of 1998, or other federal Act. The local cost has not been determined and will be determined after project configuration is complete.
    2. Northwest area water supply project: Three million seven hundred thousand dollars in local funds and seven million dollars in federal funds.
    3. Other municipal, rural, and industrial projects: Seventeen million seven hundred thousand dollars in local funds and thirty-two million eight hundred thousand dollars in federal funds.
    4. Grand Forks flood control: Annual bond repayments of three million nine hundred thousand dollars.
    5. Devils Lake outlet to Sheyenne River and to west Stump Lake: Bond repayments of one million five hundred thousand dollars per year.
    6. General projects: Twenty-four million dollars in local funds, eighteen million four hundred thousand dollars in state funds, and five million five hundred thousand dollars in federal funds.
  6. During the 2009-11 biennium:
    1. Water to eastern North Dakota: Two million dollars in federal funds appropriated under the Garrison Diversion Unit Reformulation Act of 1986 [Pub. L. 99-294; 100 Stat. 418], Dakota Water Resources Act of 1998, or other federal Act. The local cost has not been determined and will be determined after project configuration is complete.
    2. Northwest area water supply project: One million seven hundred thousand dollars in local funds and three million three hundred thousand dollars in federal funds.
    3. Other municipal, rural, and industrial projects: Seventeen million seven hundred thousand dollars in local funds and thirty-two million eight hundred thousand dollars in federal funds.
    4. Grand Forks flood control: Annual bond repayments of three million nine hundred thousand dollars.
    5. Devils Lake outlet to Sheyenne River and to west Stump Lake: Bond repayments of one million five hundred thousand dollars per year.
    6. General projects: Twenty-four million dollars in local funds, eighteen million four hundred thousand dollars in state funds, and five million five hundred thousand dollars in federal funds.
  7. Beyond the year 2011:
    1. Water to eastern North Dakota: The local cost has not been determined and will be determined after project configuration is complete.
    2. Northwest area water supply project: Eight million seven hundred thousand dollars in local funds and sixteen million three hundred thousand dollars in federal funds.
    3. Other municipal, rural, and industrial projects: One hundred thirty million two hundred thousand dollars in local funds and two hundred forty-one million two hundred thousand dollars in state funds. The anticipated three hundred forty-five million dollars in federal cost-share has been used in the previous bienniums and the remaining cost-share for projects has been identified as a potential state cost-share.
    4. Grand Forks flood control: A total of fifty-eight million five hundred thousand dollars in bond repayments is anticipated.
    5. Devils Lake outlet to Sheyenne River and to west Stump Lake: A total of fifteen million dollars in bond repayments.
    6. General projects: Two hundred twenty million two hundred thousand dollars in local funds, one hundred fifty-six million four hundred thousand dollars in state funds, and thirty-four million three hundred thousand dollars in federal funds.

Source:

S.L. 1999, ch. 535, § 1; 2001, ch. 562, § 1.

Law Reviews.

Transboundary Water Disputes on an International and State Platform: A Controversial Resolution to North Dakota’s Devil’s Lake Dilemma, 82 N.D. L. Rev. 997 (2006).

61-01-27. Procedure for converting mineral wells to water wells.

In order to protect the public’s health, safety, and welfare and to protect this state’s ground water supplies, and except for purposes related to chapters 38-08 and 38-08.1, no well that has been drilled for the purpose of the exploration or production of oil or gas may be converted to a water well without first obtaining approval from the industrial commission. Any person who converts an exploration or production well to a water well without first obtaining approval from the industrial commission is guilty of a class A misdemeanor and shall be required to close the well in accordance with state standards and bear all costs associated with the closure.

Source:

S.L. 1985, ch. 668, § 1; 1987, ch. 738, § 1.

CHAPTER 61-02 Water Commission

61-02-01. Water conservation, flood control, management, and development declared a public purpose.

It is hereby declared that the general welfare and the protection of the lives, health, property, and the rights of all the people of this state require that the conservation, management, development, and control of waters in this state, public or private, navigable or non-navigable, surface or subsurface, the control of floods, and the management of the atmospheric resources, involve and necessitate the exercise of the sovereign powers of this state and are affected with and concern a public purpose. It is declared further that any and all exercise of sovereign powers of this state in investigating, constructing, maintaining, regulating, supervising, and controlling any system of works involving such subject matter embraces and concerns a single object, and that the state water commission in the exercise of its powers, and in the performance of all its official duties, shall be considered and construed to be performing a governmental function for the benefit, welfare, and prosperity of all the people of this state.

Source:

S.L. 1937, ch. 255, § 1; 1939, ch. 256, § 1; R.C. 1943, § 61-0201; S.L. 1983, ch. 676, § 1; 2013, ch. 481, § 1.

Cross-References.

State water resources policy, see N.D.C.C. § 61-01-26.

Validation of acts of commission, see N.D.C.C. § 1-06-03.

Law Reviews.

An Institutional Overview of the North Dakota State Water Conservation Commission: Its Operation and Setting, Dean F. Bard and Robert E. Beck, 46 N.D. L. Rev. 31 (1970).

The Nature and Extent of Rights in Water in North Dakota, Robert E. Beck and John C. Hart, 51 N.D. L. Rev. 249 (1975).

Waterfowl Production Areas: A State Perspective, 60 N.D. L. Rev. 659 (1984).

61-02-01.1. Statewide water development program.

The legislative assembly finds that there is a critical need to develop a comprehensive statewide water development program. The state water commission shall develop and implement a comprehensive statewide water development program. The commission shall design the program to serve the long-term water resource needs of the state and its people and to protect the state’s current usage of, and the state’s claim to, its proper share of Missouri River water.

Source:

S.L. 1997, ch. 25, § 9.

Law Reviews.

For Note: The Future of Quantifying Tribal Water Rights in North Dakota, see 84 N.D. L. Rev. 455 (2008).

61-02-01.2. State water commission — Policies for water retention projects.

The state water commission shall develop policies, including cost-sharing guidelines, which further the development of water retention projects for flood control. The commission shall provide a report regarding the policies to the sixty-second legislative assembly.

Source:

S.L. 2009, ch. 592, § 1.

61-02-01.3. Comprehensive water development plan.

Biennially, the commission shall develop and maintain a comprehensive water development plan organized on a river basin perspective, including an inventory of future water projects for budgeting and planning purposes. As part of the commission’s planning process, to facilitate local project sponsor participation and project prioritization and to assist in education regarding life cycle analyses for municipal water supply projects, and economic analyses for flood control and water conveyance projects expected to cost more than one million dollars, the commission shall develop a policy that outlines procedures for commissioner-hosted meetings within the upper Missouri River, lower Missouri River, James River, upper Red River, lower Red River, Mouse River, Devils Lake, Little Missouri River, upper Heart River, and upper Cannonball River drainage basins.

Source:

S.L. 2013, ch. 478, § 1; 2017, ch. 419, § 1, eff August 1, 2017; 2021, ch. 489, § 1, eff August 1, 2021.

61-02-01.4. State water commission cost-share policy.

The state water commission shall review, gather stakeholder input on, and rewrite as necessary the commission’s “Cost-share Policy, Procedure and General Requirements” and “Project Prioritization Guidance” documents. The commission’s cost-share policy:

  1. Must provide a water supply project is eligible for a cost-share up to seventy-five percent of the total eligible project costs.
  2. May not determine program eligibility of water supply projects based on a population growth factor. However, a population growth factor may be used in prioritizing projects for that purpose.
  3. Must consider all project costs potentially eligible for reimbursement, except the commission shall exclude operations expense, regular maintenance, and removal of vegetative materials and sediment, for assessment drains, and may exclude operations expense and regular maintenance for other projects. Snagging and clearing of watercourses and deepening or widening of existing drains are eligible for reimbursement. The commission shall require a water project sponsor to maintain a capital improvement fund from the rates charged customers for future extraordinary maintenance projects as condition of funding an extraordinary maintenance project.
  4. May not determine program eligibility of water supply projects based on affordability. However, affordability may be used in prioritizing projects for that purpose.

History. S.L. 2015, ch. 54, § 33, eff July 1, 2015; 2017, ch. 419, § 2, eff August 1, 2017; 2019, ch. 507, § 1, eff August 1, 2019; 2021, ch. 490, § 1, eff May 3, 2021.

61-02-01.5. North Dakota outdoor heritage fund grants — Effect on local cost-share. [Repealed]

History. S.L. 2015, ch. 54, § 34, eff July 1, 2015; Repealed by 2021, ch. 489, § 2, eff August 1, 2021.

61-02-02. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Commission” means the state water commission.
  2. “Cost of works” includes:
    1. The cost of construction, the cost of all lands, property rights, water rights, easements, and franchises acquired which are deemed necessary for such construction;
    2. The cost of all water rights acquired or exercised by the commission in connection with the works;
    3. The cost of all machinery and equipment, financing charges, interest before and during construction and for a period not exceeding three years after the completion of construction;
    4. The cost of engineering and legal expenses, plans, specifications, surveys, estimates of cost, and other expenses necessary or incident to determining the feasibility or practicability of a project;
    5. Administrative expenses;
    6. The construction of the works and the placing of the works in operation; and
    7. Other expenses necessary or incident to the financing authorized in this chapter, including funding of debt service, repair and replacement reserves, capitalized interest, and the payment of bond issuance costs.
  3. “Cost-share” means funds appropriated by the legislative assembly or otherwise transferred by the commission to a local entity under commission policy as reimbursement for a percentage of the total approved cost of a project approved by the commission.
  4. “Economic analysis” means an estimate of economic benefits and direct costs that result from the development of a project.
  5. “Grant” means a one-time sum of money appropriated by the legislative assembly and transferred by the commission to a local entity for a particular purpose. A grant is not dependent on the local entity providing a particular percentage of the cost of the project.
  6. “Life cycle analysis” means the summation of all costs associated with the anticipated useful life of a project, including project development, land, construction, operation, maintenance, and disposal or decommissioning.
  7. “Loan” means an amount of money lent to a sponsor of a project approved by the commission to assist with funding approved project components. A loan may be stand-alone financial assistance.
  8. “Owner” includes all individuals, associations, corporations, limited liability companies, districts, municipalities, and other political subdivisions of this state having any title or interest in any properties, rights, water rights, easements, or franchises to be acquired.
  9. “Project” means any one of the works defined in subsection 10, or any combination of such works, which are physically connected or jointly managed and operated as a single unit.
  10. “Water conveyance project” means any assessment drain, streambank stabilization, or snagging and clearing of water courses.
  11. “Works” includes:
    1. All property rights, easements, and franchises relating to and deemed necessary or convenient for their operation;
    2. All water rights acquired and exercised by the commission in connection with such works;
    3. All means of conserving and distributing water, including reservoirs, dams, diversion canals, distributing canals, channels, lateral ditches, pumping units, mains, pipelines, treatment plants, and waterworks systems; and
    4. All works for the conservation, control, development, storage, treatment, distribution, and utilization of water, including works for the purpose of irrigation, flood control, watering stock, supplying water for public, domestic, industrial, and recreational use, fire protection, and the draining of lands injured or in danger of injury as a result of such water utilization.

Source:

S.L. 1937, ch. 255, § 2; 1939, ch. 256, § 2; R.C. 1943, § 61-0202; S.L. 1963, ch. 417, § 4; 1983, ch. 676, § 2; 1993, ch. 54, § 106; 1999, ch. 535, § 2; 2017, ch. 19, § 17, eff August 1, 2017; 2017, ch. 419, § 3, eff August 1, 2017; 2019, ch. 507, § 2, eff August 1, 2019.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-02-03. Apportioning or allocating water rights by commission.

In case any water rights shall be acquired or exercised by the commission in connection with two or more works and projects, the commission, by resolution, shall apportion or allocate to each of such works or projects such part of such water rights as it may determine, and upon adoption of such a resolution, such water rights shall be deemed to be a part of each of such works and projects to the extent that such water rights have been so apportioned or allocated thereto respectively.

Source:

S.L. 1937, ch. 255, § 2, subs. f; 1939, ch. 256, § 2, subs. f; R.C. 1943, § 61-0203.

Law Reviews.

For Note: The Future of Quantifying Tribal Water Rights in North Dakota, see 84 N.D. L. Rev. 455 (2008).

61-02-04. State water commission — Members — Terms — Qualifications.

The state water commission consists of the governor, agriculture commissioner, and eight other members appointed by the governor who shall take into account reasonable geographic considerations in making the appointments with the intent of having each of the eight major drainage basins represented by a commissioner who resides in the basin. The major drainage basins are the upper Missouri River basin; the lower Missouri River basin; the James River basin; the upper Red River basin; the lower Red River basin; the Mouse River basin; the Devils Lake basin; and the Little Missouri River, upper Heart River, and upper Cannonball River basin. The governor or the agriculture commissioner, or both, may appoint a representative to serve in that official’s capacity at meetings that official is unable to attend. The eight appointive members of the commission must be appointed for a term of six years each with the terms of office so arranged that not more than four terms expire on the first day of July of each odd-numbered year. Each appointive member must be a qualified elector of the state and is subject to removal by judicial procedure. In case of a vacancy, the vacancy must be filled by appointment by the governor for the remainder of the unexpired term. Before entering upon the discharge of official duties, each appointive member shall take, subscribe, and file with the secretary of state the oath prescribed for civil officers.

Source:

S.L. 1937, ch. 255, § 3; 1939, ch. 256, § 3; R.C. 1943, § 61-0204; S.L. 1949, ch. 344, § 1; 1957 Supp., § 61-0204; S.L. 1961, ch. 332, § 25; 1963, ch. 417, § 5; 1967, ch. 74, § 20; 1981, ch. 626, § 1; 1983, ch. 676, § 3; 1991, ch. 698, § 1; 2017, ch. 419, § 4, eff August 1, 2017; 2019, ch. 507, § 3, eff August 1, 2019.

Cross-References.

Governor’s power to appoint majority of members of commission, see N.D.C.C. § 54-07-01.2.

Oath required of civil officers, see N.D. Const., art. XI, § 4; N.D.C.C. § 44-01-05.

61-02-04.1. Conflict of interest.

  1. A member of the commission who has a direct or indirect personal or pecuniary interest in a matter before the commission must disclose that fact to the commission and may not participate in or vote on that particular matter.
  2. Sections 12.1-13-02, 12.1-13-03, and 48-01.2-08 do not apply to contracts in which a member of the commission is directly or indirectly interested if the requirements of subsection 1 have been met.

Source:

S.L. 2001, ch. 563, § 1; 2007, ch. 403, § 17.

61-02-05. Chairman of commission.

The governor is the chairman of the commission. The governor shall designate a vice chairman from the members of the commission. The director of the department of water resources is the secretary of the commission.

Source:

S.L. 1937, ch. 255, § 3; 1939, ch. 256, § 3; R.C. 1943, § 61-0205; S.L. 1983, ch. 676, § 4; 2021, ch. 488, § 31, eff August 1, 2021.

Cross-References.

Chief engineer and secretary of commission, state engineer as, see N.D.C.C. § 61-03-01.

61-02-06. Principal and branch offices of commission.

The commission shall maintain its principal office in the city of Bismarck and may maintain such branch offices in the state as it may determine.

Source:

S.L. 1937, ch. 255, § 4; 1939, ch. 256, § 4; R.C. 1943, § 61-0206.

61-02-07. Quorum — What constitutes.

A majority of the members of the commission constitutes a quorum, and the affirmative or negative vote of six members is necessary to bind the commission except for adjournment.

Source:

S.L. 1937, ch. 255, § 4; 1939, ch. 256, § 4; R.C. 1943, § 61-0207; S.L. 1949, ch. 344, § 2; 1957 Supp., § 61-0207; S.L. 1983, ch. 676, § 5; 2017, ch. 419, § 5, eff August 1, 2017; 2019, ch. 507, § 4, eff August 1, 2019.

61-02-08. Meetings of commission.

The commission shall hold at least one meeting every two months at places as it, by resolution, may provide. The governor shall serve as chairman, and the commission shall select a member of the commission to serve as vice chairman. The chairman, or in the chairman’s absence or disability, the vice chairman of the commission, may issue a call for any meeting at any time. The governor or governor’s appointed representative shall preside at all meetings of the commission, and in case of the absence or disability of the governor and governor’s appointed representative, the vice chairman shall preside.

Source:

S.L. 1937, ch. 255, § 4; 1939, ch. 256, § 4; R.C. 1943, § 61-0208; S.L. 1983, ch. 676, § 6; 1997, ch. 513, § 1; 2017, ch. 419, § 6, eff August 1, 2017; 2017, ch. 19, § 18, eff August 1, 2017.

Cross-References.

Meetings of public agencies open to public, see N.D. Const., art. XI, § 5; §§ 44-04-19 to 44-04-21.

61-02-09. Commission a state agency — Function as state.

The commission shall be a state agency with all of the powers and authority possessed by such a state agency in the performance of its duties. The commission may sue and be sued, plead and be impleaded, and contract and be contracted with. The commission in the exercise of all its powers and in the performance of all its duties shall be the state of North Dakota functioning in its sovereign and governmental capacity.

Source:

S.L. 1937, ch. 255, § 5; 1939, ch. 256, § 5; R.C. 1943, § 61-0209; S.L. 1981, ch. 627, § 14; 2013, ch. 479, § 1.

61-02-10. Commission to have seal — Judicial notice.

The commission shall have a seal bearing its name. Such seal shall be affixed to such records and other instruments as the commission may direct, and all courts shall take judicial notice thereof.

Source:

S.L. 1937, ch. 255, § 5; 1939, ch. 256, § 5; R.C. 1943, § 61-0210.

Cross-References.

Judicial notice, see N.D.R.Ev. 201.

61-02-11. Commission may adopt rules and regulations — Record kept by commission — Inspection.

The commission may adopt and enact all rules, regulations, resolutions, and bylaws deemed suitable and necessary in the conduct of its business and the performance of its duties. It shall keep accurate minutes and records of all its acts which at all reasonable times shall be open for public inspection and which it may cause to be published as it may deem desirable.

Source:

S.L. 1937, ch. 255, § 5; 1939, ch. 256, § 5; R.C. 1943, § 61-0211.

Cross-References.

Procedure for adoption and publication of administrative rules, see N.D.C.C. §§ 28-32-02 to 28-32-14.

61-02-12. Compensation and expenses of appointive members of commission.

Each appointive member of the commission is entitled to receive compensation per day in the amount provided for members of the legislative management under section 54-35-10 and must be reimbursed for expenses in the amounts provided in sections 44-08-04 and 54-06-09 while attending meetings of the commission or, at the discretion of the member, may receive either per diem compensation or expenses in those amounts while otherwise engaged in official business of the commission, including time of travel between home and the place at which the member performs such duties.

Source:

S.L. 1937, ch. 255, § 6; 1939, ch. 256, § 6; R.C. 1943, § 61-0212; S.L. 1963, ch. 417, § 6; 1973, ch. 498, § 1; 1993, ch. 592, § 1; 1997, ch. 432, § 31; 2011, ch. 491, § 1.

61-02-13. Employment of assistants.

The commission may hire and employ all necessary aid, help, and assistants, including members of all the professions, for the efficient performance of its powers and duties.

Source:

S.L. 1937, ch. 255, § 7; 1939, ch. 256, § 7; R.C. 1943, § 61-0213; S.L. 1959, ch. 372, § 116; 1983, ch. 676, § 7.

61-02-14. Powers and duties of the commission.

The commission is authorized:

  1. To investigate, plan, regulate, undertake, construct, establish, maintain, control, operate, and supervise all works, dams, and projects, public and private, which in the commission’s judgment may be necessary or advisable:
    1. To control the low-water flow of streams in the state.
    2. To impound water for the improvement of municipal, industrial, and rural water supplies.
    3. To control and regulate floodflow in the streams of the state to minimize the damage of floodwaters.
    4. To conserve and develop the waters within the natural watershed areas of the state and, subject to vested rights, to divert the waters within a watershed area to another watershed area and the waters of any river, lake, or stream into another river, lake, or stream.
    5. To improve the channels of the streams for more efficient transportation of the available water in the streams.
    6. To provide sufficient water flow for the abatement of stream pollution.
    7. To develop, restore, and stabilize the waters of the state for domestic, agricultural, and municipal needs; irrigation; flood control; recreation; and wildlife conservation by the construction and maintenance of dams, reservoirs, and diversion canals.
    8. To promote the maintenance of existing drainage channels in agricultural lands and to construct needed channels.
    9. To provide more satisfactory subsurface water supplies for the state’s municipalities.
    10. To finance the construction, establishment, and extraordinary maintenance of public works, dams, and irrigation projects, which in the commission’s judgment may be necessary and advisable. The commission may not provide a cost-share for the costs of operation, regular maintenance, or removal of vegetative materials and sediment, for assessment drains. Snagging and clearing of watercourses are not regular maintenance.
    11. To provide for the storage, development, diversion, delivery, and distribution of water for the irrigation of agricultural land and supply water for municipal and industrial purposes.
    12. To provide for the drainage of lands injured by or susceptible of injury from excessive rainfall or from the utilization of irrigation water, and subject to the limitations prescribed by law, to aid and cooperate with the United States and any department, agency, or officer of the United States, and with any county, township, drainage district, or irrigation district of this state, or of another state, in the construction or improvement of the drains.
    13. To provide water for stock.
    14. To provide water for the generation of electric power and for mining and manufacturing purposes.
  2. To define, declare, and establish rules and regulations:
    1. For the sale of waters and water rights to individuals, associations, corporations, limited liability companies, municipalities, and other political subdivisions of the state and for the delivery of water to users.
    2. For the full and complete supervision, regulation, and control of the water supplies within the state.
  3. To exercise full power and control of the construction, operation, and maintenance of works and the collection of rates, charges, and revenues realized from the works.
  4. To sell, lease, and otherwise distribute all waters which may be developed, impounded, and diverted by the commission under this chapter, for the purposes of irrigation, the development of power, and the watering of livestock, and for any other private or public use.
  5. To exercise all express and implied rights, power, and authority that may be necessary, and to do, perform, and carry out the expressed purposes of this chapter and the purposes reasonably implied incidentally to or lawfully connected with the expressed purposes of this chapter.
  6. To acquire, own, and develop lands for irrigation and water conservation and to acquire, own, and develop damsites and reservoir sites and to acquire easements and rights of way for diversion and distributing systems.
  7. To cooperate with the United States and any department, agency, or officer of the United States in the planning, establishment, operation, and maintenance of dams, reservoirs, diversion and distributing systems, for the utilization of the waters of the state for domestic, municipal, and industrial needs, irrigation, flood control, water conservation, and generation of electric power and for mining, agricultural, and manufacturing purposes. The commission may, within the limitations prescribed by law, acquire, convey, contribute, or grant to the United States, moneys, real and personal property, including land or easements for dams and reservoir sites and rights of way and easements for diversion and distribution systems or participate in the cost of any project.
  8. To consider cost-sharing for water quality improvement projects.

Governing and providing for financing by local participants to the maximum extent deemed practical and equitable in any water development project in which the state participates in cooperation with the United States or with political subdivisions or local entities.

Source:

S.L. 1937, ch. 255, § 8; 1939, ch. 256, § 8; R.C. 1943, § 61-0214; S.L. 1945, ch. 328, § 1; 1957 Supp., § 61-0214; S.L. 1963, ch. 417, § 7; 1965, ch. 446, § 2; 1975, ch. 575, § 2; 1993, ch. 54, § 106; 2001, ch. 22, § 13; 2017, ch. 419, § 7, eff August 1, 2017; 2019, ch. 507, § 5, eff August 1, 2019.

Cross-References.

Procedure for adoption and publication of administrative rules, see N.D.C.C. §§ 28-32-02 to 28-32-14.

Southwest pipeline project, construction, operation and maintenance by commission, see N.D.C.C. § 61-24.3-10.

Law Reviews.

For Note: The Future of Quantifying Tribal Water Rights in North Dakota, see 84 N.D. L. Rev. 455 (2008).

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

61-02-14.1. Release or assignment of easements — Procedure.

The commission may, when it deems such action to be in the best interests of the state, for good and valuable consideration, release easements granted to the state for the construction, operation, and maintenance of dams, along with access thereto, if such dams have not been constructed within ten years of the granting of the easement or if such dams are no longer useful. The commission may also assign such easements to a political subdivision if it determines the assignment would be in the best interests of the state. Any release or assignment shall be in the name of the state of North Dakota by the governor and attested by the secretary of state.

Source:

S.L. 1977, ch. 567, § 1; 2003, ch. 550, § 1.

61-02-14.2. Commission contracts may be executed by director.

The director of the department of water resources, or the director’s authorized designee, may execute contracts approved by the commission.

Source:

S.L. 2011, ch. 492, § 1; 2021, ch. 488, § 32, eff August 1, 2021.

61-02-14.3. Commission agreements — Terms, conditions, and reapplication.

An agreement for funding which is approved by the commission to fund a water project under this chapter must require a progress report to the commission at least every four years if the term of the project exceeds four years. If a progress report is not timely received or, if after a review of a progress report, the commission determines the project has not made sufficient progress, the commission may terminate the agreement for project funding. The project sponsor may submit a new application to the commission for funding for a project for which the commission previously terminated funding.

Source:

S.L. 2017, ch. 419, § 8, eff August 1, 2017.

61-02-14.4 Carryover projects — Reporting requirements to the legislative management.

  1. The state water commission shall report quarterly to a legislative committee designated by the legislative management:
    1. Each project the state water commission has designated as a carryover project that has had a cost-share agreement in place for at least four years;
    2. The amount of funds still committed for each carryover project included in the report;
    3. The total amount of funds reallocated or made available from carryover projects included in a previous report to other projects since the commission’s preceding report; and
    4. The status of each carryover project for which the committee has made a recommendation under subsection 2 since the commission’s preceding report.
  2. The legislative committee designated by the legislative management to receive the state water commission’s reports may make a recommendation to the state water commission that a carryover project included in a report be terminated under section 61-02-14.3 and any funds remaining for the carryover project be reallocated and made available for projects with the same general purpose as the carryover project.

Source:

S.L. 2021, ch. 20, § 6, eff April 28, 2021.

61-02-15. Provisions of chapter not to limit or deprive state department of health of authority. [Repealed]

Repealed by S.L. 1975, ch. 575, § 2.

61-02-16. Preference is given to individual farmer or irrigation district when planning or constructing irrigation projects.

In planning and constructing irrigation projects, it shall be the policy of the commission to give preference to the individual farmer or groups of farmers or irrigation districts who intend to farm the land themselves.

Source:

S.L. 1937, ch. 255, § 8; 1939, ch. 256, § 8; R.C. 1943, § 61-0216.

61-02-17. Records, accounts, and statements of works and projects undertaken — Filed with office of management and budget.

The commission shall keep full and complete accounts and records of all matters and things relating to works and projects undertaken, established, and maintained by the commission and shall prepare annual balance sheets, income, and profit and loss statements, showing the financial condition of each project, and shall file copies thereof with the office of management and budget for public inspection at all reasonable times by any interested parties or citizens of the state.

Source:

S.L. 1937, ch. 255, § 8; 1939, ch. 256, § 8; R.C. 1943, § 61-0217; S.L. 1983, ch. 676, § 8.

61-02-18. Application for irrigation project — Fees to accompany — Surveys made.

Upon application by any landowner, holder of any easement, or holder of any lease of five or more years’ duration, or of any group or association of such landowners, easement holders, or leaseholders for an irrigation project, the commission shall make such preliminary engineering, soil survey, and other investigations as may be necessary to determine the feasibility of any such proposed project. Such applicant shall submit with the application such fees as the commission shall establish for projects of different classes. Following such preliminary survey and upon further application by the applicant, the commission shall enter into a contract with such applicant for a complete engineering, soil survey, and other investigations of said project. The soil survey shall meet such standards as are prescribed by the bureau of chemistry and soils of the federal government and the North Dakota state university of agriculture and applied science. The engineering survey shall be of sufficient detail and quality to enable the applicant to comply with the requirements for obtaining a permit to appropriate water, and to enable any competent contractor to estimate costs and quantities of material needed within reasonable limits, and to install such project without further engineering service. The contract for such engineering service between the applicant and the commission shall require the commission to pay not more than seventy-five percent of the cost of such detailed engineering survey and the drawing of the necessary plans and specifications, with not less than twenty-five percent to be paid by the applicant.

Source:

S.L. 1937, ch. 255, § 8; 1939, ch. 256, § 8; R.C. 1943, § 61-0218.

61-02-19. Works of commission may include preparation of land for irrigation when project undertaken by commission.

In any irrigation project undertaken by the commission serving a single individual, or a group of individuals owning irrigable lands, the works of the commission may include preparation of the land for irrigation.

Source:

S.L. 1937, ch. 255, § 8; 1939, ch. 256, § 8; R.C. 1943, § 61-0219.

61-02-20. Approval of commission necessary before constructing certain size dams — Inspection during construction. [Repealed]

Repealed by S.L. 1981, ch. 365, § 8.

61-02-21. Sewage and waste disposal or discharge — Water supply plant — Approval of commission required. [Repealed]

Repealed by S.L. 1975, ch. 575, § 2.

61-02-22. Acquisition of necessary property and power of condemnation.

The commission has full power and authority to acquire by purchase or exchange, upon such terms and conditions as the commission determines necessary and proper, and by condemnation in accordance with and subject to chapter 32-15 and the provisions of all laws applicable to the condemnation of property for public use, any lands, rights, water rights of whatever character, easements, franchises, and other property determined necessary or proper for the construction, operation, and maintenance of works. This chapter does not require the commission, in condemning any riparian water right, to condemn also the riparian land to which such right may be incident. The title to all property purchased, acquired, or condemned must be taken in the name of the commission and held in trust for, and for the use and benefit of, the people of this state.

Source:

S.L. 1937, ch. 255, § 10; 1939, ch. 256, § 10; R.C. 1943, § 61-0222; 2007, ch. 293, § 38.

Cross-References.

Eminent domain, see N.D.C.C. ch. 32-15.

61-02-23. Actions to acquire property rights.

The commission shall have full power and authority:

  1. To institute, maintain, and prosecute to final determination in any of the courts of this or any other state, or in any of the federal courts, any and all actions, suits, and special proceedings that may be necessary:
    1. To enable it to acquire, own, and develop lands for irrigation and water conservation, water distribution, and other necessary purposes. The commission may sell such lands upon such terms and conditions as it may prescribe and may own and hold title to lands for damsites, reservoir sites, water rights, easements, and rights of way for diversion and distributing systems, lateral ditches, and other means for the distribution of waters in this state, and for any other necessary purposes.
    2. To adjudicate all water rights upon any stream, watercourse, or source of water supply from which are derived the waters for such reservoir, diversion and distributing systems, lateral ditches, and other means of distribution.
  2. To join in any action any and all owners of vested water rights acquired by any person, association, corporation, or limited liability company, so that adjudication may be had of all surplus water upon all of the watercourses and sources, water supplies or any project constructed under the supervision and control of the commission.
  3. To join all persons interested as parties in all actions or condemnation proceedings affecting the title of, or holding liens upon, the property sought to be acquired as disclosed by the public records, and the court in such actions or special proceedings shall implead all parties necessary for a full and final determination of all issues upon their merits for the partition and distribution of damages awarded. In the event of controversy between such parties, the court may direct the amount of damages awarded to be paid in or deposited with the clerk of court to abide the result of further appropriate proceedings either in law or in equity. The taking possession of property sought to be condemned shall not be delayed by reason of any dispute between rival claimants or the failure to join any of them as parties to such action or condemnation proceedings.

Source:

S.L. 1937, ch. 255, § 10; 1939, ch. 256, § 10; R.C. 1943, § 61-0223; S.L. 1963, ch. 417, § 8; 1993, ch. 54, § 106.

61-02-23.1. Condemnation by the water commission.

Whenever a right of way is to be taken by condemnation proceedings for any purpose authorized by chapters 61-24.3 or 61-24.6, the commission may take possession of the right of way after making a written offer to purchase and depositing the amount of the offer with the clerk of the district court of the county wherein the right of way is located. The clerk shall immediately notify the property owner in writing of the deposit. Within thirty days after receiving notice, the property owner may appeal to the district court by serving notice of appeal upon the water commission and the matter must be tried at the next term of court with a jury, unless a jury is waived, in the manner prescribed for trials under chapter 32-15.

Source:

S.L. 1989, ch. 746, § 1; 1999, ch. 543, § 1.

61-02-23.2. Devils Lake outlet — Eminent domain — Design and build construction.

In the construction of an outlet from Devils Lake, the commission:

  1. Shall make a reasonable and diligent effort to acquire the property interests needed by negotiation. The commission is deemed to have made a reasonable and diligent effort if it has contacted or attempted to contact the owner of the property interest needed at least three times over a thirty-day period. If the commission is unable to acquire the interest needed by negotiation, then it may take possession of the interests needed after making a written offer to purchase and depositing the amount of the offer with the clerk of the district court of the county in which the property interest is located. The amount of the offer must be at least the average value per acre of comparable property. The clerk shall immediately notify the property owner in writing of the deposit. Within thirty days after receiving notice, the property owner may appeal to district court by serving notice of appeal upon the commission and the matter must be tried in the manner prescribed under chapter 32-15.
  2. May issue, when it determines that it would be advantageous to the state or that it is necessary in order to construct the outlet in a timely manner, a request for proposals to design and build the outlet. The request for proposals must require that each proposal submitted contain a single price that includes the cost to design and build the outlet. Neither chapter 48-01.2 or 54-44.7, nor any other law requiring competitive bidding applies to the construction of the outlet if the commission determines to use the design and build procedure. The commission shall select the proposal that it determines is the most advantageous to the state.

Source:

S.L. 2001, ch. 562, § 2; 2001, ch. 22, § 12; 2007, ch. 403, § 18.

61-02-23.3. Construction and operation of the Devils Lake outlet — Authorization — Agreement.

The state water commission may do all things reasonably necessary to construct an outlet from Devils Lake, including executing an agreement with the federal government in which the state water commission agrees to hold the United States harmless and free from damages, except for damages due to the fault or negligence of the United States or its contractors. The director of the department of water resources may employ full-time personnel and other personnel as necessary for the operation and maintenance of the Devils Lake outlet within the limits of legislative appropriations for that purpose. Notwithstanding section 61-02-64.1, funds disbursed from the contract fund and appropriated for the purposes of this section may be used for salaries, equipment, operations, and maintenance costs relating to the Devils Lake outlet.

Source:

S.L. 2003, ch. 43, § 12; 2005, ch. 21, § 11; 2021, ch. 488, § 33, eff August 1, 2021.

61-02-24. Cooperation and coordination with all existing agencies.

The commission may investigate, plan, cooperate, and make all contracts or compacts necessary or requisite:

  1. With the United States and any department, agency, or officer thereof.
  2. With the states of Minnesota, South Dakota, Montana, and Wyoming, or any political subdivision thereof, and with any other state, and with any department or officer or political subdivision of any state.
  3. With Canada or any of its provinces, and with any agency, department, or officer of Canada or any of its provinces.

The powers granted by this section shall extend to all waters, whether considered as intrastate, interstate, or international. The commission is specially authorized and empowered to cooperate with the United States or any of its agencies concerned with investigating, planning, conserving, utilizing, developing, and handling water in any form for purposes of water conservation, flood control, prevention of water pollution, or soil reclamation, or with any other resources of the state, and concerned with the administration of the public works program of the state or any part thereof. The commission is authorized to act and to contract fully with the United States, or with any department, agency, or officer thereof, with full power of purchase, sale, or lease to carry out, develop, or administer any federal project within this state or partly within the state, and also to accept and to use any funds provided by the United States or any agency thereof for any such purposes.

Source:

S.L. 1937, ch. 255, § 11; 1939, ch. 256, § 11; 1941, ch. 300, § 1; R.C. 1943, § 61-0224; S.L. 1963, ch. 417, § 9; 1983, ch. 676, § 9.

61-02-24.1. Cooperation and participation of political subdivisions.

All political subdivisions, including counties, townships, cities, park districts, and water resource districts may separately or jointly with other political subdivisions, the state of North Dakota through the commission or federal departments or agencies, investigate, plan, and do all things necessary for participating in or undertaking underground or surface water surveys, development, construction, reconstruction, and maintenance of works, dams, and projects for the beneficial utilization and control of water resources, and may enter into contracts with the commission to pay rents, charges, or other payments for the use of works of the commission.

Source:

S.L. 1963, ch. 417, § 10; 1983, ch. 676, § 10.

61-02-24.2. Payments in lieu of real estate taxes.

For land acquired for the Devils Lake project, the state water commission shall make payments in lieu of real estate taxes to the counties in which the property is located in the same manner and according to the same conditions and procedures as provided in chapter 57-02.1 for payments in lieu of real estate taxes by the state game and fish department.

Source:

S.L. 1997, ch. 25, § 7.

61-02-25. Duties of state agencies acting through interstate compacts or agreements.

Every state officer, department, board, and commission authorized by any law of this state to act upon or to be concerned with any interstate commission involving any interstate compact, or to act upon any foreign commission involving any foreign compact, or with any federal agency or department of the United States, the subject matter of which in any way concerns or involves water conservation, flood control, irrigation, water pollution or contamination, or the exercise of the powers and duties granted to the commission by this chapter, first shall submit to the commission the plans, purposes, and contemplated action and shall receive the approval of the commission therefor before making any agreement, contract, purchase, sale, or lease, for any of said purposes. The commission may give its aid and assistance to any state agency so acting with respect to any interstate compact.

Source:

S.L. 1937, ch. 255, § 12; 1939, ch. 256, § 12; R.C. 1943, § 61-0225; S.L. 1983, ch. 676, § 11.

61-02-26. Duties of state agencies concerned with intrastate use or disposition of waters.

Every state officer, department, board, and commission authorized by any law of this state to take any action, perform any duties, or make any contract concerning the use or disposition of waters, or water rights, within the state first shall submit to the department of water resources any plans, purposes, and contemplated action with respect to the use or disposition of the waters, and except as provided in this chapter, must receive the consent and approval of the department of water resources before making any agreement, contract, purchase, sale, or lease to carry into execution any works or projects authorized under the provisions of this chapter.

Source:

S.L. 1937, ch. 255, § 13; 1939, ch. 256, § 13; R.C. 1943, § 61-0226; S.L. 1983, ch. 676, § 12; 2021, ch. 488, § 34, eff August 1, 2021.

61-02-27. Proposals with respect to use or disposition of waters to be presented to department of water resources.

All persons, when concerned with any agreement, contract, sale, or purchase, or the construction of any works or project which involves the use and disposition of any water or water rights, shall present to the department of water resources all proposals with respect to the use or disposition of any waters before making any agreement, contract, purchase, sale, or lease regarding the waters.

Source:

S.L. 1937, ch. 255, § 14; 1939, ch. 256, § 14; R.C. 1943, § 61-0227; S.L. 1983, ch. 676, § 13; 1993, ch. 54, § 106; 2021, ch. 488, § 35, eff August 1, 2021.

61-02-28. Plans, investigations, and surveys concerning use of waters — Special powers of commission.

The commission may make plans, investigations, and surveys concerning the use of any and all waters, either within or without this state, for purposes of establishing, maintaining, operating, controlling, and regulating systems of irrigation, municipal, domestic, industrial, recreational, and fish and wildlife works and projects in connection therewith within the state. The commission shall have all necessary powers of purchasing, selling, leasing, and assigning in accordance with chapter 61-04, rights and interests in the use or in the appropriation of waters for which it has filed a declaration of intent pursuant to section 61-02-30, or obtained a conditional water permit for projects or works and shall possess full authority and jurisdiction to exercise and assert actual control over the corpus of all of such waters, and to regulate the diversion thereof subject to rules and methods prescribed by the commission. This power and authority shall include full right to contract and agree with any person, association, agency, or entity concerning water rights held by such person, association, agency, or entity through which the commission may be given full authority and jurisdiction over such water and water rights. In connection therewith the commission may coordinate, subordinate, supplement, and act jointly or subordinately with the United States, and any agency or department thereof, covering or concerning any federal project affecting water use, works, or projects in connection therewith.

Source:

S.L. 1937, ch. 255, § 15; 1939, ch. 256, § 15; R.C. 1943, § 61-0228; S.L. 1963, ch. 417, § 11; 1983, ch. 676, § 14.

61-02-29. Commission to have full control over unappropriated public waters of state.

The commission shall have full control over all unappropriated public waters of the state, whether above or under the ground, for which it has filed a declaration of intention pursuant to section 61-02-30, to the extent necessary to fulfill the purposes of this chapter.

Source:

S.L. 1937, ch. 255, § 16; 1939, ch. 256, § 16; R.C. 1943, § 61-0229; S.L. 1983, ch. 676, § 15.

Law Reviews.

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

61-02-30. Commission acquiring water rights and administering provisions of chapter — Declaration of intention.

In acquiring the rights and administering the terms of this chapter, the commission may initiate a right to waters of this state by executing a declaration in writing of the intention to store, divert, or control the unappropriated waters of a particular body, stream, basin, or source, designating and describing in general terms the waters claimed, means of appropriation, and location of proposed use, and shall cause the declaration to be filed in the department of water resources. The department shall issue a conditional water permit to the commission consistent with the terms of the declaration of intention, which vests in the commission on the date of the filing of the declaration. The commission also shall file in the department copies of the commission’s plans and specifications involved in completing any project for the appropriation of water which the commission intends to construct. Except as provided by this section, water rights must be acquired by any person, association, firm, corporation, limited liability company, municipality, or state or federal agency, department, or political subdivision in the manner provided by chapter 61-04.

Source:

S.L. 1937, ch. 255, § 16; 1939, ch. 256, § 16; R.C. 1943, § 61-0230; S.L. 1963, ch. 417, § 12; 1983, ch. 676, § 16; 1993, ch. 54, § 106; 2021, ch. 488, § 36, eff August 1, 2021.

61-02-31. Priority of a water right dates from when. [Repealed]

Repealed by S.L. 1983, ch. 676, § 38.

61-02-32. Modification of plans by commission regarding project to appropriate waters — Filing declaration of intention.

If the commission modifies its plans in connection with any proposed project for which the commission filed a declaration of intention to appropriate waters, the commission shall file in the department of water resources a declaration releasing all or part of the waters affected by the declaration.

Source:

S.L. 1937, ch. 255, § 16; 1939, ch. 256, § 16; R.C. 1943, § 61-0232; 2021, ch. 488, § 37, eff August 1, 2021.

61-02-33. Commission to file declaration of completion of appropriation with department of water resources.

Upon completing the construction of works and application to beneficial use of the waters described in the declaration provided in section 61-02-30, the commission shall file in the department of water resources a declaration of completion of the appropriation, reciting the matters contained in the original declaration of intention to appropriate and the conditional water permit for the works obtained from the department.

Source:

S.L. 1937, ch. 255, § 16; 1939, ch. 256, § 16; R.C. 1943, § 61-0233; S.L. 1983, ch. 676, § 17; 2021, ch. 488, § 38, eff August 1, 2021.

61-02-34. Declaration of intention to appropriate or release waters or completion of appropriation as evidence.

A certified copy of the record of the commission’s declaration of intention to appropriate waters, or of the release of all or part of said waters, or of the completion of appropriation, shall be received as competent evidence in all courts and shall be deemed prima facie proof of all matters recited therein.

Source:

S.L. 1937, ch. 255, § 16; 1939, ch. 256, § 16; R.C. 1943, § 61-0234.

61-02-35. When right of commission to waters attaches — Continuation of authority and jurisdiction.

The right of the commission to the waters within this state acquired as provided in this chapter for the purposes defined in this chapter shall attach at and from their source and while flowing in the streams, traveling to the means of control, as well as when actually confined by such means. The authority and jurisdiction of the commission shall continue over such waters after they are released for purposes of use and shall continue to such places of use, and the commission, through and by officers and agents under its authority, may continue to exercise control over such waters and may prevent the diversion thereof without permission first obtained. The commission may reclaim and possess all waters furnished or supplied by it seeping or overflowing from the previous place of use.

Source:

S.L. 1937, ch. 255, § 17; 1939, ch. 256, § 17; R.C. 1943, § 61-0235; S.L. 1983, ch. 676, § 18.

Law Reviews.

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

61-02-36. Natural streams employed as a means of diversion of water — Adopting methods to determine natural flow.

Wherever natural streams are employed as a means of diversion of water from the place of confinement to the place of use, the commission shall adopt proper methods and means of determining the natural flow of such streams when the amount of such natural flow is insufficient to satisfy or fill the needs of appropriators prior in right.

Source:

S.L. 1937, ch. 255, § 18; 1939, ch. 256, § 18; R.C. 1943, § 61-0236.

61-02-37. Headgates and measuring devices maintained by appropriators of natural streams — Commission adopting rules preventing diversion of water.

All appropriators of the natural flow of natural streams shall maintain headgates and measuring devices at their respective points of diversion for the purpose of enabling the commission or its authorized agents to determine the amount of water being diverted at any time. The commission may adopt and exercise any method or act to prevent the diversion of any waters under its control without permission first obtained.

Source:

S.L. 1937, ch. 255, § 18; 1939, ch. 256, § 18; R.C. 1943, § 61-0237; S.L. 1983, ch. 676, § 19.

61-02-38. Holder of water right on natural stream may turn control over to commission.

Any holder of a water right on a natural stream may agree with the commission that it shall have control of the diversion of waters due under such right. In such an event, the commission, through its officers and agents, may exercise the same authority over the waters due said appropriator and may cause them to be delivered to the appropriator in the same manner as in case of waters appropriated by the commission.

Source:

S.L. 1937, ch. 255, § 18; 1939, ch. 256, § 18; R.C. 1943, § 61-0238; S.L. 1963, ch. 417, § 14.

61-02-39. Commission may adjust plans and operation of project to obtain financial aid from United States.

For the purpose of obtaining financial aid from the United States, the commission may adjust the plans and operation of any project created under this chapter to conform to the laws and regulations of the federal government and the supervision of any board, bureau, or commission constituted under such authority and may exercise such powers whenever conferred.

Source:

S.L. 1937, ch. 255, § 19; 1939, ch. 256, § 19; R.C. 1943, § 61-0239.

61-02-40. Authority of commission to extend and be applied to natural waters of state.

The authority of the commission conferred by the provisions of this chapter shall extend and be applied to any right to the natural flow of the waters of this state which it may acquire by condemnation, purchase, exchange, appropriation, or agreement.

Source:

S.L. 1937, ch. 255, § 20; 1939, ch. 256, § 20; R.C. 1943, § 61-0240.

61-02-41. Surveys for the diversion of waters.

For the purpose of regulating the diversion of the natural flow of waters, employees of the department of water resources may enter upon the means and place of use of all appropriators for the purpose of making surveys of respective rights and seasonal needs.

Source:

S.L. 1937, ch. 255, § 20; 1939, ch. 256, § 20; R.C. 1943, § 61-0241; S.L. 1989, ch. 745, § 2; 2021, ch. 488, § 39, eff August 1, 2021.

61-02-42. Commission to take into consideration decrees of court adjudicating waters of natural stream.

The commission shall take into consideration the decrees of the courts of this state having jurisdiction which purport to adjudicate the waters of any natural stream or its tributaries, and a fair, reasonable, and equitable reconciliation shall be made between the claimants asserting rights under different decrees and between decreed rights and asserted rights of appropriation not adjudicated by any court.

Source:

S.L. 1937, ch. 255, § 20; 1939, ch. 256, § 20; R.C. 1943, § 61-0242.

61-02-43. Commission may hold hearings relating to rights of claimants — Notice — Findings made.

The commission may hold hearings relating to the rights of respective claimants after first giving such notice as it deems appropriate, and it may make findings of the date and quantity of appropriation and use of all claimants, which it shall recognize and observe in diverting the waters which it owns. The commission may police and distribute to the owner of any such recognized appropriation the waters due the owner upon request of such owner and under terms agreed upon.

Source:

S.L. 1937, ch. 255, § 20; 1939, ch. 256, § 20; R.C. 1943, § 61-0243.

61-02-44. Controlling natural flow of stream deemed police power — Water commissioners not to deprive commission.

The commission, when engaged in controlling and diverting the natural flow of any stream under the authority granted by the provisions of this chapter, shall be deemed to be exercising a police power of this state. Water commissioners appointed by any court shall not have any authority or jurisdiction to deprive the commission of any of the waters owned or administered under agreement with respective owners, but the owner of any prior or vested right contending that the commission is not recognizing and respecting such right may resort to a court of law or equity for the purpose of determining whether or not the rights of said claimant have been invaded, and the commission shall observe the terms of any final decree.

Source:

S.L. 1937, ch. 255, § 20; 1939, ch. 256, § 20; R.C. 1943, § 61-0244.

61-02-45. Commission may divert at any place on stream after impounding or acquiring the right of appropriation.

On the commission’s impounding or acquiring the right of appropriation of the waters of any stream, it may divert or authorize the diversion at any point on said stream, or any portion thereof, when the same may be done without injury to any prior appropriator or riparian owner whose rights shall not have been acquired by the commission as provided in this chapter.

Source:

S.L. 1937, ch. 255, § 20; 1939, ch. 256, § 20; R.C. 1943, § 61-0245.

61-02-46. Commission may issue bonds — Legislative authorization — Payment restricted.

  1. The commission may provide by resolution, at one time or from time to time, for the issuance of state water development revenue bonds for the purpose of paying the cost of any one or more of the works authorized by this chapter. The commission may provide for the refunding and refinancing of the bonds from time to time as often as it is advantageous and in the public interest to do so.
  2. If the principal amount of bonds to be issued for any one works pursuant to this chapter will exceed in the aggregate two million dollars, no bonds may be issued to finance that works unless the legislative assembly authorizes the works and declares the works to be in the public interest.
  3. Bonds issued under this chapter shall not be in any way a debt or liability of this state and shall not constitute a loan of the credit of this state or create any debt or debts, liability or liabilities on behalf of this state, or be or constitute a pledge of the faith and credit of this state, but all such bonds shall be payable solely from funds or revenues pledged or available for their payment as authorized in this chapter. The bonds shall not constitute a charge, lien, nor encumbrance, legal or equitable, upon any property of the commission, other than funds or revenues pledged for their payment. Each bond shall recite in substance that the bond, including interest thereon, is payable solely from the funds or revenues pledged to the payment thereof, and that the bond does not constitute a debt of this state or of the commission within the meaning of any constitutional or statutory limit.

Source:

S.L. 1937, ch. 255, § 21; 1939, ch. 256, § 21; 1941, ch. 300, § 2, subs. 1; R.C. 1943, § 61-0246; S.L. 1963, ch. 417, § 15; 1983, ch. 676, § 20; 1995, ch. 588, § 1.

61-02-47. When bonds to mature — Callable before maturity.

The bonds which may be issued by the commission shall mature at such time or times, either serially or at one time, in not more than forty years from their date, or dates, as may be fixed by the resolution of the commission, but may be made callable before maturity, if so stated in the resolution and on the face of each bond.

Source:

S.L. 1937, ch. 255, § 21; 1939, ch. 256, § 21; 1941, ch. 300, § 2, subs. 1; R.C. 1943, § 61-0247; S.L. 1971, ch. 249, § 25; 1983, ch. 676, § 21.

61-02-48. Commission to determine interest rate, form, denomination, and execution of bonds.

The commission shall determine the rate of interest bonds issued under this chapter shall bear, the time or times of payment of such interest, the form of the bonds, and the manner of executing the bonds, and shall fix the denomination or denominations of the bonds and the place or places of payment of principal and interest thereon, which may be at any bank or trust company within or without this state. The bonds shall be sold at public sale or private sale and at such price or prices as the commission shall determine.

Source:

S.L. 1937, ch. 255, § 21; 1939, ch. 256, § 21; 1941, ch. 300, § 2, subs. 1; R.C. 1943, § 61-0248; S.L. 1971, ch. 249, § 26; 1981, ch. 269, § 24; 1983, ch. 676, § 22; 1995, ch. 588, § 2.

61-02-49. Officers whose names are on bonds ceasing to be officers before delivery of bonds — Validity of bonds.

In case any of the officers whose signatures appear on the bonds or coupons provided for in this chapter shall cease to be such officers before the delivery of such bonds, such signatures nevertheless shall be valid and sufficient for all purposes, the same as if such officers had remained in office until such delivery.

Source:

S.L. 1937, ch. 255, § 21; 1939, ch. 256, § 21; 1941, ch. 300, § 2, subs. 1; R.C. 1943, § 61-0249.

61-02-50. Bonds issued are negotiable. [Repealed]

Repealed by S.L. 1983, ch. 676, § 38.

61-02-51. How bonds may be secured.

The bonds provided for in this chapter may be secured by works or lands, and the income derived therefrom, and other funds as the commission may pledge, and the funds received from the sale or disposal of water and from the operation, lease, sale, or other disposition of the works, lands, property, and facilities to be acquired out of the proceeds of the bonds and as provided in this chapter.

Source:

S.L. 1937, ch. 255, § 21; 1939, ch. 256, § 21; 1941, ch. 300, § 2, subs. 1; R.C. 1943, § 61-0251; S.L. 1983, ch. 676, § 23; 1995, ch. 588, § 3.

61-02-52. Commission may provide for registration of bonds.

Provision may be made by the commission for the registration of any of the bonds as provided by chapter 21-03.1.

Source:

S.L. 1937, ch. 255, § 21; 1939, ch. 256, § 21; 1941, ch. 300, § 2, subs. 2; R.C. 1943, § 61-0252; S.L. 1995, ch. 588, § 4.

61-02-53. Issuance and sale of bonds — Proceeds from sale — Use.

The bonds authorized under this chapter may be issued and sold from time to time and in amounts determined by the commission. The commission may, subject to the provisions of section 61-02-48, provide for the sale of the bonds in such manner and for such price as it may determine to be for the best interests of the state. The proceeds of the bonds shall be used solely for the payment of the cost of works authorized by this chapter plus costs of issuance, interest during construction, and any reasonably required reserve funds, and shall be paid out in such manner and under such restrictions as the commission may provide.

Source:

S.L. 1937, ch. 255, § 21; 1939, ch. 256, § 21; 1941, ch. 300, § 2, subs. 2; R.C. 1943, § 61-0253; S.L. 1971, ch. 249, § 27; 1981, ch. 269, § 25; 1983, ch. 676, § 24; 1995, ch. 588, § 5.

61-02-54. Resolution providing for issuance of bonds.

Each resolution providing for the issuance of bonds provided for in this chapter shall set forth the purpose or purposes for which the bonds are to be issued, the provisions for the payment of the bonds, and the revenues or other funds pledged to secure the payment of the bonds.

Source:

S.L. 1937, ch. 255, § 21; 1939, ch. 256, § 21; 1941, ch. 300, § 2, subs. 3; R.C. 1943, § 61-0254; S.L. 1983, ch. 676, § 25; 1995, ch. 588, § 6.

61-02-55. Issuance of temporary bonds.

Prior to the preparation of definitive bonds, the commission may issue or provide for the issuance of temporary bonds, exchangeable for definitive bonds when the definitive bonds have been executed and are available for delivery. Temporary bonds may be issued without any other proceedings or the happening of any other condition or thing specified and required by this chapter, except that if legislative authorization is required for the issuance of the definitive bonds pursuant to section 61-02-46, the authorization must be received before the temporary bonds may be issued.

Source:

S.L. 1937, ch. 255, § 21; 1939, ch. 256, § 21; 1941, ch. 300, § 2, subs. 2; R.C. 1943, § 61-0255; S.L. 1983, ch. 676, § 26; 1995, ch. 588, § 7.

61-02-56. Bond guaranty or insurance — Method.

Whenever the commission shall find it necessary to insure or guarantee the payment of all or a part of the principal or interest of any series of bonds, it may enter into an agreement to place under trust indenture or agree to deposit in a trust fund moneys now or hereafter appropriated, to guarantee and insure the payment of the interest on and principal of the bonds. From and with moneys thus appropriated, the commission may guarantee or insure, or agree to pay, or pay the interest on and principal of the bonds. The appropriation of such funds, and the use thereof by the commission to guarantee or insure the payment of any of its bonds, shall not be construed to be pledging the credit of the state of North Dakota nor the guaranteeing by the state of any bonds. The commission may also enter into an agreement with a private bond insurer or with a bank or other credit enhancement provider for bond insurance, a guaranty, a letter of credit, or any other credit enhancement that the commission may find to be advantageous or necessary to insure or guarantee the payment of the interest on or the principal of the bonds. The cost of any credit enhancement may be paid with bond proceeds or other funds available for that purpose.

Source:

S.L. 1937, ch. 255, § 21; 1939, ch. 256, § 21; 1941, ch. 300, § 2, subs. 4; R.C. 1943, § 61-0256; S.L. 1983, ch. 676, § 27; 1995, ch. 588, § 8.

61-02-57. Moneys appropriated to pay interest and principal of bonds available as a revolving fund.

Moneys appropriated to enable the commission to guarantee the payment of the interest or principal of its bonds shall be available to the commission as a continuing revolving fund, and moneys so appropriated, and any unexpended balances thereof, including interest on the moneys and unexpended balances, shall not revert to the state general fund at the end of any biennial fiscal period but shall be available for use by the commission to insure and guarantee the payment of, or pay, to the extent provided in this chapter, the interest and principal of its bonds until otherwise required by law.

Source:

S.L. 1937, ch. 255, § 21; 1939, ch. 256, § 21; 1941, ch. 300, § 2, subs. 4; R.C. 1943, § 61-0257; S.L. 1983, ch. 676, § 28; 1995, ch. 588, § 9.

61-02-58. Lien upon bond proceeds.

All moneys received from bonds of any series issued pursuant to this chapter shall be used solely for the purpose of paying the cost of the works or projects for the construction of which the bonds have been issued, or for the purpose of paying costs of issuance, interest during construction, and establishing any reasonably required reserve funds. There shall be a lien upon such moneys, until so used in favor of the holders of the bonds or the trustee provided for in this chapter in respect to the bonds.

Source:

S.L. 1937, ch. 255, § 22; 1939, ch. 256, § 22; 1941, ch. 300, § 3; R.C. 1943, § 61-0258; S.L. 1983, ch. 676, § 29; 1995, ch. 588, § 10.

61-02-59. Series of bonds may be secured by trust indenture.

In the discretion of the commission, any series of bonds may be secured by a trust indenture by and between the commission and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or outside of the state.

Source:

S.L. 1937, ch. 255, § 23; 1939, ch. 256, § 23; R.C. 1943, § 61-0259.

61-02-60. Trust indentures — Where filed — Filing constitutes constructive notice.

Each trust indenture, or an executed counterpart thereof, shall be filed in the office of the secretary of state. The filing of a trust indenture, or an executed counterpart thereof, in the office of the recorder of the county in which the property covered by said trust indenture is located shall constitute constructive notice of the contents thereof to all persons from the time of such filing, and no recording of such trust indenture or the contents thereof shall be necessary.

Source:

S.L. 1937, ch. 255, § 23; 1939, ch. 256, § 23; R.C. 1943, § 61-0260; S.L. 2001, ch. 120, § 1.

61-02-61. Resolution or indenture may contain provisions protecting bondholders — Expenses incurred in carrying out indenture.

Either the resolution providing for the issuance of bonds or the trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper. No enumeration of particular powers granted may be construed to impair any general grant of power contained in this chapter. All expenses incurred in carrying out the provisions of the resolution or trust indenture may be treated as a part of the cost of maintenance, operation, and repair of the works affected by the resolution or trust indenture.

Source:

S.L. 1937, ch. 255, § 23; 1939, ch. 256, § 23; R.C. 1943, § 61-0261; S.L. 1983, ch. 676, § 30; 1985, ch. 82, § 154; 1995, ch. 588, § 11.

61-02-62. Powers of commission in issuance of bonds.

In connection with the issuance of any bonds for the purpose of paying in whole or in part, or as supplemented by a grant from the United States or any instrumentality or agency thereof, the cost of any works or project, or in order to secure the payment of the bonds, the commission may:

  1. Pledge all or any part of the income, profit, and revenue of the works or project, and all moneys received from the sale or disposal of water, use of water, water storage, or other service, and from the operation, lease, sale, or other disposition of all or any part of the works or project, or other funds as the commission may determine.
  2. Covenant against pledging all or any part of the income, profit, and revenue of the works or project and all moneys received from the sale or disposal of water, use of water, water storage, or other service, and from the operation, lease, sale, or other disposition of all or any part of the works or project.
  3. Covenant against mortgaging all or any part of the works or project or against permitting or suffering any lien thereon.
  4. Covenant to fix and establish such prices, rates, and charges for water and other services made available in connection with the works or project as to provide at all times funds together with other funds the commission may pledge which will be sufficient:
    1. To pay all costs of operation and maintenance of the works or project, as permitted under this chapter, together with necessary repairs thereto;
    2. To meet and pay the principal and interest of all the bonds as they severally become due and payable; and
    3. To create such reserves for the principal and interest of all the bonds and for the meeting of contingencies in the operation, repair, replacement, and maintenance of the works or project as the commission shall determine.
  5. Make such further covenants as to prices, rates, and charges as the commission shall determine.
  6. Create special funds, in addition to those required by this chapter, for the meeting of contingencies in the operation and maintenance of the works or project and to determine the manner in which, and the depository or depositories in which, the funds shall be deposited and the manner in which the same shall be secured. Any bank or trust company incorporated under the laws of this state may act as the depository and shall furnish such indemnifying bonds or pledge such securities as may be required by the commission on all deposits exceeding the sum of five thousand dollars.
  7. Provide for the replacement of lost, destroyed, or mutilated bonds.
  8. Covenant against extending the time for the payment of the principal or interest on any bonds, directly or indirectly, by any means or in any manner.
  9. Prescribe and covenant as to the events of default and the terms and conditions upon which any or all of the bonds shall become, or may be declared, due before maturity, and as to the terms and conditions upon which a declaration and its consequences may be waived.
  10. Covenant as to the rights, liabilities, powers, and duties arising upon the breach by it of any covenant, condition, or obligation.
  11. Vest in a trustee or trustees the right to enforce any covenant made to secure or to pay the bonds, or to foreclose any trust indenture in relation thereto, provide for the powers and duties of the trustee, or trustees, and limit the liabilities thereof, and provide the terms and conditions upon which the trustee or trustees or the holders of bonds or any proportion of them may enforce any covenant or exercise the right of foreclosure.
  12. Make covenants and do any and all such acts and things as may be necessary or convenient or desirable in order to secure the bonds, or, in the absolute discretion of the commission, to make the bonds more marketable, notwithstanding that such covenants, acts, or things may not be enumerated or expressly authorized in this chapter.
  13. Do all things in the issuance of the bonds, and in providing for their security, that may not be inconsistent with the Constitution of North Dakota.

Source:

S.L. 1937, ch. 255, § 23; 1939, ch. 256, § 23; R.C. 1943, § 61-0262; S.L. 1983, ch. 676, § 31; 1995, ch. 588, § 12; 2017, ch. 419, § 9, eff August 1, 2017.

61-02-63. Mortgage of commission — Contents — Purchaser at foreclosure sale — Rights.

Any purchaser at any sale of any works or project pursuant to a judgment or decree in an action to foreclose a trust indenture conveying in trust or mortgaging any works or project financed with bonds issued by the commission as authorized by this chapter shall obtain title to the works or project free from any trust or other obligation of the commission, the state of North Dakota, or the public thereof, as to its operation, maintenance, use, or disposition except the obligation to use all water impounded in the works or project for sale, rental distribution, or other beneficial use.

Source:

S.L. 1937, ch. 255, § 24; 1939, ch. 256, § 24; R.C. 1943, § 61-0263; S.L. 1983, ch. 676, § 32; 1995, ch. 588, § 13.

61-02-64. Fund created by commission — Depository.

The commission shall have a fund to be known as the “contract fund”. The moneys in the contract fund shall be deposited in the state treasury. The contract fund shall have such accounts as the commission may determine. The use or disposition of such accounts, including the pledging thereof for the security of and payment on one or more series of bonds, shall be determined by the commission.

Source:

S.L. 1937, ch. 255, § 25; 1939, ch. 256, § 25; R.C. 1943, § 61-0264; S.L. 1965, ch. 447, § 3; 1983, ch. 676, § 33; 1995, ch. 588, § 14.

61-02-64.1. Contract fund — Purpose — Reimbursements to be deposited with the state treasurer.

Unless otherwise provided under the terms of a bond resolution or trust indenture adopted by the commission pursuant to this chapter, all contractual obligations of the commission, excepting salaries and expenses of commission employees and the cost of any office supplies, materials, and equipment, must be paid from the contract fund. The moneys in the contract fund must be paid out or disbursed in the manner determined by the commission. Any moneys paid to the commission by any department, agency, or political subdivision of this or another state or of the United States or any person, corporation, or limited liability company to meet its part of the cost of a water project, shared with the commission on a matching basis, and as determined by a contract entered into with the commission, must be held pursuant to the terms of the resolution or trust indenture adopted by the commission pursuant to this chapter or deposited with the state treasurer. Moneys deposited with the state treasurer are appropriated to the commission and must be credited to the contract fund.

Source:

S.L. 1961, ch. 377, § 1; 1965, ch. 447, § 4; 1993, ch. 54, § 106; 1995, ch. 588, § 15; 1997, ch. 514, § 1; 1997, ch. 515, § 1.

61-02-64.2. Repayment of loan proceeds and reimbursements deposited in resources trust fund.

Notwithstanding section 61-02-64.1, any repayment made after January 1, 1991, of any loans disbursed from the contract fund or resources trust fund and any moneys paid to the state or the commission after January 1, 1991, to reimburse the commission for moneys, other than bond proceeds, used for municipal, rural, and industrial water supply projects must be deposited in the resources trust fund in the state treasury.

Source:

S.L. 1991, ch. 44, § 7; 1997, ch. 515, § 2.

61-02-65. Commission to have complete system of accounting — Contents.

The commission shall have a complete system of accounting to show the total expenditure of and investment in each project and the total revenue derived therefrom and shall prepare periodic reports giving the financial statement of each project and the status of all projects together.

Source:

S.L. 1937, ch. 255, § 25; 1939, ch. 256, § 25; R.C. 1943, § 61-0265.

Cross-References.

Reports by state commissions, see N.D.C.C. §§ 54-06-03 to 54-06-04.3.

61-02-66. Construction fund — Contents — Disbursements — Surplus remaining. [Repealed]

Repealed by S.L. 1995, ch. 588, § 18.

61-02-67. Revenue bond payment fund — Contents. [Repealed]

Repealed by S.L. 1995, ch. 588, § 18.

61-02-67.1. Revenues and funds available to pay bonds.

Bonds issued under this chapter are payable solely from:

  1. Revenues to be received by the commission from the operation of a works financed with the bonds.
  2. Any other revenues available to the commission.

Source:

S.L. 1995, ch. 588, § 16.

61-02-68. State treasurer to pay interest on bonds — Redemption of bonds — Appropriation. [Repealed]

Repealed by S.L. 1995, ch. 588, § 18.

61-02-68.1. Borrowing on interim notes — Expenses paid and loans made from proceeds — Issuance of notes.

The commission, pursuant to appropriate resolution, and in order to carry out the business of developing the water resources of this state as provided in this chapter, may borrow money and issue interim financing notes (the terms “interim notes” or “notes”, unless the context otherwise requires, may be used in sections 61-02-68.1 through 61-02-68.19 in lieu of the term “interim financing notes”) in evidence thereof in order to provide owners with construction period financing. The construction period financing may include the costs of construction of works or projects, funding of debt service reserves and capitalized interest, and the payment of the costs of issuance.

Source:

S.L. 1981, ch. 627, § 1; 1999, ch. 536, § 1.

61-02-68.2. Interim financing notes guaranteed by United States agency or instrumentality — Limitations.

In addition to its other powers, the commission may enter into interim financing and loan agreements with any owner or owners to loan the proceeds of the commission’s interim financing notes to any owner or owners for works or projects authorized by this chapter anywhere within this state and to adopt the necessary resolution therefor, without regard to the limitations, provisions, or requirements of any other law, except those of this chapter. Before any such agreement can be entered into, an agency or instrumentality of the United States government, including the farmers home administration or the old west regional commission, or any agency of this state, including the Bank of North Dakota, must have committed itself to make a grant or loan to such owner or owners. Under this section, the commission may only provide interim financing less than or equal to the federal or state grant or loan commitment on each project and may not apply the proceeds of such notes and financing to any purpose other than expenses allowed by section 61-02-68.1 and the project or works for which the loan agreement is made. Notes authorized by sections 61-02-68.1 through 61-02-68.13 shall not be considered revenue bonds under section 61-02-46, and the proceeds of any such notes shall not be part of any commission fund as enumerated in section 61-02-64, and need not be deposited in the state treasury.

Source:

S.L. 1981, ch. 627, § 2.

61-02-68.3. Interim financing — Proper authority required.

Before entering into any loan agreement under section 61-02-68.2, the commission shall be satisfied by opinion of the attorney general, by an examination of relevant charters, resolutions, minutes, and other documents, or by other sufficient means that the owner or owners receiving such interim financing have the authority and power to construct the project or works, borrow these funds, and enter into the loan agreement. The commission shall also be so satisfied that all procedures, resolutions, and other things necessary to exercise such authority and power have been followed or properly performed.

Source:

S.L. 1981, ch. 627, § 3.

61-02-68.4. Interim financing — Independent review of feasibility of project.

Before issuing any interim financing notes pursuant to section 61-02-68.1, the commission shall conduct a review of the feasibility of the project or works to ensure that projected water consumption, operating costs, construction costs, revenues, and other statistics are reliable and that the project will be able to pay its expenses. The commission shall state the findings of its review in a motion entered in the minutes of its proceedings.

Source:

S.L. 1981, ch. 627, § 4.

61-02-68.5. Interim financing — Proceeds pledged as security — Assignment to commission of rights to proceeds.

Any interim financing agreement pursuant to section 61-02-68.2 shall provide that the owner or owners receiving the proceeds of such interim financing shall pledge and dedicate the proceeds of its loan or grant from the United States or the state as security for the interim financing notes issued pursuant to the loan agreement. In addition, the execution of any interim financing agreement under section 61-02-68.2 shall constitute an assignment to the commission of the right to receive the proceeds of the federal or state loan or grant so far as is necessary to secure the notes issued pursuant to the agreement and in preference to any other obligation whatsoever of the owner or owners receiving the interim financing. It shall not be necessary for the financing agreement, trust indentures, or any other document relating to the interim financing agreement to be filed or recorded in order for the assignment to the commission to be perfected.

Source:

S.L. 1981, ch. 627, § 5.

61-02-68.6. Terms of interim financing notes — Extension of maturity dates.

Any resolution authorizing the issuance of interim financing notes shall specify the principal amount, rate of interest, and maturity date, but not to exceed three years from the date of issue, and such other terms as may be specified in such resolutions. The time of payment of any such notes may be extended for a period of not exceeding two years from the maturity date thereof.

Source:

S.L. 1981, ch. 627, § 6.

61-02-68.7. Pledge of revenues to secure interim financing notes.

All interim financing notes and the interest thereon must be secured by a pledge of, and be payable from, any grant or loan to be made by an agency or instrumentality of the United States government or the state of North Dakota, as specified in section 61-02-68.2, and in connection with such project or works.

Source:

S.L. 1981, ch. 627, § 7.

61-02-68.8. Additional covenants and conditions to secure interim financing notes.

The commission, in order to further secure the payment of the interim financing notes, is authorized and empowered to make any other or additional covenants, terms, and conditions, and to do and perform such acts as may be necessary, convenient, or desirable in order to secure payment of its notes, and to make the notes more acceptable to lenders. Exercise of authority pursuant to this section shall be consistent with the provisions of this chapter.

Source:

S.L. 1981, ch. 627, § 8.

61-02-68.9. Registration of interim financing notes — Interest payment — Redemption prior to maturity.

The commission may provide for the registration of interim financing notes in the name of the owner either as to principal alone, or as to both principal and interest, on such terms and conditions as the commission may determine by the resolution authorizing their issue. Interest on the notes may be made payable semiannually, annually, or at maturity, however, the first interest payment period may be less than six months. The notes may be made redeemable, prior to maturity, at the option of the commission, in the manner and upon the terms fixed by the resolution authorizing their issuance.

Source:

S.L. 1981, ch. 627, § 9.

61-02-68.10. Execution and attestation of interim financing notes — Sale.

The interim financing notes must be executed by the chairman or the vice chairman of the commission and attested by the signature of the director of the department of water resources. The signature of the chairman or vice chairman, and the director, and any other signatures on appurtenant coupons, may be facsimiles. The notes must be sold at private or public sale in the manner and at the rate of interest and price as the commission determines by resolution.

Source:

S.L. 1981, ch. 627, § 10; 2021, ch. 488, § 40, eff August 1, 2021.

61-02-68.11. Bond provisions applicable to interim financing notes.

The provisions of sections 61-02-49, 61-02-59, 61-02-60, 61-02-61, 61-02-62, and 61-02-65, relating to bonds also apply to notes issued pursuant to section 61-02-68.1.

Source:

S.L. 1981, ch. 627, § 11; 1985, ch. 82, § 155.

61-02-68.12. Interim financing notes or guarantees not a state obligation — Payment restricted to revenues — Notes or guarantees not a lien.

Interim financing notes issued by the commission under this chapter or guarantees provided under section 61-02-68.14, 61-02-68.15, 61-02-68.16, 61-02-68.17, 61-02-68.18, or 61-02-68.19 are not a debt or liability of this state and do not constitute a loan of the credit of this state or create any debt or debts, liability or liabilities on behalf of this state, or be or constitute a pledge of the faith and credit of this state, but all notes or guarantees are payable solely from funds pledged or available for their payment as authorized in this chapter. The notes or guarantees do not constitute a charge, lien, nor encumbrance, legal or equitable, upon any property of the commission, other than funds received pursuant to an interim financing agreement.

Each note issued under this chapter must recite in substance that the note, including interest thereon, is payable solely from a loan or grant to be made by an agency or instrumentality of the United States government, or North Dakota, and that the note does not constitute a debt of the commission within the meaning of any constitutional or statutory limit.

Source:

S.L. 1981, ch. 627, § 12; 1999, ch. 536, § 2.

61-02-68.13. Interim financing notes as legal investments and security.

Notwithstanding any restrictions contained in any other law, this state and all public officers, boards and agencies, and political subdivisions and agencies thereof, all national banking associations, state banks, trust companies, savings banks and institutions, savings and loan associations, investment companies, and other persons carrying on a banking business, and all executors, administrators, guardians, trustees, and other fiduciaries, may legally invest any sinking funds, moneys, or other funds belonging to them or within their control in any interim financing notes issued by the commission pursuant to this chapter, and the notes are authorized security for any and all public deposits.

Source:

S.L. 1981, ch. 627, § 13; 1983, ch. 319, § 35.

61-02-68.14. Guarantee issued by commission.

The commission may guarantee evidences of indebtedness issued or other obligations undertaken by the owners of water projects eligible to receive municipal, rural, and industrial water supply funds pursuant to Pub. L. 99-294 [100 Stat. 418], or evidences of indebtedness issued or other obligations undertaken by a not-for-profit organization establishing a financing program for the owners of the water projects eligible to receive municipal, rural, and industrial water supply funds pursuant to Pub. L. 99-294 [100 Stat. 418] for the purpose of providing the owners with construction period financing. Construction period financing may include the cost of construction of works or projects, funding of debt service reserves and capitalized interest, and the payment of the costs of issuance. A commission guarantee of indebtedness or other obligations of an owner of a water project must be authorized by resolution of the commission and must be evidenced by a written agreement approved by the commission.

Source:

S.L. 1999, ch. 536, § 3.

61-02-68.15. Pledges.

The commission may pledge the municipal, rural, and industrial water supply funds authorized by Pub. L. 99-294 [100 Stat. 418] as security for a guarantee or note. A pledge is valid and binding whenever the pledge is made. The revenues or other moneys pledged and thereafter received by the commission are immediately subject to the lien of the pledge without physical delivery or further act, and the lien of the pledge is valid and binding as against all parties having claims of any kind against the commission, regardless of whether the parties have notice. Neither the resolution nor any other instrument by which a pledge is created need be filed or recorded, except in the records of the commission.

Source:

S.L. 1999, ch. 536, § 4.

61-02-68.16. Reserve fund.

  1. The commission shall establish and maintain a reserve fund in which there must be deposited all moneys appropriated by the legislative assembly for the purpose of the fund, all proceeds of notes issued or guaranteed by the commission required to be deposited in the fund by terms of a contract or a resolution of the commission with respect to the proceeds of notes, any moneys or funds of the commission that it determines to deposit in the fund, any moneys made available to the commission for the purposes of the fund from any other source, and any contractual right to the receipt of moneys by the commission for the purpose of the fund, including a letter of credit or similar instrument. Moneys in the reserve fund must be held and applied solely to the payment of the interest on and the principal of notes and sinking fund payments as they become due and payable and for the retirement of notes, including payment of any redemption premium required to be paid when any notes are redeemed or retired before maturity, and for the payment of principal and interest on evidences of indebtedness or obligations guaranteed by the commission. Moneys in the reserve fund may not be withdrawn if the withdrawal would reduce the amount in the reserve fund to an amount less than the required debt service reserve, except for payment of the interest due and payable on notes and the principal of notes maturing and payable and sinking fund payments and for the retirement of notes in accordance with the terms of a contract between the commission and its noteholders, for the payment of principal and interest on evidences of indebtedness or obligations of an owner of water projects for which a guarantee has been issued by the commission, and for payment of interest or principal or sinking fund payments or retirement of notes or draws upon a guarantee, for which other moneys of the commission are not then available in accordance with the terms of the contract. The reserve fund may not be used for the payment of a guarantee by the commission unless the commission has determined that notes of the commission cannot be issued under acceptable terms for the payment of the guarantee or that the payment of the guarantee will not reduce the reserve fund to an amount less than the required debt service reserve. The required debt service reserve must be an aggregate amount equal to at least the largest amount of money required by the terms of all contracts between the commission and its noteholders to be raised in the current or any succeeding calendar year for the payment of interest on and maturing principal of outstanding notes and the payment required by the terms of any contract to a sinking fund established for the payment or redemption of the notes.
  2. If the establishment of the reserve fund for an issue or the maintenance of an existing reserve fund at a required level under this section would necessitate the investment of all or any portion of a new reserve fund or all or any portion of an existing reserve fund at a restricted yield, because to not restrict the yield may cause the notes to be taxable under the Internal Revenue Code, then at the discretion of the commission a reserve fund does not need be established before the issuance of notes or the reserve fund need not be funded to the levels required by other subsections of this section or an existing reserve fund may be reduced.
  3. Notes may not be issued by the commission unless there is in the reserve fund the required debt service reserve for all notes then issued and outstanding and the notes to be issued. This chapter does not prevent or preclude the commission from satisfying this requirement by depositing so much of the proceeds of the notes to be issued, upon their issuance, as is needed to achieve the required debt service reserve. The commission may issue its notes for the purpose of providing an amount necessary to increase the amount in the reserve fund to the required debt service reserve, or to meet any higher or additional reserve as may be fixed by the commission with respect to the fund.
  4. In order to assure the maintenance of the required debt service reserve, there must be appropriated by the legislative assembly and paid to the commission for deposit in the reserve fund any sum certified by the commission as necessary to restore the reserve fund to an amount equal to the required debt service reserve or to maintain a reserve fund established by the commission under this chapter and required according to the terms of a guarantee issued by the commission. The commission may approve a resolution for the issuance of notes, as provided by this chapter, which states in substance that this subsection is not applicable to the required debt service reserve for notes issued under that resolution.
  5. If the maturity of a series of notes of the commission is not more than three years from the date of issuance of the notes, the commission may determine that no reserve fund need be established for that respective series of notes or that the reserve fund may be in an amount less than the required debt service reserve. If the determination is made, holders of that respective series of notes do not have an interest in or claim on existing reserve funds established for the security of the holders of previously issued commission notes, and do not have an interest in or claim on reserve funds established for the holders of subsequent issues of notes of the commission.

Source:

S.L. 1999, ch. 536, § 5.

61-02-68.17. Additional reserves and funds.

The commission may establish additional and further reserves or other funds or accounts as may be necessary, desirable, or convenient to further the accomplishment of the purposes of the commission to comply with the provisions of an agreement made by or a resolution of the commission.

Source:

S.L. 1999, ch. 536, § 6.

61-02-68.18. Protection of service during term of guarantee or loan.

  1. The service provided or made available by owners of water projects through the construction or acquisition of an improvement, or the improvement revenues, financed in whole or in part with a guarantee or loan to the owners of water projects from the commission or any other state entity, may not be curtailed or limited by inclusion of all or any part of the area served by the owners of water projects within the boundaries of any other owners of water projects, or by the granting of any private franchise for similar service within the area served by the owners of water projects, during the term of the guarantee or loan. The owners of water projects providing the service may not be required to obtain or secure a franchise, license, or permit as a condition of continuing to serve the area if it is included within the boundaries of another owner of a water project during the term of the guarantee or loan.
  2. Under the circumstances described in subsection 1, nothing prevents the two owners of water projects and the commission or other state entity from negotiating an agreement for the right or obligation to provide the service in question, provided that an agreement is invalid unless the commission or other state agency or enterprise is a party to the agreement and unless the agreement contains adequate safeguards to ensure the security and timely payment of any outstanding notes of the commission issued to fund the loan.

Source:

S.L. 1999, ch. 536, § 7.

61-02-68.19. Interim financing notes, guarantees, or bonds for municipal, rural, and industrial water supply projects — Public interest.

Guarantees made under section 61-02-68.14 or bonds or interim notes issued under this chapter for the purpose of providing construction period financing for owners of water projects eligible to receive municipal, rural, and industrial water supply funds pursuant to Pub. L. 99-294 [100 Stat. 418] are in the public interest and are not subject to the limitation contained in subsection 2 of section 61-02-46.

Source:

S.L. 1999, ch. 536, § 8.

61-02-69. Property of commission exempt from taxation.

All the property of the commission shall be exempt from taxation.

Source:

S.L. 1937, ch. 255, § 30; 1939, ch. 256, § 30; R.C. 1943, § 61-0269.

61-02-70. Expenses paid from administrative fund. [Repealed]

Repealed by S.L. 1965, ch. 447, § 24.

61-02-71. Commission may accept and receive appropriations and contributions.

The commission may receive and accept appropriations and contributions from any source, either of money or property or things of value, to be held, used, and applied for the purposes provided for in this chapter.

Source:

S.L. 1937, ch. 255, § 31; 1939, ch. 256, § 31; R.C. 1943, § 61-0271.

61-02-72. Revenue bonds of commission are legal and valid investments of financial institutions — Exemption from taxation.

Notwithstanding any restrictions contained in any other law, the state and all public officers, boards, and agencies, and political subdivisions and agencies thereof, all national banking associations, state banks, trust companies, savings banks and institutions, savings and loan associations, investment companies, and other persons carrying on a banking business, and all executors, administrators, guardians, trustees, and other fiduciaries, may legally invest any sinking funds, moneys, or other funds belonging to them or within their control in any bonds issued by the commission pursuant to this chapter, and the bonds are authorized security for public deposits. The bonds, and the interest thereon, are exempt from all state, county, and municipal taxes.

Source:

S.L. 1939, ch. 107, § 1; R.C. 1943, § 61-0272; S.L. 1983, ch. 319, § 36; 1983, ch. 676, § 37; 1985, ch. 82, § 156.

61-02-73. Construction of chapter.

Nothing contained in this chapter shall be deemed to interfere with any vested rights to the use of water. This chapter being necessary for the welfare of the state and its citizens, it shall be construed liberally to effect the purposes thereof.

Source:

S.L. 1939, ch. 256, § 33; R.C. 1943, § 61-0273.

61-02-74. Certain moneys to be deposited in general fund. [Repealed]

Repealed by S.L. 1971, ch. 587, § 1.

61-02-75. Hearing witnesses — Subpoena — Oath — Fees. [Repealed]

Repealed by S.L. 1987, ch. 739, § 1.

61-02-76. Hearing — Appeals from decision of commission.

Except as more specifically provided in this title, any person aggrieved because of any action or decision of the commission under the provisions of this title has the right to a hearing by the commission if no hearing on the matter resulting in the action or decision has been held. If a hearing has been held, the person aggrieved has the right to petition for reconsideration and to appeal, all in accordance with the provisions of chapter 28-32.

Source:

S.L. 1981, ch. 628, § 1; 1993, ch. 593, § 1.

61-02-77. Emergency municipal, tribal, and rural water system drinking water grant program.

The commission may establish an emergency municipal, tribal, and rural water assistance program for municipalities, tribes, and rural water systems, whose primary source of water is the Missouri River, Lake Sakakawea, or Lake Oahe. The commission may establish procedures, cost-share guidelines, and other criteria for municipalities, tribes, and rural water systems that request emergency assistance due to low water conditions on the Missouri River, Lake Sakakawea, or Lake Oahe. The purpose of this program is to provide emergency grant funds to municipalities, tribes, and rural water systems facing a critical need or health risk as a result of the inability of the water intake system for the municipal, tribal, or rural water system to supply an adequate quantity of quality water to the people served by the municipal, tribal, or rural water system.

Source:

S.L. 2007, ch. 554, § 1.

61-02-78. Infrastructure revolving loan fund — Continuing appropriation — Rules. [Repealed]

Source:

S.L. 2013, ch. 490, § 11; 2017, ch. 19, § 19, eff July 1, 2017; 2019, ch. 45, § 16, eff May 2, 2019; Repealed by 2021, ch. 80, § 6, eff July 1, 2021.

61-02-79. Bank of North Dakota — Line of credit.

The Bank of North Dakota shall extend a line of credit not to exceed fifty million dollars at a rate of one and one-half percent over the three month London interbank offered rate, but may not exceed three percent to the state water commission. The state water commission shall repay the line of credit from funds available in the resources trust fund, water development trust fund, or other funds, as appropriated by the legislative assembly. The state water commission may access the line of credit, as necessary, to provide funding as authorized by the legislative assembly for the northwest area water supply project during the biennium beginning July 1, 2021, and ending June 30, 2023.

History. S.L. 2015, ch. 54, § 32, eff July 1, 2015; 2017, ch. 19, § 20, eff July 1, 2017; 2019, ch. 45, § 17, eff May 2, 2019; 2021, ch. 20, § 7, eff April 28, 2021.

61-02-80. Flood control projects — Financial assistance limited.

Except for flood control projects authorized by the legislative assembly or the commission before July 1, 2017, the commission shall calculate the amount of its financial assistance, including loans, grants, cost-share, and issuance of bonds, based on the needs for protection of health, property, and enterprise, against:

  1. One hundred year flood events as determined by a federal agency;
  2. The national economic development alternative; or
  3. The local sponsor’s preferred alternative if the commission first determines the historical flood prevention costs and flood damages, and the risk of future flood prevention costs and flood damages, warrant protection to the level of the local sponsor’s preferred alternative.

Source:

S.L. 2017, ch. 419, § 10, eff August 1, 2017.

61-02-81. Development in breach inundation zones — No financial assistance for dam improvements.

Notwithstanding any other provision of law, if a political subdivision permits building or development within a breach inundation zone and the building or development causes a change in a dam’s current hazard classification necessitating structural improvements or upgrades to the dam, the political subdivision shall pay for the necessary improvements or upgrades. State loans, grants, cost-share, and other financial assistance may not be provided to pay for the dam improvements or upgrades. For purposes of this section, “breach inundation zone” means the area downstream of the dam which would be flooded in the event of a dam failure or uncontrolled release of water.

Source:

S.L. 2017, ch. 419, § 11, eff August 1, 2017.

CHAPTER 61-02.1 Flood Control or Reduction Projects

61-02.1-01. Legislative findings and intent — Authority to issue bonds.

  1. The legislative assembly finds that some cities suffered serious economic and social injuries due to the major flood disaster in 1997 and other recent floods and are at significant risk for future flooding; that construction of flood control or reduction projects is necessary for the protection of health, property, and enterprises and for the promotion of prosperity and the general welfare of the people of the state; and that construction of any such projects involves and requires the exercise of the sovereign powers of the state and concerns a public purpose. It is necessary and in the public interest the state by and through the state water commission assist in financing the costs of constructing flood control or reduction projects through the issuance of bonds.
  2. The legislative assembly finds continued construction of the southwest pipeline project is necessary for the protection of health, property, and enterprises and for the promotion of prosperity and the general welfare of the people of the state, involves and requires the exercise of the sovereign powers of the state, and concerns a public purpose. The legislative assembly also finds current funding for the southwest pipeline project has become uncertain, and it is necessary and in the public interest the state by and through the state water commission assist in financing the costs of continued construction of the southwest pipeline project through the issuance of bonds.
  3. The legislative assembly finds the Devils Lake basin is suffering and facing a worsening flood disaster; construction of an outlet from Devils Lake is necessary for the protection of health, property, and enterprises and for the promotion of prosperity and the general welfare of the people of the state; and construction of the outlet involves and requires the exercise of the sovereign powers of the state and concerns a public purpose. It is necessary and in the public interest an outlet from Devils Lake be constructed with financing from the state water commission to provide flood relief to the Devils Lake basin.
  4. The legislative assembly finds there is a critical need to develop a comprehensive statewide water development program to serve the long-term water resource needs of the state and its people and to protect the state’s current usage of, and the state’s claim to, its proper share of Missouri River water.
  5. In furtherance of the public purpose set forth in subsection 1, the state water commission may issue bonds under chapter 61-02, and the proceeds are appropriated for flood control projects authorized and funded in part by the federal government and designed to provide permanent flood control or reduction to cities that suffered severe damages as a result of the 1997 flood or other recent floods and to repay the line of credit extended to the state water commission under S.L. 1999, ch. 535, § 4. The commission may issue bonds for a flood control or reduction project only:
    1. When:
      1. A flood control or reduction project involves a city that suffered catastrophic flood damage requiring evacuation of the major share of its populace;
      2. A flood control or reduction project includes interstate features and requires acquisition of private property to build permanent flood protection systems to comply with federal flood protection standards;
      3. The governing body of a city provides a written certification to the state water commission that the city has committed itself to contribute one-half or more of the North Dakota project sponsor’s share of the nonfederal share of the cost to construct the project;
      4. The United States army corps of engineers issues its approval of the flood control or reduction project;
      5. A project cooperation agreement, which contains provisions acceptable to the department of water resources and is approved by the governor, is entered by the state of Minnesota or one of its political subdivisions in which the flood control or reduction project is to be constructed;
      6. A project cooperation agreement, which contains provisions acceptable to the department of water resources and is approved by the governor, is entered by the state or one of its political subdivisions in which the flood control or reduction project is to be constructed;
      7. The governing body of the city has approved a financing plan for all amounts of the nonfederal share of a flood control or reduction project in excess of the amounts to be paid by the state; and
      8. The flood control or reduction project is designed to be cost-effective, and any impact on residential neighborhoods is minimized in an amount reasonably practicable as determined by the department of water resources and approved by the governor;
    2. When a flood control or reduction project in a city with a population as of the 1990 federal decennial census of at least eight thousand and not more than ten thousand has received significant federal funding through federal grants and funds from the United States army corps of engineers and the federal emergency management agency; or
    3. When a flood control or reduction project in a city with a population as of the 1990 federal decennial census of at least four thousand five hundred and not more than six thousand has at least seventy percent of the land within the boundaries of the city located within the one hundred year floodplain as designated on a flood insurance rate map and the United States army corps of engineers issues its approval of the flood control or reduction project.
  6. In furtherance of the public purpose set forth in subsection 2, the state water commission may issue bonds under chapter 61-02, and the proceeds are appropriated for construction of the southwest pipeline project and to repay the line of credit extended to the state water commission under S.L. 1999, ch. 535, § 4. The commission may issue bonds under this chapter for continued construction of the southwest pipeline project only when it is determined the Perkins County water system will not make payment to the state water commission in the amount of four million five hundred thousand dollars or on January 1, 2000, whichever occurs earlier. If the Perkins County water system makes payment to the state water commission after January 1, 2000, the payment must be used to pay principal and interest on bonds issued for continued construction of the southwest pipeline project as provided in subsection 2 of section 61-02.1-04. If the Perkins County water system does not make payment to the state water commission, no benefits may accrue to the Perkins County water system.
  7. In furtherance of the public purposes set forth in subsections 3 and 4, the state water commission may issue bonds under chapter 61-02 to finance the cost of one or more of the projects identified in this section.
  8. This chapter does not affect the state water commission’s authority to otherwise issue bonds pursuant to chapter 61-02 or section 61-24.3-01.
  9. Notwithstanding this section, the state water commission may not issue bonds authorized under subsection 5 for a project unless federal funds have been appropriated for that project.

Source:

S.L. 1999, ch. 535, § 3; 2001, ch. 562, § 3; 2005, ch. 591, § 2; 2021, ch. 488, § 41, eff August 1, 2021.

Note.

Section 1 of chapter 549, S.L. 2003, provides:

AMENDMENT. Section 11 of chapter 535, S.L. 1999, as amended by section 1 of chapter 559, S.L. 2001 is amended and reenacted as follows:

SECTION 11. EXPIRATION DATE. Except for the issuance of bonds for construction of an outlet from Devils Lake, the authority of the commission to issue bonds as provided in chapter 61-02.1 is effective through June 30, 2001, and after that date is ineffective. The authority of the commission to issue bonds as provided in chapter 61-02.1 for construction of an outlet from Devils Lake is effective through June 30, 2005, and after that date is ineffective. However, the commission may continue to exercise all other powers granted to it under this Act and to comply with any covenants entered into pursuant to this Act.”

61-02.1-02. Bond issuance amount limited. [Repealed]

Repealed by S.L. 2005, ch. 591, § 4.

61-02.1-02.1. Funding — Statewide water development projects — Bond issuance amount.

  1. The priorities for the statewide water development program include municipal, rural, and industrial projects; irrigation projects; general water management projects, including rural flood control, snagging and clearing, channel improvement, recreation, and planning studies; flood control projects; and weather modification projects, which are authorized and declared to be in the public interest. The state water commission may provide the funds necessary to construct these projects from money appropriated to the state water commission from the resources trust fund or by issuing bonds in an amount not to exceed sixty million dollars plus the costs of issuance of the bonds, capitalized interest, and reasonably required reserves. The proceeds of any bonds issued under the authority provided in this section are appropriated to the state water commission for the purposes set forth in this section.
  2. If the state water commission determines it is appropriate to do so, it may, in lieu of issuing or in combination with the issuance of bonds pursuant to this section or section 61-02.1-01, for all or part of the state’s cost share for the projects set forth in those provisions, use funds appropriated to it from the resources trust fund.

Source:

S.L. 2001, ch. 22, § 14; 2003, ch. 43, § 13; 2005, ch. 591, § 3; 2021, ch. 32, § 10, eff July 1, 2021.

61-02.1-03. Limitation of action.

An action may not be brought or maintained in any court in this state questioning the validity of any bonds issued as provided in this chapter unless the action is commenced within thirty days after the adoption of the resolution of the state water commission authorizing the sale of the bonds. The state water commission may commence a special proceeding anytime after April 19, 1999, in and by which the constitutionality and validity of the bonds to be issued pursuant to this chapter may be judicially examined, approved and confirmed, or disapproved and disaffirmed. Proceedings must comply as nearly as possible with the procedure required for declaratory judgment proceedings.

Source:

S.L. 1999, ch. 535, § 3.

61-02.1-04. Bonds payable from appropriations and other revenues.

  1. Principal and interest on bonds issued for flood control or reduction projects as provided in this chapter are payable from transfers to be made and appropriated by the legislative assembly from the resources trust fund other than revenues from state taxes, then from appropriations of other available revenues in the then current biennium, and then from any other revenues the state water commission makes available during the then current biennium for that purpose, including any federal moneys received by the state for the construction of flood control or reduction projects to pay bonds issued for that project. If sufficient funds from these sources are not available, then from transfers to be made and appropriated by the legislative assembly from the first available current biennial earnings of the Bank of North Dakota not to exceed six million five hundred thousand dollars per biennium prorated with any other bonds payable from transfers to be made and appropriated by the legislative assembly from the available current biennial earnings of the Bank of North Dakota, to be credited by the trustee to the fund established for paying principal and interest on the bonds under a trust indenture.
  2. Principal and interest on bonds issued for continued construction of the southwest pipeline project are payable from the resources trust fund other than revenues from state taxes, then from appropriations of other available revenues in the then current biennium, or from payment from the Perkins County rural water system, and then from any other revenues the state water commission makes available during the then current biennium for that purpose, including any federal moneys received by the state for the construction of the southwest pipeline project to pay bonds issued for the project. If sufficient funds from these sources are not available, then from transfers to be made and appropriated by the legislative assembly from the first available current biennial earnings of the Bank of North Dakota not to exceed six million five hundred thousand dollars per biennium prorated with any other bonds payable from transfers to be made and appropriated by the legislative assembly from the available current biennial earnings of the Bank of North Dakota, to be credited by the trustee to the fund established for paying principal and interest on the bonds under a trust indenture.
  3. Principal and interest on bonds issued under subsection 7 of section 61-02.1-01 are payable from transfers to be made and appropriated by the legislative assembly from the resources trust fund other than revenues from state taxes, then from appropriations of other available revenues in the then current biennium, and then from any other revenues the state water commission makes available during the then current biennium for that purpose, including any federal moneys received by the state for the construction of an outlet to Devils Lake to pay bonds issued for that project, or financing a statewide water development program to pay bonds issued for that project. If sufficient funds from these sources are not available, then from transfers to be made and appropriated by the legislative assembly from the first available current biennial earnings of the Bank of North Dakota not to exceed six million five hundred thousand dollars per biennium prorated with any other bonds payable from transfers to be made and appropriated by the legislative assembly from the available current biennial earnings of the Bank of North Dakota, to be credited by the trustee to the fund established for paying principal and interest on the bonds under a trust indenture.
  4. Obligations issued as provided in this chapter do not constitute a debt, liability, or obligation of the state of North Dakota or a pledge of the faith and credit of the state of North Dakota, but are payable solely from the sources as described in this chapter.
  5. The state water commission shall include in its submission to the governor for inclusion by the governor in the biennial executive budget of the state for each year of the respective biennium during the term of any bonds issued as provided in this chapter an amount fully sufficient to pay the principal and interest required to be paid in each year of the biennium, if any, from moneys from non-general fund sources. Provided, that should the governor not include in the executive budget for any reason the amounts required to be included by this section, the state water commission shall request independently that the legislative assembly amend the executive budget appropriation so as to include the amounts.
  6. Principal and interest on bonds issued for projects authorized pursuant to section 61-02.1-02.1 are payable from transfers to be made and appropriated by the legislative assembly from the resources trust fund other than revenues from state taxes, then from appropriations of other available revenues in the then current biennium, and then from any other revenues the state water commission makes available during the then current biennium for that purpose. If sufficient funds from these sources are not available, then from transfers to be made and appropriated by the legislative assembly from the first available current biennial earnings of the Bank of North Dakota not to exceed six million five hundred thousand dollars per biennium prorated with any other bonds payable from transfers to be made and appropriated by the legislative assembly from the available current biennial earnings of the Bank of North Dakota, to be credited by the trustee to the fund established for paying principal and interest on the bonds under a trust indenture.

Source:

S.L. 1999, ch. 535, § 3; 2001, ch. 22, § 15; 2021, ch. 32, § 11, eff July 1, 2021.

61-02.1-05. Water development trust fund. [Repealed]

Source:

S.L. 1999, ch. 535, § 3; 2007, ch. 559, § 6; Repealed by 2021, ch. 32, § 13, eff July 1, 2021.

61-02.1-06. Grand Forks flood control project.

Notwithstanding any other provision of law or policy, any existing caps may not be construed to limit access to total state funding of up to fifty-two million dollars for the Grand Forks flood control project.

Source:

S.L. 2007, ch. 46, § 9.

CHAPTER 61-03 State Engineer

61-03-01. State engineer — Appointment — Qualifications — Term — Salary — Engaging in private practice. [Repealed]

Source:

S.L. 1905, ch. 34, § 5; R.C. 1905, § 7608; S.L. 1907, ch. 52, § 1; C.L. 1913, § 8239; S.L. 1929, ch. 224, § 1; 1941, ch. 228, § 1; R.C. 1943, § 61-0301; Repealed by 2021, ch. 488, § 225, eff August 1, 2021.

61-03-02. Oath of state engineer. [Repealed]

Source:

S.L. 1905, ch. 34, § 7; R.C. 1905, § 7610; C.L. 1913, § 8241; R.C. 1943, § 61-0302; S.L. 1999, ch. 113, § 21; Repealed by 2021, ch. 488, § 225, eff August 1, 2021.

61-03-03. Approval of claims.

All claims for services rendered, expenses incurred, or materials or supplies furnished under the direction of the director and which are payable from the funds appropriated for the work under the director’s direction and supervision must be approved by the director before payment.

Source:

S.L. 1905, ch. 34, § 8; R.C. 1905, § 7611; C.L. 1913, § 8242; R.C. 1943, § 61-0303; S.L. 1999, ch. 106, § 16; 2021, ch. 488, § 45, eff August 1, 2021.

61-03-04. Biennial report.

The director may submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

Source:

S.L. 1905, ch. 34, § 9; R.C. 1905, § 7612; C.L. 1913, § 8243; R.C. 1943, § 61-0304; S.L. 1963, ch. 346, § 71; 1973, ch. 403, § 55; 1975, ch. 466, § 57; 1995, ch. 350, § 53; 2021, ch. 488, § 46, eff August 1, 2021.

61-03-05. Fees of state engineer. [Repealed]

Source:

S.L. 1905, ch. 34, § 10; R.C. 1905, § 7613; C.L. 1913, § 8244; R.C. 1943, § 61-0305; S.L. 1957, ch. 374, § 1; 1957 Supp., § 61-0305; S.L. 1977, ch. 569, § 27; 1985, ch. 667, § 1; 1993, ch. 595, § 1; Repealed by 2015, ch. 471, § 4, eff July 1, 2015.

61-03-05.1. Deposit of certain fees in special fund — Purposes of fund. [Repealed]

Source:

S.L. 1979, ch. 636, § 1; 2021, ch. 56, § 15, eff August 1, 2021; Repealed by 2021, ch. 488, § 225, eff August 1, 2021.

61-03-06. Records of the department.

The records of the department are public records . The records must show in full all permits, certificates of completion of construction, licenses issued, actions taken on permits and licenses, and actions or decisions of the department affecting any rights or claims to appropriate water.

Source:

S.L. 1905, ch. 34, § 11; R.C. 1905, § 7614; C.L. 1913, § 8245; R.C. 1943, § 61-0306; 2021, ch. 488, § 47, eff August 1, 2021.

Cross-References.

Filings for appropriation in office of commission controlled by engineer, see N.D.C.C. § 61-04-01.

61-03-07. Investigations and reports for board of university and school lands. [Repealed]

Repealed by S.L. 1989, ch. 747, § 1.

61-03-08. Duty to cooperate with boards of county commissioners when requested.

When asked by a board of county commissioners, the department shall cooperate with the board in the engineering work required to lay out, establish, and construct any drain to be used by any county or portions of a county to divert floodwaters, lakes, or watercourses, and shall assist counties in making preliminary surveys and establishing systems of drainage.

Source:

S.L. 1905, ch. 34, § 63; R.C. 1905, § 7666; C.L. 1913, § 8301; R.C. 1943, § 61-0308; 2021, ch. 488, § 48, eff August 1, 2021.

61-03-09. State engineer’s duties in construction of bridges and culverts. [Repealed]

Repealed by S.L. 1989, ch. 747, § 1.

61-03-10. Custodian of government plats.

The department is the custodian of all plats, field notes, and similar records provided to the state by a federal government entity. Suitable rooms in the capitol building containing vaults for fireproof protection and the safekeeping of the records must be provided to the department.

Source:

S.L. 1909, ch. 218, §§ 1, 2; C.L. 1913, §§ 658a, 658b; R.C. 1943, § 61-0310; 2021, ch. 488, § 49, eff August 1, 2021.

61-03-11. Furnishing copies. [Repealed]

Repealed by S.L. 1993, ch. 595, § 2.

61-03-12. Attorney general and state’s attorney to provide legal counsel.

The attorney general, and the state’s attorney of the county in which legal questions arise, shall provide legal counsel for the department without compensation other than their salaries as fixed by law, except when otherwise provided.

Source:

S.L. 1905, ch. 34, § 34; R.C. 1905, § 7637; C.L. 1913, § 8268; R.C. 1943, § 61-0312; 2021, ch. 488, § 50, eff August 1, 2021.

61-03-13. Rulemaking authority.

The department may adopt rules necessary to carry out the duties of the department. The department shall amend 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, if required to do so by a vote of the state water commission.

Source:

S.L. 1905, ch. 34, § 12; R.C. 1905, § 7615; C.L. 1913, § 8246; R.C. 1943, § 61-0313; 2021, ch. 488, § 51, eff August 1, 2021.

Cross-References.

Procedure for adoption of administrative rules, see N.D.C.C. §§ 28-32-02 to 28-32-14.

Violation of rule or regulation of state engineer as misdemeanor, see N.D.C.C. § 61-01-25.

61-03-14. State water commission votes on modifications of rules .

The state water commission may vote on a modification of a department rule which is required under section 61-03-13 only on an appeal from a decision of the director.

Source:

S.L. 1905, ch. 34, § 13; R.C. 1905, § 7616; C.L. 1913, § 8247; R.C. 1943, § 61-0314; 2021, ch. 488, § 52, eff August 1, 2021.

61-03-15. Hydrographic surveys and investigations made by the department — Cooperating with federal agencies.

The department 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 appropriation of the water supply of the state. The department may cooperate with the agencies of the federal government engaged in similar surveys, investigations, or the construction of works for the development and use of the water supply of the state, and may expend funds appropriated to the department for that purpose.

Source:

S.L. 1905, ch. 34, § 14; R.C. 1905, § 7617; C.L. 1913, § 8248; R.C. 1943, § 61-0315; 2021, ch. 488, § 53, eff August 1, 2021.

61-03-16. Suit for adjudication of water rights.

Upon the completion of a hydrographic survey of any stream system, the department shall deliver a copy of the survey and all data necessary for the determination of all rights to the use of the waters of the system to the attorney general, who, within sixty days, shall enter suit on behalf of the state for the determination of all rights to the use of the water and proceed with the litigation until a final adjudication of the rights. If private parties initiated the suit, the attorney general shall intervene in the suit if the department notifies the attorney general intervening is necessary to protect the interests of the state.

Source:

S.L. 1905, ch. 34, § 15; R.C. 1905, § 7618; C.L. 1913, § 8249; R.C. 1943, § 61-0316; 2021, ch. 488, § 54, eff August 1, 2021.

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 persons that claim the right to use the waters must be made parties, and the department shall provide the court a complete hydrographic survey of the stream system. The cost of the suit including the litigation and survey costs incurred by the state must be charged to each of the private parties to the suit in proportion to the amount of the water right allotted.

Source:

S.L. 1905, ch. 34, § 16; R.C. 1905, § 7619; C.L. 1913, § 8250; R.C. 1943, § 61-0317; 2021, ch. 488, § 55, eff August 1, 2021.

61-03-18. Hydrographic survey fund — Use — Payments.

The hydrographic survey fund, a permanent fund, may be used only for the payment of the expenses of the surveys required under section 61-03-17. All claims for services rendered, expenses incurred, or materials or supplies furnished under the direction of the department for the surveys must be approved by the department. The amounts paid by private parties under section 61-03-17 for the surveys must be paid to the state treasurer, who shall credit the payments to the hydrographic survey fund.

Source:

S.L. 1905, ch. 34, § 17; R.C. 1905, § 7620; C.L. 1913, § 8251; R.C. 1943, § 61-0318; S.L. 1999, ch. 106, § 17; 2021, ch. 488, § 56, eff August 1, 2021.

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 must be prepared by the clerk of the court at the cost of the parties, and must be filed in the department. The decree must declare 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 the right is appurtenant, with any other conditions necessary to define the right and the priority of the right.

Source:

S.L. 1905, ch. 34, § 18; R.C. 1905, § 7621; C.L. 1913, § 8252; R.C. 1943, § 61-0319; 2021, ch. 488, § 57, eff August 1, 2021.

61-03-20. Cooperation with United States geological survey in making topographic maps.

The department may confer with the director of the United States geological survey and may accept the cooperation of the United States to execute topographic surveys and maps of this state. The department may arrange with the director or other authorized representative of the United States geological survey concerning the details of the surveys or maps, the method of execution, and the order in which the surveys and maps of different parts of the state are undertaken.

Source:

S.L. 1925, ch. 144, § 1; 1925 Supp., § 8234a1; R.C. 1943, § 61-0320; S.L. 1989, ch. 69, § 68; 2021, ch. 488, § 58, eff August 1, 2021.

61-03-21. Plans of operation for reservoirs — 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] annually shall file with the department, between the first and fifteenth day of February, an operating plan for the reservoir for the calendar year in which the plan is filed. The operator of the reservoir shall cooperate with the department to make all water releases compatible with the best interest of the greatest number of downstream water users and affected landowners. If the department declares an emergency in connection with the operation of the reservoir, the operator promptly shall submit to the department a separate interim operating plan for the reservoir. The interim operating plan must be coordinated and integrated with the suggestions and plans of the department to serve the affected persons during the emergency. The department may require reservoir operators to maintain adequate structures and operate them in a manner to prevent waste, promote the beneficial use of water, and not endanger the general health and welfare of persons affected by the reservoirs. If an operator fails to maintain and operate adequate structures, the department shall set a place and time for hearing and serve notice upon the operator to show cause why the operator’s water permit should not be canceled. A copy of any order canceling the water right must 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 department in accordance with chapter 28-32.

Source:

S.L. 1957, ch. 378, § 1; R.C. 1943, 1957 Supp., § 61-0321; S.L. 1963, ch. 417, § 17; 2001, ch. 120, § 1; 2021, ch. 488, § 59, eff August 1, 2021.

61-03-21.1. Inspection by department.

When the department is authorized or mandated by law to inspect or investigate an alleged violation of a statute under this title, the department may enter upon land to conduct the inspection or investigation. Except in emergency situations as determined by the department, the department 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 department may request the district court of the district containing the property for an order authorizing the department to enter the property to inspect or investigate the alleged violation.

Source:

S.L. 1985, ch. 669, § 2; 2021, ch. 488, § 60, eff August 1, 2021.

61-03-21.2. Removal or modification of unsafe or unauthorized works.

If the department determines works are unsafe or unauthorized, the department shall notify the landowners by registered mail at the landowner’s last-known post-office address of record. A copy of the notice also must be sent to any tenant, if the department has actual knowledge of the fact that a tenant exists. The notice must specify the nature and extent of the noncompliance and the modifications necessary for compliance, and must state if the works are not modified or removed within the period stated in the notice, but not less than thirty days, the department shall cause the removal or modification of the works and assess the cost of the removal or modification, or a portion of the cost as the department determines, against the property of the landowner responsible. The notice also must state the affected landowner may demand in writing a hearing on the matter within fifteen days of the date the notice is mailed. The request for a hearing must state with particularity the issues, facts, and points of law to be presented at the hearing. If the department 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 department shall set a hearing date without undue delay. In an emergency, the department immediately may 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 this section must be collected in the same manner as other assessments authorized by this title. If, in the opinion of the director, 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 a decision of the department under this section may appeal the decision to the district court of the county in which the land is located in accordance with chapter 28-32. A hearing under this section is a prerequisite to an appeal unless the hearing was denied by the department.

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.

Source:

S.L. 1985, ch. 669, § 1; 1989, ch. 745, § 3; 1991, ch. 699, § 1; 2021, ch. 488, § 61, eff August 1, 2021.

Notes to Decisions

Unauthorized Dams.

Because an unauthorized dam and slough on an owner’s land impounded sufficient water to require permits under N.D.C.C. §§ 61-04-02 and 61-16.1-38, and because no permits had been procured, the state engineer had authority under N.D.C.C. § 61-03-21.2 to order the owner to modify the unauthorized dam and to construct a ditch to drain the slough to 1543.5 feet mean sea level. Peterson v. Sando, 2011 ND 206, 806 N.W.2d 172, 2011 N.D. LEXIS 206 (N.D. 2011).

61-03-21.3. Removal, modification, or destruction of dangers in, on the bed of, or adjacent to navigable waters.

  1. If the department 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 department may issue an order to the person responsible for the object. If the department 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 department determines 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 department may cause the action to be taken. The department may require the action to be taken in less than twenty days if an emergency exists.
    1. The department may bring an action to enforce an order of the department, or if the department causes the action to be taken, the department may:
      1. Assess the costs of taking the action, or a portion of the costs as the department determines, against any property of the person responsible; or
      2. Bring a civil action against the person responsible to recover the costs incurred in taking the action.
    2. If the department 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 department 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.
  3. 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 department 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 department shall set a hearing date without undue delay.
  4. In an emergency, the department immediately may 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.
  5. Any person aggrieved by the action of the department may appeal the decision to the district court of the county in which the land is located in accordance with chapter 28-32. A hearing under this section is a prerequisite to an appeal unless the hearing was denied by the department.
  6. If the department has issued an order under this section with regard to a building, structure, boat dock, debris, or other manmade object the department has determined is likely to be a menace to life or property or public health or safety, and it later becomes known the object would not have become a menace, a person who has taken action required by the 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 notice from the department.
  7. Any person claiming compensation for the destruction of property or costs incurred under subsection 7 must file a claim with the department in the form and manner required by the department. Unless the amount of compensation is agreed to between the claimant and the department, 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.

Source:

S.L. 1997, ch. 516, § 1; 2007, ch. 560, § 2; 2011, ch. 493, §§ 1, 2; 2021, ch. 488, § 62, eff August 1, 2021.

61-03-21.4. Economic analysis process required for certain projects.

The department of water resources shall develop an economic analysis process for water conveyance projects and flood-related projects expected to cost more than one million dollars, and a life cycle analysis process for municipal water supply projects. When the state water commission is considering whether to fund a water conveyance project, flood-related project, or water supply project, the department of water resources shall review the economic analysis or life cycle analysis, and inform the state water commission of the findings from the analysis and review.

Source:

S.L. 2017, ch. 419, § 12, eff August 1, 2017; 2017, ch. 19, § 21, eff August 1, 2017; 2021, ch. 488, § 63, eff August 1, 2021.

61-03-22. Hearing — Appeals from decision of department.

Any person aggrieved by an action or decision of the department under this title has the right to a hearing. The department must receive a request for a hearing within thirty days after the aggrieved person knew or reasonably should have 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.

Source:

S.L. 1981, ch. 628, § 2; 1993, ch. 593, § 2; 2015, ch. 471, § 1, eff August 1, 2015; 2021, ch. 488, § 64, eff August 1, 2021.

61-03-23. Penalties — Civil.

  1. 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 departmentto 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 departmentthrough an administrative hearing under chapter 28-32.
  2. If a civil penalty levied by the department after an administrative hearing is not paid within thirty days after a final determination 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 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 departmentfor enforcement of the order.

Source:

S.L. 1989, ch. 745, § 4; 2013, ch. 480, § 1; 2021, ch. 488, § 65, eff August 1, 2021.

61-03-24. Pending administrative actions and permits.

If an applicant for any permit processed by the departmenthas an unresolved administrative order or complaint under this title, the permit may not be processed until the order is complied with or complaint is resolved. At the discretion of the department, 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.

History. S.L. 2015, ch. 471, § 2, eff August 1, 2015; 2021, ch. 488, § 66, eff August 1, 2021.

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 dam. The emergency action plan and any subsequent updates must be submitted to the departmentfor approval.

History. S.L. 2015, ch. 471, § 3, eff August 1, 2015; 2021, ch. 488, § 67, eff August 1, 2021.

CHAPTER 61-04 Appropriation of Water

61-04-01. Petitions, reports, surveys, and other documents filed with the commission.

Any petitions, applications, surveys, reports, orders, or other documents provided for in this chapter must be filed with the commission in Bismarck, where they must be kept on file under the control of the director of the department of water resources.

Source:

S.L. 1941, ch. 228, § 2; R.C. 1943, § 61-0401; S.L. 1977, ch. 569, § 1; 2019, ch. 508, § 1, eff July 1, 2019; 2021, ch. 488, § 68, eff August 1, 2021.

Cross-References.

Records of state engineer open to public, see N.D.C.C. § 61-03-06.

Waters of the state and public waters, see N.D.C.C. § 61-01-01.

Waters subject to appropriation, see N.D.C.C. § 61-01-01.

Collateral References.

Right of riparian owner to continuation of periodic and seasonal overflows from stream, 20 A.L.R.2d 656.

Law Reviews.

The Public Trust Doctrine in North Dakota, 54 N.D. L. Rev. 565 (1978).

Rights to Ground Water in North Dakota: Trends and Opportunities, 71 N.D. L. Rev. 619 (1995).

For Article: Indian Reserved Water Rights: Impending Conflict or Coming Rapprochement Between the State of North Dakota and North Dakota Indian Tribes, see 85 N.D. L. Rev. 1 (2009).

61-04-01.1. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Adjudicative proceeding” means an appeal under chapter 28-32 of a recommended decision prepared by the director of the department of water resources for a water permit application.
  2. “Assignment” means the change of a water permit from one permitholder to another permitholder.
  3. “Beneficial use” means a use of water for a purpose consistent with the best interests of the people of the state.
  4. “Commission” means the state water commission.
  5. “Conditional water permit” means a water permit that has not been perfected.
  6. “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.
  7. “Fish, wildlife, and other recreational uses” 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.
  8. “Fossil byproduct water” means water obtained as a byproduct of extraction and separation from oil, gas, and other hydrocarbons, from a formation that is both not a potable aquifer at the extraction location and is situated below the deepest potable aquifer by the practically impermeable layer.
  9. “Industrial use” means the use of water for the furtherance of a commercial enterprise wherever located, including manufacturing, mining, or processing.
  10. “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.
  11. “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.
  12. “Livestock use” means the use of water for drinking purposes by herds, flocks, or bands of animals kept for commercial purposes.
  13. “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.
  14. “Party of record” means a person who filed written comments by the date specified under subsection 5 of section 61-04-05.
  15. “Perfected water permit” means a water permit where the water appropriated under a conditional water permit has been applied to a beneficial use and the department of water resources has inspected the works to verify all conditions have been met.
  16. “Permitholder” means the name of the entity holding a water permit.
  17. “Point of diversion” means the tract of land where the waters of the state are withdrawn or diverted.
  18. “Priority date” means the date assigned to an application or water right.
  19. “Rural water system” means a water supply system designed to serve regional needs.
  20. “Water of the state” or “waters of the state” means those waters identified in section 61-01-01.
  21. “Water right” means the right established under this title to appropriate or store waters of the state.

Source:

S.L. 1977, ch. 569, § 2; 1981, ch. 629, § 1; 1989, ch. 748, § 1; 1993, ch. 54, § 106; 1997, ch. 517, § 1; 2003, ch. 551, § 1; 2009, ch. 593, § 1; 2011, ch. 494, § 1; 2015, ch. 472, § 1, eff August 1, 2015; 2019, ch. 508, § 2, eff July 1, 2019; 2021, ch. 488, §§ 69, 70, eff August 1, 2021.

Note.

Section 61-04-01.1 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 70 of Chapter 488, Session Laws 2021, House Bill 1353; and Section 69 of Chapter 488, Session Laws 2021, House Bill 1353.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-04-01.2. Beneficial use requirement.

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.

Source:

S.L. 1977, ch. 569, § 3; 2019, ch. 508, § 3, eff July 1, 2019.

DECISIONS UNDER PRIOR LAW

Reasonable Use.

Riparian owner had right to make reasonable use of stream for operation of mill or factory, and could even cast sewage or waste materials therein, if he did not thereby cause material injury to public or private rights. McDonough v. Russell-Miller Milling Co., 38 N.D. 465, 165 N.W. 504, 1917 N.D. LEXIS 37 (N.D. 1917).

Test of rightfulness of use which one owner was attempting to make of stream was whether or not such use was reasonable under all circumstances of case. McDonough v. Russell-Miller Milling Co., 38 N.D. 465, 165 N.W. 504, 1917 N.D. LEXIS 37 (N.D. 1917).

Law Reviews.

The Nature and Extent of Rights in Water in North Dakota, Robert E. Beck and John C. Hart, 51 N.D. L. Rev. 249 (1975).

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

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 department of water resources unless the construction or taking from the 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 department of water resources of the location and acre-feet [1233.48 cubic meters] capacity of the constructed works, dams, or dugouts. Regardless of proposed use, all water users, except those reusing fossil byproduct water, 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 to clearly establish a priority date, and the department of water resources may waive any fee or hearing for the applications. An applicant for a water permit to irrigate need not be the owner of the land to be irrigated.

Source:

S.L. 1905, ch. 34, § 19; R.C. 1905, § 7622; C.L. 1913, § 8253; R.C. 1943, § 61-0402; S.L. 1953, ch. 342, § 1; 1957, ch. 376, § 1; 1957 Supp., § 61-0402; S.L. 1961, ch. 378, § 1; 1963, ch. 417, § 18; 1965, ch. 447, § 5; 1977, ch. 569, § 4; 1981, ch. 629, § 2; 1983, ch. 678, § 1; 2019, ch. 508, § 4, eff July 1, 2019; 2021, ch. 488, § 71, eff August 1, 2021.

Notes to Decisions

In General.

Under this section, any “constructed works” for the appropriation of water requires a permit from the state engineer unless, both, it is for “domestic or livestock purposes or for fish, wildlife and other recreational uses,” and it is not “capable of retaining more than twelve and one-half acre-feet”. Any dam for any purpose which is “capable of retaining more than twelve and one-half acre-feet” requires authorization. North Dakota State Eng'r v. Schirado, 373 N.W.2d 904, 1985 N.D. LEXIS 395 (N.D. 1985).

State engineer had statutory authority to regulate the size and safety of defendant’s dam to the extent that it was capable of retaining more than twelve and one-half acre-feet of water. However, as it had not been shown that complete removal of the dam was required, judgment ordering the removal of the dam would be vacated and remanded for formulation of a proper judgment to enforce the state engineer’s statutory regulatory authority. North Dakota State Eng'r v. Schirado, 373 N.W.2d 904, 1985 N.D. LEXIS 395 (N.D. 1985).

Because an unauthorized dam and slough on an owner’s land impounded sufficient water to require permits under N.D.C.C. §§ 61-04-02 and 61-16.1-38, and because no permits had been procured, the state engineer had authority under N.D.C.C. § 61-03-21.2 to order the owner to modify the unauthorized dam and to construct a ditch to drain the slough to 1543.5 feet mean sea level. Peterson v. Sando, 2011 ND 206, 806 N.W.2d 172, 2011 N.D. LEXIS 206 (N.D. 2011).

Law Reviews.

For Note: The Future of Quantifying Tribal Water Rights in North Dakota, see 84 N.D. L. Rev. 455 (2008).

For Article: Indian Reserved Water Rights: Impending Conflict or Coming Rapprochement Between the State of North Dakota and North Dakota Indian Tribes, see 85 N.D. L. Rev. 1 (2009).

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

61-04-02.1. Emergency or temporary authorization.

The department of water resources may authorize emergency or temporary use of water for periods not to exceed twelve months if the departmentdetermines the use will not be to the detriment of existing rights. The departmentshall establish by rule a separate procedure for processing applications for emergency or temporary use. Prescriptive and other rights to the use of water may not be acquired by use of water as authorized in this section.

Source:

S.L. 1977, ch. 569, § 5; 1979, ch. 637, § 1; 2021, ch. 488, § 72, eff August 1, 2021.

61-04-02.2 Property interest required to hold a water permit.

A permitholder must have a legal interest in each point of diversion identified on the permit. If the permitholder does not have a legal interest in each point of diversion, the department of water resources shall assign the permit, or portion of the permit, as provided in this chapter to the title owner.

A permitholder must have a legal interest in each irrigated tract of land identified on the permit. If the permitholder does not have a legal interest in each irrigated tract of land, the permitholder may transfer the approved acres to other land, as provided in this chapter.

Source:

S.L. 2019, ch. 508, § 5, eff July 1, 2019; 2021, ch. 488, § 73, eff August 1, 2021.

61-04-03. Water permit application — Contents — Information to accompany.

A permit application to make beneficial use of any waters of the state must be in the form required by the rules established by the department of water resources. The rules must prescribe the form and contents of, and the procedure for filing, the application. The application, along with all other information filed with it, must be retained with the commission after approval or disapproval of the application. The department of water resources may require additional information not provided for in the general rules if the departmentdeems the information necessary.

Source:

S.L. 1905, ch. 34, § 19; R.C. 1905, § 7622; C.L. 1913, § 8253; R.C. 1943, § 61-0403; S.L. 1977, ch. 569, § 6; 2019, ch. 508, § 6, eff July 1, 2019; 2021, ch. 488, § 74, eff August 1, 2021.

61-04-03.1. Limitation on amount of water.

An applicant may not apply for a permit or permits for irrigation which, if approved, would enable a person, at any one time, to hold a conditional water permit or permits for more than seven hundred twenty acre-feet [888106.75 cubic meters] of water that has not been applied to beneficial use. Applications submitted in violation of this section may not be assigned a priority date and must be returned to the applicant by the department of water resources. This section may not apply to water permit applications from the Missouri River or to applications submitted by irrigation districts organized pursuant to this title. For the purposes of this section, “person”, when applied to an individual, means the individual and the individual’s spouse and dependents within the meaning of the Internal Revenue Code [26 U.S.C. 152].

Source:

S.L. 1981, ch. 630, § 1; 2019, ch. 508, § 7, eff July 1, 2019; 2021, ch. 488, § 75, eff August 1, 2021.

61-04-04. Filing and correction of application.

The date of receipt of the application provided for in section 61-04-03 in the commission must be noted on the application. If the application is defective as to form, incomplete, or otherwise unsatisfactory, it must be returned with a statement of the corrections, amendments, or changes required, within thirty days after its receipt, and sixty days must be allowed for refiling. If the application is corrected as required and is refiled within the time allowed, the application, upon being accepted, must take priority as of the date of its original filing. Any corrected application filed after the time allowed must 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 commencement of administrative action by the department of water resources as provided in sections 61-04-05 through 61-04-06.3.

Source:

S.L. 1905, ch. 34, § 20; R.C. 1905, § 7623; C.L. 1913, § 8254; R.C. 1943, § 61-0404; S.L. 1961, ch. 378, § 2; 1977, ch. 569, § 7; 2019, ch. 508, § 8, eff July 1, 2019; 2021, ch. 488, § 76, eff August 1, 2021.

61-04-04.1. Application fees.

The following fees must accompany a conditional water permit application and must be paid by the department of water resources into the resources trust fund of the state treasury:

  1. For municipal or public use $500 2. For irrigation use $500 3. For industrial use of one acre-foot [1233.48 cubic meters] or less $250 4. For industrial use in excess of one acre-foot [1233.48 cubic meters] $1,000 5. For recreation, livestock, or fish and wildlife $100 6. Water permit amendment $100

Click to view

Source:

S.L. 1977, ch. 569, § 8; 1981, ch. 629, § 3; 1989, ch. 748, § 2; 1991. ch. 700, § 1; 2019, ch. 508, § 9, eff July 1, 2019; 2021, ch. 488, § 77, eff August 1, 2021.

Cross-References.

Disposition of fees collected under this section, see N.D.C.C. § 61-03-05.1.

61-04-04.2. Refund of water permit application fees.

The department of water resources may refund a water permit application fee, upon the request of the applicant, if the application is withdrawn by the applicant, and:

  1. The departmenthas not published notice of the application; or
  2. The departmentdetermines other good and sufficient cause exists to refund the application fee.

Source:

S.L. 1995, ch. 590, § 1; 2021, ch. 488, § 78, eff August 1, 2021.

61-04-04.3 Rejection of applications.

If the department of water resources determines a conditional water permit application does not meet this chapter’s requirements or the rules in North Dakota Administrative Code article 89-03, the department shall reject the application and decline to order the publication of notice of application.

Source:

S.L. 2019, ch. 508, § 10, eff July 1, 2019; 2021, ch. 488, § 79, eff August 1, 2021.

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 department of water resources 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:
    1. 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.
    2. 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.
    3. 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 water appropriation site. The department of water resources shall provide a list of all persons who must be notified under this subsection to the applicant.
  3. Give notice of the application by certified mail in the form prescribed by rule to all municipal or public use permitholders within a twelve-mile [19.32-kilometer] radius of the proposed water appropriation site. The department of water resources shall provide a list of all municipal or public use permitholders that must be notified under this subsection to the applicant.
  4. Provide the department of water resources with an affidavit of notice by certified mail within sixty days from the date of the department’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 department 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. If a properly completed affidavit of notice is not submitted within one hundred twenty days, the department shall consider the application withdrawn. Upon receipt of a proper affidavit of notice by certified mail, the department 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.
  5. 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 department of water resources. The notice also must state anyone who files written comments with the department will be mailed the department’s recommended decision on the application. Persons filing written comments will become a party of record to the application. The comment deadline is five p.m. on the first business day thirty days after the first published notice in the official county newspaper as specified in subsection 4.
  6. The applicant shall pay all costs of the publication of notice.

Source:

S.L. 1905, ch. 34, § 21; R.C. 1905, § 7624; C.L. 1913, § 8255; R.C. 1943, § 61-0405; S.L. 1961, ch. 379, § 1; 1969, ch. 542, § 1; 1977, ch. 569, § 9; 1989, ch. 748, § 3; 1993, ch. 596, § 1; 1999, ch. 537, § 1; 2003, ch. 551, § 2; 2011, ch. 494, § 2; 2019, ch. 508, § 11, eff July 1, 2019; 2021, ch. 488, § 80, eff August 1, 2021.

61-04-05.1. Comments — Hearing.

  1. Comments regarding a proposed appropriation must be in writing and filed by the date specified by the department of water resources under subsection 5 of section 61-04-05. The comments must state the name and mailing address of the person filing the comments. Comment letters submitted electronically must state the name and mailing address of the person filing the comments, and must be signed by the submitter to be considered valid and part of the official record.
  2. A person filing written comments also may request an informational hearing on the application by the date specified by the department of water resources under subsection 5 of section 61-04-05. If a request for an informational hearing is made and the department determines an informational hearing is necessary to obtain additional information to evaluate the application or to receive public input, the department shall designate a time and place for the informational hearing and serve a 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 permitholders request the informational hearing to be held locally, the department of water resources shall hold the hearing in the county seat of the county in which the proposed water appropriation site is located.
  4. The department of water resources shall consider all written comments received and testimony presented at an informational hearing, if held, and shall make a recommended decision in writing. The recommended decision must be mailed to the applicant and any party of record and may constitute:
    1. Approval of all or a portion of the application, with the remainder held in abeyance or denied;
    2. Denial of the application; or
    3. Deferral of the application.
  5. Within thirty days of service of the recommended decision, the applicant and any party of record who would be aggrieved by the decision may file additional written comments with the department of water resources 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 department 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 departmentdetermines an adjudicative proceeding is necessary, the departmentshall designate a time and place for the adjudicative proceeding and serve 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.

Source:

S.L. 1999, ch. 537, § 2; 2003, ch. 551, § 3; 2011, ch. 494, § 3; 2019, ch. 508, § 12, eff July 1, 2019; 2021, ch. 488, § 81, eff August 1, 2021.

61-04-06. Criteria for issuance of permit.

  1. The department of water resources shall issue a permit if the departmentfinds 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 departmentshall consider all of the following:
      1. The benefit to the applicant resulting from the proposed appropriation.
      2. The effect of the economic activity resulting from the proposed appropriation.
      3. The effect on fish and game resources and public recreational opportunities.
      4. 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.
      5. Harm to other persons resulting from the proposed appropriation.
      6. The intent and ability of the applicant to complete the appropriation.
  2. Subsection 1 of section 28-32-38 does not apply to water permit application proceedings unless a request for an adjudicative proceeding is made. If an application is approved, the department of water resources shall issue a conditional water permit allowing the applicant to appropriate water. However, the commission, by resolution, may reserve unto itself final approval authority over any specific water permit in excess of five thousand acre-feet [6167409.19 cubic meters].

Source:

S.L. 1905, ch. 34, § 22; R.C. 1905, § 7625; C.L. 1913, § 8256; R.C. 1943, § 61-0406; S.L. 1961, ch. 378, § 3; 1965, ch. 447, § 6; 1977, ch. 569, § 10; 1983, ch. 678, § 2; 1993, ch. 596, § 2; 1999, ch. 537, § 3; 2001, ch. 293, § 34; 2019, ch. 508, § 13, eff July 1, 2019; 2021, ch. 488, § 82, eff August 1, 2021.

Notes to Decisions

Construction with Other Laws.

Where the public service commission (PSC) made its own assessment of the effect of mining and reclamation operations on water quantity and quality and the rights of prior users, applying the same standards as the State Engineer and the additional standards listed under N.D.C.C. § 38-14.1-24(7), the PSC assessment satisfied that section. Coteau Props. Co. v. Oster, 2000 ND 23, 606 N.W.2d 876, 2000 N.D. LEXIS 27 (N.D. 2000).

Law Reviews.

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

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 department of water resources shall adhere to the following order of priority:

  1. Domestic use.
  2. Municipal or public use.
  3. Livestock use.
  4. Irrigation use.
  5. Industrial use.
  6. Fish, wildlife, and other recreational uses.

Source:

S.L. 1977, ch. 569, § 11; 2019, ch. 508, § 14, eff July 1, 2019; 2021, ch. 488, § 83, eff August 1, 2021.

DECISIONS UNDER PRIOR LAW

Condemnable Right.

Right of riparian owner to have natural stream flow over his land was such property as might be taken under power of eminent domain. Volkmann v. Crosby, 120 N.W.2d 18, 1963 N.D. LEXIS 70 (N.D. 1963).

Due Process Property Interest.

Withdrawal of percolating groundwaters for reasonable and beneficial use by an overlying landowner constituted assertion of vested property right which state could not impair by subsequent legislation without compensation. Volkmann v. Crosby, 120 N.W.2d 18, 1963 N.D. LEXIS 70 (N.D. 1963).

Reasonable Use.

One landowner could not take underlying percolating water from a common source and transport it to lands not overlying the common supply if such taking was injurious to other landowners overlying the common supply. Volkmann v. Crosby, 120 N.W.2d 18, 1963 N.D. LEXIS 70 (N.D. 1963).

Doctrine of reasonable use limited right of landowner under former N.D.C.C. § 47-01-13 to use of such amount of water as might be necessary for some useful purpose in connection with land from which it was taken. Volkmann v. Crosby, 120 N.W.2d 18, 1963 N.D. LEXIS 70 (N.D. 1963).

Test of rightfulness of use which one owner was attempting to make of stream was whether or not such use was reasonable under all of circumstances of case. Volkmann v. Crosby, 120 N.W.2d 18, 1963 N.D. LEXIS 70 (N.D. 1963).

Law Reviews.

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

61-04-06.2. Terms of permit — Disposition of fees.

The department of water resources may issue a conditional water permit for less than the amount of water requested. Except for water permits for incorporated municipalities or rural water systems, the department 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 department may require modification of the plans and specifications for the appropriation. The department may issue a permit subject to fees for water use and conditions the department considers necessary to protect the rights of others and the public interest. The fees must be used by the department for planning, research, and administration required to regulate the allocation and appropriation of the waters of the state. Conditions must be related to matters within the department’s jurisdiction.Fees collected under this section must be deposited in the resources trust fund of the state treasury. All conditions attached to any permit issued before July 1, 1975, are binding upon the permitholder.

Source:

S.L. 1977, ch. 569, § 12; 1985, ch. 670, § 1; 1997, ch. 517, § 2; 2015, ch. 472, § 2, eff August 1, 2015; 2019, ch. 508, § 15, eff July 1, 2019; 2021, ch. 56, § 14, eff August 1, 2021; 2021, ch. 488, § 84, eff August 1, 2021.

Note.

Section 61-04-06.2 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 14 of Chapter 56, Session Laws 2021, Senate Bill 2035; and Section 84 of Chapter 488, Session Laws 2021, House Bill 1353.

Cross-References.

Disposition of fees collected under this section, see N.D.C.C. § 61-03-05.1.

61-04-06.3. Priority.

Priority in time gives the superior water right. Priority of a water right acquired under this chapter dates from the filing of an application with the department of water resources, except for water applied to domestic or livestock purposes, or fish, wildlife, and other recreational uses in which case the priority date must 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 acquire reasonably the prior appropriator’s water under the changed conditions.

Source:

S.L. 1977, ch. 569, § 13; 2019, ch. 508, § 16, eff July 1, 2019; 2021, ch. 488, § 85, eff August 1, 2021.

Law Reviews.

For Note: The Future of Quantifying Tribal Water Rights in North Dakota, see 84 N.D. L. Rev. 455 (2008).

For Article: Indian Reserved Water Rights: Impending Conflict or Coming Rapprochement Between the State of North Dakota and North Dakota Indian Tribes, see 85 N.D. L. Rev. 1 (2009).

61-04-07. Rejection of applications — Appeal to district court. [Repealed]

Source:

S.L. 1905, ch. 34, § 23; R.C. 1905, § 7626; C.L. 1913, § 8257; R.C. 1943, § 61-0407; S.L. 1975, ch. 570, § 1; 1977, ch. 569, § 14; Repealed by 2019, ch. 508, § 33, eff July 1, 2019.

61-04-07.1. Approval of applications with conditions. [Repealed]

Repealed by S.L. 1977, ch. 569, § 27.

Note.

For present provisions, see N.D.C.C. § 61-04-06.2.

61-04-07.2 Conditional water permit application denial.

If the department of water resources determines an application or any portion of an application does not meet the criteria prescribed in section 61-04-06 for any reason other than sufficient information or data is lacking to allow for sound decisionmaking of the impacts of the proposed diversion on the prior appropriators, the resource, or the public interest, the application or portion must be denied.

Source:

S.L. 2019, ch. 508, § 17, eff July 1, 2019; 2021, ch. 488, § 86, eff August 1, 2021.

61-04-07.3 Conditional water permit application deferral.

If the department of water resources determines an application or any portion of an application does not meet the criteria prescribed in section 61-04-06 because sufficient information or data is lacking to allow for sound decisionmaking of the impacts of the proposed diversion on the prior appropriators, the resource, or the public interest, the conditional water permit application must be placed in a deferred status. The applicant must be notified by mail the application has been placed in deferred status.

Source:

S.L. 2019, ch. 508, § 18, eff July 1, 2019; 2021, ch. 488, § 87, eff August 1, 2021.

61-04-08. Prosecution of work — State engineer may approve another application upon failure of original applicant to complete — Exception. [Repealed]

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 department of water resources 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 constructed properly and safely, the department may require the necessary changes to be made within a reasonable time. Failure to make the changes within the time prescribed by the department will result in postponement of the permit’s priority date to the date the changes are made to the satisfaction of the department. Any intervening application submitted before the date the changes are made will have the benefit of the postponement of priority. When the works are constructed properly and safely and inspected, the department 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 permitholder.

Source:

S.L. 1905, ch. 34, § 25; R.C. 1905, § 7628; C.L. 1913, § 8259; R.C. 1943, § 61-0409; S.L. 1961, ch. 378, § 4; 1965, ch. 447, § 7; 1975, ch. 570, § 3; 1977, ch. 569, § 15; 1983, ch. 678, § 3; 2015, ch. 472, § 3, eff August 1, 2015; 2019, ch. 508, § 19, eff July 1, 2019; 2021, ch. 488, § 88, eff August 1, 2021.

61-04-10. Certificate of construction issued when works found in satisfactory condition — Contents. [Repealed]

Repealed by S.L. 1965, ch. 447, § 24.

61-04-11. Inspection of works.

If the department of water resources, in the course of the department’s duties, finds any works used for the storage, diversion, or carriage of water are unsafe and a menace to life or property, the department 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 department shall inspect any alleged unsafe works. If the works are found unsafe by the department, the money deposited by the party must be refunded, and the fees for inspection must be paid by the owner of the works. If the owner of the works does not pay the fees within thirty days after the decision of the department, the fees must be a lien against any property of the owner, and the state’s attorney of the county shall initiate a suit to recover the fees from the owner at the request of the department. The department may inspect any works under construction for the storage, diversion, or carriage of water and may require any changes necessary to secure the safety of the works. The fees for the inspection must be a lien on any property of the owner and must be subject to collection as provided in this chapter but neither the United States nor the state of North Dakota nor any government agency may be required to pay such fees.

Source:

S.L. 1905, ch. 34, § 27; R.C. 1905, § 7630; C.L. 1913, § 8261; R.C. 1943, § 61-0411; S.L. 1961, ch. 378, § 5; 2019, ch. 508, § 20, eff July 1, 2019; 2021, ch. 488, § 89, eff August 1, 2021.

Notes to Decisions

In General.

State engineer had statutory authority to regulate the size and safety of defendant’s dam to the extent that it was capable of retaining more than twelve and one-half acre-feet of water. However, as it had not been shown that complete removal of the dam was required, judgment ordering the removal of the dam would be vacated and remanded for formulation of a proper judgment to enforce the state engineer’s statutory regulatory authority. North Dakota State Eng'r v. Schirado, 373 N.W.2d 904, 1985 N.D. LEXIS 395 (N.D. 1985).

61-04-12. Use of unsafe works — Penalty.

Any person using works for the storage, diversion, or carriage of water after an inspection of the works by the department of water resources and receipt of notice from the departmentthat the works are unsafe for the purpose for which the works are used and before the receipt of notice from the department that the department deems the works to have been made safe, is guilty of a class A misdemeanor.

Source:

S.L. 1905, ch. 34, § 28; R.C. 1905, § 7631; C.L. 1913, § 8262; R.C. 1943, § 61-0412; S.L. 1975, ch. 106, § 640; 2021, ch. 488, § 90, eff August 1, 2021.

Cross-References.

Penalties for classified offenses, see N.D.C.C. § 12.1-32-01.

61-04-13. Application of water to beneficial use — Inspection. [Repealed]

Repealed by S.L. 1965, ch. 447, § 24.

61-04-14. Extending time for application to beneficial use.

The department of water resources may extend the time for the application of water to the beneficial use cited in the conditional water permit for good cause shown. When the time has expired, the departmentmay renew and extend the time upon application. However, a conditional water permit, or any portion of the application must be considered forfeited if no request for renewal is received by the department within sixty days after the date the permitholder is informed the period for applying water to the beneficial use cited in the conditional water permit has expired. If a request to extend the time for application to beneficial use for any conditional water permit, or portion of the permit, is denied, the conditional water permit, or portion of the permit, must be considered forfeited. Sections 61-04-23 through 61-04-25 do not apply to this section.

Source:

S.L. 1905, ch. 34, § 30; R.C. 1905, § 7633; C.L. 1913, § 8264; R.C. 1943, § 61-0414; S.L. 1961, ch. 378, § 6; 1965, ch. 447, § 8; 1977, ch. 569, § 16; 1979, ch. 638, § 1; 2019, ch. 508, § 21, eff July 1, 2019; 2021, ch. 488, § 91, eff August 1, 2021.

61-04-15. Assignment of conditional or perfected water permit.

Any conditional or perfected water permit may be assigned only upon approval by the department of water resources. Upon reasonable proof the assignment can be made without detriment to existing rights, the department shall assign the water permit without losing priority of any right previously established. The transfer of title to land in any manner must carry with it all rights to the use of water for irrigation of the land, except any conditional or perfected water permit for irrigation purposes must be assigned in accordance with this section.

Source:

S.L. 1905, ch. 34, § 31; R.C. 1905, § 7634; C.L. 1913, § 8265; R.C. 1943, § 61-0415; S.L. 1963, ch. 417, § 19; 1965, ch. 447, § 9; 1969, ch. 543, § 1; 1977, ch. 569, § 17; 1983, ch. 678, § 4; 2019, ch. 508, § 22, eff July 1, 2019; 2021, ch. 488, § 92, eff August 1, 2021.

Cross-References.

Irrigation district rights, assignment on dissolution of district, see N.D.C.C. § 61-11-13.

61-04-15.1. Change in point of diversion or use. [Repealed]

Source:

S.L. 1977, ch. 569, § 18; 1983, ch. 678, § 5; Repealed by 2019, ch. 508, § 33, eff July 1, 2019.

61-04-15.2 Add a point of diversion.

A permitholder may add a point of diversion to a conditional or perfected permit without affecting the priority date, if approved by the department of water resources. Applications to add a point of diversion must be processed and evaluated in the same manner as a conditional water permit application. The department may approve the additional point of diversion if the proposed addition will not adversely affect the rights of other appropriators.

Source:

S.L. 2019, ch. 508, § 23, eff July 1, 2019; 2021, ch. 488, § 93, eff August 1, 2021.

61-04-15.3 Transfer of approved irrigated acreage.

A permitholder may transfer acres approved for irrigation on a conditional or perfected water permit to any tract of land owned or leased by the permitholder without affecting the priority date, if approved by the department of water resources. The department shall cause the water permit involved to be simultaneously severed and transferred from the land.

Source:

S.L. 2019, ch. 508, § 24, eff July 1, 2019; 2021, ch. 488, § 94, eff August 1, 2021.

61-04-15.4 Change in purpose of use.

A permitholder may change the purpose of use of a conditional or perfected water permit without affecting the priority date, if approved by the department of water resources. Applications for a change in the purpose of use must be processed and evaluated in the same manner as a conditional water permit application. A change in the purpose of use may be authorized only for a superior use as determined by the order of priority in section 61-04-06.1. The department may approve the proposed change if the proposed change will not adversely affect the rights of other appropriators.

Source:

S.L. 2019, ch. 508, § 25, eff July 1, 2019; 2021, ch. 488, § 95, eff August 1, 2021.

61-04-16. Referee or referees appointed in water suits — Duties. [Repealed]

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. [Repealed]

Source:

S.L. 1905, ch. 34, § 35; R.C. 1905, § 7638; C.L. 1913, § 8269; R.C. 1943, § 61-0417; S.L. 1977, ch. 569, § 19; Repealed by 2019, ch. 508, § 33, eff July 1, 2019.

61-04-18. Appropriation of water from minor stream for agricultural use. [Repealed]

Repealed by S.L. 1963, ch. 419, § 7.

61-04-19. Filing of location certificate — Contents. [Repealed]

Repealed by S.L. 1963, ch. 419, § 7.

61-04-20. Approval of state engineer — Rights of claimant — Procedure. [Repealed]

Repealed by S.L. 1963, ch. 419, § 7.

61-04-21. Amount of water allowed. [Repealed]

Repealed by S.L. 1963, ch. 419, § 7.

61-04-22. Prescriptive water right. [Repealed]

Source:

S.L. 1957, ch. 375, § 1; R.C. 1943, 1957 Supp., § 61-0422; S.L. 1963, ch. 419, § 2; 1965, ch. 447, § 10; 1977, ch. 569, § 20; 2001, ch. 564, § 1; Repealed by 2019, ch. 508, § 33, eff July 1, 2019.

61-04-23. Cancellation 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 department of water resources may cancel the water permit or right. 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 reasonably may be necessary for the future water requirements of the municipality or the rural water system. The department of water resources, as often as necessary, shall 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 under the permit or right.

Source:

S.L. 1963, ch. 419, § 3; 1965, ch. 447, § 11; 1969, ch. 544, § 1; 1977, ch. 569, § 21; 1985, ch. 670, § 2; 1993, ch. 597, § 1; 1997, ch. 517, § 3; 2019, ch. 508, § 26, eff July 1, 2019; 2021, ch. 488, § 96, eff August 1, 2021.

61-04-24. Cancellation of water rights — Notice — Contents.

  1. If it appears any water appropriation or portion of an appropriation 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 department of water resources 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 reasonably may be necessary for the future water requirements of the municipality or the rural water system. Any permitholder using water from a common source of supply, any applicant for a permit to use water from a common source of supply, or any interested party may request the department of water resources to conduct a hearing to cancel any unused water rights to the common source of supply. Any decision of the department in denying a request for a hearing may be appealed in accordance with chapter 28-32. Prior to the hearings, the department 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 a time and at a place why the water appropriation or a portion of the appropriation should not be canceled.
  2. 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 water permit on file with 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 of the appropriation, should not be canceled.
  3. The notice must be served personally or sent by 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 water permit on file with 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 the official newspaper in the county in which the point of diversion is located once each week for two consecutive weeks prior to the date of hearing.

Source:

S.L. 1963, ch. 419, § 4; 1977, ch. 569, § 22; 1985, ch. 670, § 3; 1985, ch. 671, § 1; 1997, ch. 517, § 4; 2001, ch. 120, § 1; 2019, ch. 508, § 27, eff July 1, 2019; 2021, ch. 488, § 97, eff August 1, 2021.

61-04-25. Cancellation of water rights — Hearing — Appeal.

At the hearing the recommended decision of the department of water resources is prima facie evidence for cancellation of the water permit or portion of the permit. If no one appears at the hearing, the water permit or portion must be canceled. If interested parties appear and contest the cancellation, the department shall hear the evidence and, if it appears the water has not been put to a beneficial use, or, having been put to a beneficial use at one time, has ceased to be used for the 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 permit, or a portion of the permit, must be 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 reasonably may 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 department in accordance with chapter 28-32.

Source:

S.L. 1963, ch. 419, § 5; 1965, ch. 447, § 12; 1985, ch. 670, § 4; 1997, ch. 517, § 5; 2019, ch. 508, § 28, eff July 1, 2019; 2021, ch. 488, § 98, eff August 1, 2021.

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. The order canceling a water right or portion of a water right must be filed by the department of water resources with the county recorder where the affected land is located and recorded as any other instrument affecting the title to real property without acknowledgment or further proof. Any document filed under this section must be listed in the index of the property affected as provided in section 11-18-07.

Source:

S.L. 1963, ch. 419, § 6; 1977, ch. 569, § 23; 2001, ch. 120, § 1; 2019, ch. 508, § 29, eff July 1, 2019; 2021, ch. 488, § 99, eff August 1, 2021.

61-04-27. Information filed with department of water resources — Installation of measuring devices.

By March thirty-first of each year, permitholders shall file with the department of water resources, on forms supplied by the department, water use and other information as the department requires. The department also may require permitholders to install measuring devices conforming to the department’s specifications, at all points specified by the department.

Source:

S.L. 1963, ch. 417, § 20; 1989, ch. 748, § 4; 2013, ch. 480, § 2; 2019, ch. 508, § 30, eff July 1, 2019; 2021, ch. 488, § 100, eff August 1, 2021.

61-04-28. Correction of application or water right by department of water resources.

Upon proof satisfactory to the department of water resources that a water permit application or water permit contains a nonmaterial error, the department, by written notice to the holder of the affected water permit or application, may correct the error without publication of notice.

Source:

S.L. 1965, ch. 447, § 13; 1991, ch. 701, § 1; 2019, ch. 508, § 31, eff July 1, 2019; 2021, ch. 488, § 101, eff August 1, 2021.

61-04-29. Enforcement.

The department of water resources 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, enforce an order of the department or the commission, or otherwise administer the provisions of this chapter. Notwithstanding any other provision of law, the department of water resources may issue administrative orders requiring the immediate cessation of water use when the department has a reasonable belief the use is unauthorized or continued use will damage the rights of prior appropriators.

Source:

S.L. 1977, ch. 569, § 24; 1989, ch. 748, § 5; 2019, ch. 508, § 32, eff July 1, 2019; 2021, ch. 488, § 102, eff August 1, 2021.

Notes to Decisions

In General.

State engineer had statutory authority to regulate the size and safety of defendant’s dam to the extent that it was capable of retaining more than twelve and one-half acre-feet of water. However, as it had not been shown that complete removal of the dam was required, judgment ordering the removal of the dam would be vacated and remanded for formulation of a proper judgment to enforce the state engineer’s statutory regulatory authority. North Dakota State Eng'r v. Schirado, 373 N.W.2d 904, 1985 N.D. LEXIS 395 (N.D. 1985).

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 department of water resources; 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 department of water resources shall inform the tax commissioner of violations of industrial use permits.

Source:

S.L. 1977, ch. 569, § 25; 1989, ch. 748, § 6; 2013, ch. 480, § 3; 2015, ch. 472, § 4, eff August 1, 2015; 2021, ch. 488, § 103, eff August 1, 2021.

Cross-References.

Criminal penalty for violating rule or regulation of state engineer, see N.D.C.C. § 61-01-25.

Penalties for classified offenses, see N.D.C.C. § 12.1-32-01.

61-04-31. Reservation of waters — Public hearing — Notice.

  1. Whenever it appears necessary to the department of water resources, or when directed by the commission, the department may reserve and set aside waters by regulation for beneficial use in the future.
    1. Before the adoption of a regulation under this section, the department 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.
    2. 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 department of water resources may withdraw various waters of the state from additional appropriations until sufficient data or information is available. Water permit applications pending from these sources will be placed in a deferred status.

Source:

S.L. 1977, ch. 569, § 26; 2015, ch. 472, § 4, eff August 1, 2015; 2021, ch. 488, § 104, eff August 1, 2021.

Cross-References.

Criminal penalty for violation of rule or regulation of state engineer, see N.D.C.C. § 61-01-25.

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.

Source:

S.L. 1987, ch. 434, § 2.

CHAPTER 61-04.1 Weather Modification

61-04.1-01. Extended state ownership of water sovereignty over moisture.

In order that the state may share to the fullest extent in the benefits already gained through fundamental research and investigation on new and improved means for predicting, influencing, and controlling the weather, for the best interest, general welfare, health, and safety of all the people of the state, and to provide proper safeguards in applying the measures for use in connection therewith in order to protect life and property, it is deemed necessary and hereby declared that the state of North Dakota claims its sovereign right to use the moisture contained in the clouds and atmosphere within the state boundaries. All water derived as a result of weather modification operations shall be considered a part of North Dakota’s basic water supply and all statutes, rules, and regulations applying to natural precipitation shall also apply to precipitation resulting from cloud seeding.

Source:

S.L. 1981, ch. 631, § 1.

61-04.1-02. Declaration of policy and purpose.

The legislative assembly finds that weather modification affects the public health, safety, and welfare, and that, properly conducted, weather modification operations can improve water quality and quantity, reduce losses from weather hazards, and provide economic benefits for the people of the state. Therefore, in the public interest, weather modification shall be subject to regulation and control, and research and development shall be encouraged. To minimize possible adverse effects, weather modification operations shall be carried on with proper safeguards, and accurate information shall be recorded concerning such operations and the benefits obtained therefrom by the people of the state.

Source:

S.L. 1981, ch. 631, § 2.

61-04.1-03. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the North Dakota atmospheric resource board which, in the exercise of the powers granted under this chapter, has all of the powers of an administrative agency as defined in chapter 28-32.
  2. “Controller” refers to any licensee duly authorized in this state to engage in weather modification operations.
  3. “Geographical region” means a geographical area with a contiguous boundary that may enclose a portion of any county or counties.
  4. “Hail suppression” refers to the activation of any process that will reduce, modify, suppress, eliminate, or soften hail formed in clouds or storms.
  5. “Increasing precipitation” refers to the activation of any process that will actually result in greater amounts of moisture reaching the ground in any area from a cloud or cloud system than would have occurred naturally.
  6. “Initiating precipitation” refers to the process of causing precipitation from clouds which could not otherwise have occurred naturally or inducing precipitation significantly earlier than would have occurred naturally.
  7. “Operation” means the performance of any weather modification activity undertaken for the purpose of producing or attempting to produce any form of modifying effect upon the weather within a limited geographical area or within a limited period of time.
  8. “Research and development” means exploration, field experimentation, and extension of investigative findings and theories of a scientific or technical nature into practical application for experimental and demonstration purposes, including the experimental production of models, devices, equipment, materials, and processes.
  9. “Weather modification” means and extends to the control, alteration, and amelioration of weather elements, including man-caused changes in the natural precipitation process, hail suppression or modification, and alteration of other weather phenomena, including clouds, temperature, wind direction, and velocity, and the initiating, increasing, decreasing, and otherwise modifying by artificial methods of precipitation in the form of rain, snow, hail, mist, or fog through cloud seeding, electrification, or by other means to provide immediate practical benefits.
  10. “Weather modification authority” means the governing body created by a board of county commissioners under section 61-04.1-22.1, 61-04.1-23, 61-04.1-27, 61-04.1-29, or 61-04.1-31.

Source:

S.L. 1981, ch. 631, § 3; 1999, ch. 538, § 1.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-04.1-03.1. Atmospheric resource board. [Repealed]

Repealed by S.L. 1999, ch. 538, § 9.

61-04.1-04. North Dakota atmospheric resource board created — Membership.

  1. The North Dakota atmospheric resource board is a division of the state water commission. The board is composed of the director of the state aeronautics commission, a representative of the department of environmental quality, the director of the department of water resources, and one additional board member from each of seven districts established by section 61-04.1-05. The governor shall appoint one board member for each of the seven districts from a list of three candidates given to the governor by weather modification authorities in each district:
    1. When the term of office of any board member from any district is about to expire.
    2. When a vacancy has occurred, or is about to occur, in the term of office of a board member from any district for any reason other than expiration of term of office.
  2. Beginning on July 1, 1983, the term of office for the board must be arranged so no fewer than three nor more than four terms expire on the first day of July of each odd-numbered year. Board members from each district shall serve for a four-year term of office except in the event the governor appoints a member for an unexpired term, in which case the member shall serve only for the unexpired portion of the term. If any district fails to furnish a list to the governor, or if there are no weather modification authorities under this chapter within a district, the governor shall appoint a board member of the governor’s choice residing within the district.

Source:

S.L. 1981, ch. 631, § 4; 1995, ch. 243, § 2; 2017, ch. 199, § 65, eff April 29, 2019; 2021, ch. 488, § 105, eff August 1, 2021.

61-04.1-05. Board districts created.

Members of the board shall be appointed from districts containing the following counties:

District I - Burke, Divide, McKenzie, Mountrail, and Williams. District II - Bottineau, McHenry, McLean, Renville, Sheridan, and Ward. District III - Benson, Cavalier, Eddy, Foster, Griggs, Nelson, Pierce, Ramsey, Rolette, Steele, Towner, and Wells. District IV - Cass, Grand Forks, Pembina, Richland, Traill, and Walsh. District V - Barnes, Dickey, Kidder, LaMoure, Logan, McIntosh, Ransom, Sargent, and Stutsman. District VI - Burleigh, Emmons, Grant, Mercer, Morton, Oliver, and Sioux. District VII - Adams, Billings, Bowman, Dunn, Golden Valley, Hettinger, Slope, and Stark.

Click to view

Source:

S.L. 1981, ch. 631, § 5.

61-04.1-06. Direction and supervision by state water commission — Independent functions retained by board.

The powers, functions, and duties of the board shall be administered under the direction and supervision of the state water commission. The board shall retain the quasi-judicial, quasi-legislative, advisory, budgetary, rulemaking, and other functions vested in it, which shall be exercised in accordance with policy and guidelines for weather modification activities as established by the commission.

Source:

S.L. 1981, ch. 631, § 6; 1983, ch. 679, § 1.

61-04.1-07. Board officers — Compensation.

All members of the board, with the exception of the chairman, are voting members. The board shall elect annually from its membership a chairman, vice chairman, and secretary. A majority of the members constitute a quorum for the purpose of conducting the business of the board. Board members who are not full-time salaried employees of this state are entitled to receive compensation per day in the amount provided for members of the legislative management under section 54-35-10 and must be reimbursed for their mileage and expenses in the amounts provided by sections 44-08-04 and 54-06-09. All other members of the board must be reimbursed for necessary travel and other expenses incurred in the performance of the business of the board in the amounts provided in sections 44-08-04 and 54-06-09.

Source:

S.L. 1981, ch. 631, § 7; 1997, ch. 432, § 32; 2011, ch. 491, § 2.

61-04.1-08. Powers and duties of board.

The board has the following powers and duties:

  1. The board shall appoint an executive director to serve at the board’s discretion and to perform duties assigned by the board.
  2. The board shall authorize the employment of staff the board deems necessary to carry out the provisions of this chapter. The executive director shall hire the staff, subject to the approval of the board.
  3. The board shall adopt rules concerning qualifications, procedures, and conditions for issuance, revocation, suspension, and modification of licenses and permits; standards and instructions governing weather modification operations, including monitoring and evaluation, recordkeeping, and reporting, and the board shall establish procedures and forms for this recordkeeping and reporting. The board may adopt all other rules necessary to the administration of this chapter. The provisions of chapter 28-32 apply to this chapter and rules of the board must be published in the North Dakota Administrative Code.
  4. The board may contract with any person to carry out weather modification operations and, in connection with regulated weather modification operations in a county or geographical region, shall carry on monitoring and evaluation activities.
  5. The board may order any person who is conducting weather modification operations in violation of this chapter or any rules adopted to implement this chapter, to cease and desist from those operations and the order is enforceable in any court of competent jurisdiction within this state.
  6. The board may cooperate and contract with any person engaged in activities similar to the work of the board and may make contracts and agreements to carry out programs consistent with the purpose and intent of this chapter. The board may request and accept any grants of funds or services from any person and expend these funds or use these services to carry out this chapter.
  7. The board shall monitor the current state of knowledge regarding the magnitude and impacts of possible regional and global climatic changes and shall provide information to other state agencies that may benefit from this knowledge.
  8. The board shall administer and enforce the provisions of this chapter and do all things reasonably necessary to effectuate the purposes of this chapter.
  9. The board may plan and study a hail suppression pilot program that would provide urban and rural hail suppression operations statewide or to any portion of the state.

Source:

S.L. 1981, ch. 631, § 8; 1993, ch. 54, § 106; 1993, ch. 598, § 1; 1999, ch. 538, § 2.

61-04.1-09. Board to establish research and development program — Hail suppression pilot program.

  1. The board shall establish a program of weather modification research and development in this state. The board shall supervise and coordinate all research and development activities in the state or research and development activities outside of the state participated in or conducted by any state institution or state or county agency.
  2. If the board plans and studies a hail suppression pilot program, the board may conduct a planning phase that includes studying the impact on the environment, providing public education, and formulating an operations plan.

Source:

S.L. 1981, ch. 631, § 9; 1999, ch. 538, § 3.

61-04.1-10. Biennial report.

The board may prepare and transmit a biennial report to the governor in accordance with sections 54-06-03 and 54-06-04. If submitted, the report must describe the research and development activities conducted during the biennium, and the outcome thereof, and other related work and activities.

Source:

S.L. 1981, ch. 631, § 10; 1995, ch. 350, § 54.

61-04.1-11. License and permit required.

Except as provided in section 61-04.1-12, no person may engage in weather modification activities without both a professional weather modification license issued under section 61-04.1-14 and a weather modification permit issued under section 61-04.1-16. Licenses shall expire on December thirty-first of the year of issuance.

Source:

S.L. 1981, ch. 631, § 11.

61-04.1-12. Exemptions.

The board may provide by rule for exemption of the following activities from the license and permit requirements of section 61-04.1-11:

  1. Research and development conducted by the state, political subdivisions of the state, colleges and universities of the state, agencies of the federal government, or bona fide research corporations.
  2. Weather modification operations of an emergency nature taken against fire, frost, or fog.

Exempted activities shall be conducted so as not to unduly interfere with weather modification operations conducted under a permit issued in accordance with this chapter.

Source:

S.L. 1981, ch. 631, § 12.

61-04.1-13. Operator deemed to be doing business within state — Resident agent.

A person shall be deemed doing business within this state when engaged in weather modification operations within the boundaries of this state, and shall, if not already qualified to do business within this state under chapter 10-19.1, prior to conducting such operations, file with the secretary of state an authorization designating an agent for the service of process.

Source:

S.L. 1981, ch. 631, § 13; 1999, ch. 50, § 75.

61-04.1-14. Issuance of license — Fee.

The board shall provide, by rule, the procedure and criteria for the issuance of a license. The board, in accordance with its rules, shall issue a weather modification license to each applicant who:

  1. Pays a license fee of fifty dollars.
  2. Demonstrates competence to engage in weather modification operations, to the satisfaction of the board.
  3. Designates an agent for the service of process pursuant to section 61-04.1-13 or chapter 10-19.1.

Each license issued by the board shall be nontransferable and shall expire on December thirty-first of the year of issuance. A license shall be revocable for cause at any time prior to such date if, after holding a hearing upon due notice, the board shall determine that cause for revocation exists. License fees collected by the board shall be paid into the general fund in the state treasury.

Source:

S.L. 1981, ch. 631, § 14; 1999, ch. 50, § 76.

61-04.1-15. Revocation or suspension of license.

The board may suspend or revoke a license for any of the following reasons:

  1. Incompetency.
  2. Dishonest practice.
  3. False or fraudulent representations made in obtaining a license or permit under this chapter.
  4. Failure to comply with any provisions of this chapter or any rules adopted by the board pursuant to this chapter.

Source:

S.L. 1981, ch. 631, § 15.

61-04.1-16. Permit required — Issuance of permit — Fee.

  1. A weather modification permit shall be required for each geographical area, as set out in the operational plan required by subdivision b, in which a person intends to conduct weather modification operations. Each permit issued by the board shall expire on December thirty-first of the year of issuance. A person applying for a weather modification operational permit shall file an application with the board, in such form as the board shall prescribe, which application shall be accompanied by an application fee of twenty-five dollars and contain such information as the board, by rule, may require, and in addition, each applicant for a permit shall:
    1. Furnish proof of financial responsibility as provided by section 61-04.1-19.
    2. Set forth a complete operational plan for the proposed operation which shall include a specific statement of its nature and object, a map of the proposed operating area which specifies the primary target area for the proposed operation and shows the area that is reasonably expected to be affected by such operation, a statement of the approximate time during which the operation is to be conducted, a list of the materials and methods to be used in conducting the operation, and such other detailed information as may be needed to describe the operation.
  2. The board may issue the permit if it determines that:
    1. The applicant holds a valid weather modification license issued under this chapter.
    2. The applicant has furnished satisfactory proof of financial responsibility in accordance with section 61-04.1-19.
    3. The applicant has paid the required application fee.
    4. The operation:
      1. Is reasonably conceived to improve water quantity or quality, reduce loss from weather hazards, provide economic benefits for the people of this state, advance scientific knowledge, or otherwise carry out the purposes of this chapter.
      2. Is designed to include adequate safeguards to minimize or avoid possible damage to the public health, safety, welfare, or the environment.
      3. Will not adversely affect another operation for which a permit has been issued.
    5. The applicant has North Dakota workforce safety and insurance coverage for all employees working in this state.
    6. The applicant has furnished a performance bond as required by section 61-04.1-34.
    7. The applicant has complied with such other requirements for the issuance of permits as may be required by the rules and regulations of the board.
    8. The applicant has furnished a bid bond in accordance with section 61-04.1-35.
    9. The applicant has registered, with the North Dakota aeronautics commission, any aircraft intended to be used in connection with the operation.
  3. The board shall issue only one permit at a time for operations in any geographical area if two or more operations conducted in such an area according to permit limitations might adversely interfere with one another.
  4. All permit fees collected by the board shall be paid into the general fund of the state treasury.

To carry out the objectives and purposes of this chapter, the board may condition and limit permits as to primary target areas, time of the operation, materials, equipment, and methods to be used in conducting the operation, emergency shutdown procedure, emergency assistance, and such other operational requirements as may be established by the board.

Source:

S.L. 1981, ch. 631, § 16; 1989, ch. 69, § 69; 2003, ch. 561, § 3; 2015, ch. 472, § 5, eff August 1, 2015.

61-04.1-17. Hearings.

The board shall give public notice, in the official county newspaper or newspapers in the area of the state reasonably expected to be affected by operations conducted under a permit, that it is considering an application for such permit, and, if objection to the issuance of the permit is received by the board within twenty days, the board may hold a public hearing for the purpose of obtaining information from the public concerning the effects of issuing the permit. The board may also hold such hearings upon its own motion.

Source:

S.L. 1981, ch. 631, § 17.

61-04.1-18. Revocation, suspension, or modification of permit.

The board may suspend or revoke a permit if it appears that the permittee no longer has the qualifications necessary for the issuance of an original permit or has violated any provision of this chapter, or any of the rules adopted under it.

The board may revise the conditions and limits of a permit if:

  1. The permittee is given notice and a reasonable opportunity for a hearing, to be held in accordance with chapter 28-32.
  2. It appears to the board that a modification of the conditions and limits of a permit is necessary to protect the public’s health, safety, welfare, or the environment.

If it appears to the board that an emergency situation exists or is impending which could endanger the public’s health, safety, welfare, or the environment, the board may, without prior notice or hearing, immediately modify the conditions or limits of a permit, or order temporary suspension of a permit. The issuance of such an order shall include notice of a hearing to be held within ten days thereafter on the question of permanently modifying the conditions and limits or continuing the suspension of the permit. Failure to comply with an order temporarily suspending an operation or modifying the conditions and limits of a permit shall be grounds for immediate revocation of the license and permit of the person controlling or engaged in the operation.

Source:

S.L. 1981, ch. 631, § 18.

61-04.1-19. Proof of financial responsibility.

Proof of financial responsibility is made by showing to the satisfaction of the board that the permittee has the ability to respond in damages to liability which might reasonably result from the operation for which the permit is sought. Such proof of financial responsibility may be shown by:

  1. Presentation to the board of proof of a prepaid noncancelable insurance policy against such liability, in an amount approved by the board.
  2. Filing with the board a corporate surety bond, cash, or negotiable securities in an amount approved by the board.

Source:

S.L. 1981, ch. 631, § 19.

61-04.1-20. Board may create operating districts — Representation of noncontracting counties.

The board may place any county or geographical region for which a person contracts with the state for weather modification operations in any operational district the board determines necessary to best provide that county or geographical region with the benefits of weather modification. In determining the boundaries of an operating district, the board shall consider the patterns of crops within the state, climatic patterns, and the limitations of aircraft and other technical equipment. The board may assign any county that has not created a weather modification authority under this chapter to an operating district solely for the purpose of representation on the operations committee of that district.

Source:

S.L. 1981, ch. 631, § 20; 1999, ch. 538, § 4.

61-04.1-21. District operations advisory committees created — Duties.

  1. There must be a district operations advisory committee in each operations district created in accordance with section 61-04.1-20. Each committee must be composed of one commissioner of the weather modification authority, if a weather modification authority exists, from each county within the district; a representative of each person contracting for a geographical region assigned to the district; and one member of the board of county commissioners from each county assigned to the district. Each advisory committee, upon majority vote, with the concurrence of the board, shall adopt rules and bylaws necessary to govern that committee’s procedures and meetings. Each committee shall evaluate weather modification operations within that committee’s district and make recommendations and proposals to the board concerning these operations.
  2. The weather modification authority of any county authorized to contract for weather modification operations under this chapter which is not assigned to an operations district shall assume the functions of the district operations committee and may exercise the powers and duties assigned to the operations committees by this chapter and by the rules of the board.

Source:

S.L. 1981, ch. 631, § 21; 1999, ch. 538, § 5.

61-04.1-22. Weather modification authority may suspend operations.

Other provisions of this chapter notwithstanding, the weather modification authority in any county authorized to contract for weather modification operations under this chapter may suspend the county and state weather modification operation within that county.

Source:

S.L. 1981, ch. 631, § 22.

61-04.1-22.1. Temporary weather modification authority.

The board of county commissioners of any county that has no weather modification authority may create a temporary weather modification authority by setting a time and place for a public hearing, publishing at least ten days before the hearing notice of the hearing in the official newspaper of the county, and after the public hearing, approving establishment of the authority by majority vote. Upon approval, the board of county commissioners shall designate a water resource district to serve as the temporary weather modification authority. The designated district has all the powers granted to a weather modification authority under sections 61-04.1-23 through 61-04.1-32.

A temporary weather modification authority created under this section may conduct weather modification operations within the county for up to four years from the date of the creation of the temporary authority. To continue operating beyond the four-year period, the temporary authority must be made permanent in accordance with sections 61-04.1-23 through 61-04.1-32.

Source:

S.L. 1993, ch. 599, § 1.

61-04.1-23. Weather modification authority created by petition.

A weather modification authority shall be created by resolution and five commissioners appointed thereto for ten-year terms of office, by the board of county commissioners. A board of county commissioners shall not adopt a resolution creating an authority until it has received a valid petition signed by at least fifty-one percent of the qualified electors of a county, as determined by the vote cast for the office of governor at the last preceding general election. The board of county commissioners shall appoint five residents of the county as weather modification authority commissioners from those names set forth in the petition and designated by the petitioners to be appointed weather modification authority commissioners. In the event any one of the five candidates named in the petition to be appointed weather modification authority commissioner is unable or refuses for any reason to accept appointment as commissioner, or is disqualified by not meeting residence requirements, as a qualified elector in the county, the board of county commissioners shall name its own appointee for a ten-year term of office in place of any disqualified candidate selected by the petitioners. If any weather modification authority commissioner submits a resignation in writing to the board of county commissioners or becomes unable or disqualified for any reason, after accepting office, the board of county commissioners shall name its appointee as a commissioner to the weather modification authority. All vacancies occurring otherwise than by expiration of term of office shall be filled for the unexpired term.

Any weather modification authority created pursuant to this section shall expire ten years after the date of the initial appointment of the commissioners thereto. Any unexpended funds remaining in the name of the weather modification authority, after all proper bills and expenses have been paid, shall be transferred into the county general fund by the officers of the weather modification authority on or before the ten-year termination date provided by this section. However, all unexpended funds remaining in the name of the weather modification authority, after all proper bills and expenses have been paid, shall remain in the name of the weather modification authority if the board of county commissioners of such county by resolution creates a weather modification authority and all its powers in accordance with section 61-04.1-27.

Nothing in this section shall prevent continuation or reinstatement of a weather modification authority, provided the authority is renewed for another ten years by petition of the qualified electors in the same manner as the initial weather modification authority was created by petition of qualified electors as provided for in this chapter.

In the event more than one petition is filed with the board of county commissioners on or about the same time, the petition with the highest percentage of the qualified electors of the county voting for the office of governor at the last preceding general election shall be selected by the board of county commissioners. However, the petition with the highest percentage must have the signatures of at least forty percent of the qualified electors in the county and the sum total of all qualified electors signing all petitions filed must equal at least sixty percent of the qualified electors in the county. In no case shall the name of the same qualified elector appear on two or more petitions, but in such event, the name shall be stricken from both petitions.

Source:

S.L. 1981, ch. 631, § 23; 1985, ch. 235, § 120.

61-04.1-24. Petition contents.

The petition for the creation of a weather modification authority and for appointment of commissioners shall contain:

  1. A title with the heading: “Petition for Creation of (insert name of county) Weather Modification Authority”.
  2. The following paragraph: We, the undersigned qualified electors of (name of county), state of North Dakota, by this initiated petition request that the (name of county) board of county commissioners of said county create by resolution a (name of county) weather modification authority and appoint the following five qualified electors of the county to a ten-year term of office as commissioners for the (name of county) weather modification authority:
  3. The following paragraph: We, the undersigned qualified electors of the (name of county), state of North Dakota, are notified hereby that the creation of the (name of county) weather modification authority and the appointment of its commissioners by the (name of county) board of county commissioners will grant unto the authority by law the power to certify to the board of county commissioners a mill levy tax not to exceed seven mills upon the taxable valuation of property in said county for a weather modification fund, which tax may be levied in excess of the mill levy limit fixed by law for taxes for general county purposes and that such fund shall be used for weather modification activities in conjunction with the state of North Dakota. We, the undersigned, understand that the authority requested in this petition expires ten years after the creation of the weather modification authority, except that the board of county commissioners may by resolution create a weather modification authority and all its powers, including the power to certify a tax levy as provided by section 61-04.1-26, for five-year periods in accordance with section 61-04.1-27.
  4. A heading: “Committee for Petitioners”, followed by this statement: The following qualified electors of (name of county), state of North Dakota, are authorized to represent and act for us, and shall constitute the “Committee for the Petitioners” in the matter of this petition and all acts subsequent thereto.
  5. Petition details: All signatures to such petition shall be numbered and dated by month, day, and year. The name shall be written with residence address and post-office address, including the county of residence followed by state of North Dakota.
  6. An affidavit to be attached to each petition and sworn to under oath before a notary public by the person circulating each petition attesting to the fact that the person circulated the petition and that each of the signatures to said petition is the genuine signature of the person whose name it purports to be, and that each such person is a qualified elector in the county in which the petition was circulated.
  7. The petition must state the mills to be levied by the county for the purposes of this chapter.

(Here insert the name and address of each proposed commissioner for the (name of county) weather modification authority.)

Source:

S.L. 1981, ch. 631, § 24; 1983, ch. 593, § 84; 1983, ch. 679, § 2; 1985, ch. 235, § 121; 1987, ch. 53, § 5.

61-04.1-25. Commissioners — Compensation — Meetings — Officers.

The appointing authority shall establish the rate of compensation for commissioners of a weather modification authority and actual expenses incurred by commissioners may be reimbursed at the official reimbursement rates of the appointing authority. Each commissioner shall hold office until a successor has been appointed and has qualified. The certificates of appointment shall be filed with the weather modification authority.

The powers of each weather modification authority shall be vested in the commissioners thereof. A majority of the commissioners of an authority constitutes a quorum for the purpose of conducting the business of the authority and exercising its powers and for all other purposes. Although a majority of the commissioners constitutes a quorum, action may not be taken by the authority except by an affirmative vote of not less than a majority of all the commissioners.

A chairman, vice chairman, and treasurer shall be elected from among the commissioners. A weather modification authority may employ an executive director, secretary, technical experts, and such other officers, agents, and employees, permanent and temporary, as it may require, and shall determine their qualifications, duties, and compensation. For such legal services as it may require, an authority may call upon the state’s attorney of the county. An authority may delegate to one or more of its agents or employees such powers or duties as it may deem proper.

Minutes shall be kept by the secretary of official meetings and shall include all official business such as contracts authorized and all authorizations for payment of weather modification authority funds to persons, organizations, companies, corporations, and limited liability companies. All disbursements shall be approved by a majority of all the commissioners of an authority. Disbursements authorized by the authority for the payment of employee salaries, bills, contracts, services, fees, expenses, and all other obligations shall be made by check signed by the chairman and the treasurer of the authority. Official policies shall also be entered into the minutes. An annual report shall be compiled with complete disclosure of funds expended for contracts, services, fees, salaries, and all other reimbursements, a copy of which shall be filed with the county auditor. The annual report shall be presented at a public meeting called for such purpose.

Source:

S.L. 1981, ch. 631, § 25; 1993, ch. 54, § 106; 2013, ch. 93, § 16.

61-04.1-26. Funding for support of weather modification authority.

The weather modification authority may request annually that the board of county commissioners provide funding from revenues derived from its general fund levy for support of the authority and to provide weather modification services. In the year for which the levy is sought, the weather modification authority seeking approval of a property tax levy under this chapter must file with the county auditor, at a time and in a format prescribed by the county auditor, a financial report for the preceding calendar year showing the ending balances of each fund held by the authority during that year. The funding under this section approved by the board of county commissioners must be deposited in the weather modification fund and shall be used only for weather modification activities in conjunction with the state of North Dakota.

Source:

S.L. 1981, ch. 631, § 26; 1983, ch. 593, § 85; 1983, ch. 679, § 3; 1987, ch. 53, § 6; 1999, ch. 538, § 6; 2015, ch. 88, § 21, eff January 1, 2016; 2015, ch. 92, § 22, eff January 1, 2016; 2015, ch. 439, § 101, eff January 1, 2015.

61-04.1-27. Creation of weather modification authority and its powers by resolution.

When a weather modification authority is about to expire, the board of county commissioners of any such county may by resolution authorize the creation of such weather modification authority and all its powers, including the power to certify a tax levy as provided by section 61-04.1-26, for additional five-year periods; provided, the resolution authorizing the creation of such weather modification authority is adopted by the board of county commissioners before the expiration date prescribed in the preceding resolution for its termination. Upon passing such resolution for the creation of the authority, the board of county commissioners shall appoint five weather modification authority commissioners to five-year terms of office, subsequently filling vacancies in the manner prescribed by section 61-04.1-23. The board of county commissioners may remove any weather modification commissioner from office whenever it appears, by competent evidence and after hearing, that the commissioner has been guilty of misconduct, malfeasance, crime in office, neglect of duty in office, or of habitual drunkenness or gross incompetency.

Source:

S.L. 1981, ch. 631, § 27.

61-04.1-28. Procedure for abolishment of weather modification authority and all its powers by recall initiated petition.

After fifty-one percent of the qualified electors of a county, as determined by the vote cast for the office of governor at the last preceding gubernatorial election, shall petition the board of county commissioners of their county to recall the commissioners of a weather modification authority as created by section 61-04.1-23 and to abolish the county weather modification authority, the board of county commissioners shall adopt a resolution recalling all commissioners of such weather modification authority and abolishing their appointed offices and the weather modification authority, until such time as a weather modification authority is created by petition in accordance with section 61-04.1-23. Before adopting such a resolution, the county commissioners must find that the petition meets the requirements as to the number of qualified electors as required in this chapter. If the board of county commissioners adopts a resolution recalling all commissioners of a weather modification authority and abolishing the authority, all unexpended funds remaining in the name of the authority, after all proper bills and expenses have been paid, shall be transferred to the county general fund by the weather modification authority commissioners on the effective date of the resolution. In the event there are outstanding valid bills unpaid after that date, the board of county commissioners is hereby authorized to pay such obligations from moneys in the county general fund. A recall petition shall have a title with the heading: “Recall Petition for the Abolishment of (insert name of county) Weather Modification Authority”. The recall petition shall incorporate a paragraph stating its purpose in clear language and shall comply with all requirements prescribed in subsections 4, 5, and 6 of section 61-04.1-24, relating to petition contents, committee for petitioners, petition details, affidavits, and persons circulating such petitions.

Source:

S.L. 1981, ch. 631, § 28.

61-04.1-29. Creation of weather modification authority by election.

When a petition signed by not less than twenty percent of the qualified electors of the county, as determined by the vote cast for the office of governor at the last preceding gubernatorial election, requesting an election upon the establishment of a weather modification authority is presented to the board of county commissioners, not later than forty-five days prior to the next countywide election, the board of county commissioners shall submit the question to the qualified electors of the county at the next countywide election. Upon approval by a majority of the votes cast on the question, the board of county commissioners shall, by resolution, establish a weather modification authority as described in section 61-04.1-23 with all powers set out in this chapter, including the power to certify a tax levy as provided by section 61-04.1-26.

Source:

S.L. 1981, ch. 631, § 29; 1985, ch. 235, § 122; 1997, ch. 108, § 46.

61-04.1-30. Abolishment of weather modification authority by election.

When a petition signed by not less than twenty percent of the qualified electors of the county, as determined by the vote cast for governor in the last preceding gubernatorial election, requesting an election upon the abolishment of a weather modification authority as created in sections 61-04.1-27 and 61-04.1-29 is presented to the board of county commissioners, not later than sixty days prior to the next countywide election, the board of county commissioners shall submit the question to the qualified electors of the county at the next countywide election. Upon approval by a majority of the votes cast on the question, the board of county commissioners shall abolish the weather modification authority as of December thirty-first following the election. All unexpended funds remaining in the name of the weather modification authority, after all proper bills and expenses have been paid, shall be deposited in the general fund of the county.

Source:

S.L. 1981, ch. 631, § 30; 1985, ch. 235, § 123; 1997, ch. 108, § 47; 2011, ch. 152, § 45.

61-04.1-31. Creation of weather modification authority by vote after resolution of county commissioners.

The board of county commissioners of any county may, by resolution after a public hearing, submit the question of the creation of a weather modification authority to the electors of the county at the next countywide election. Upon approval by a majority of the votes cast on the question, the board of county commissioners shall pass a resolution creating a weather modification authority, as described in section 61-04.1-23. Such an authority shall have all powers provided by this chapter, including the authority to levy a tax as provided by section 61-04.1-26.

Source:

S.L. 1981, ch. 631, § 31; 1997, ch. 108, § 48.

61-04.1-32. County budget may be waived for first appropriation — Conditions.

The provisions of chapter 11-23 shall not apply to appropriations made under the provisions of this chapter. However, immediately after a weather modification authority has been created by resolution of the board of county commissioners, and after certification of a mill levy by the weather modification authority, and only for the initial or first appropriation for the authority, the board of county commissioners may appropriate from moneys, not otherwise appropriated, in the general fund, such moneys as are necessary for carrying out the provisions of this chapter. However, the appropriation shall not exceed an amount equal to what funds would be raised by a seven-mill levy upon the taxable valuation of the property in the county.

Source:

S.L. 1981, ch. 631, § 32; 1983, ch. 593, § 86; 1983, ch. 679, § 4; 1987, ch. 53, § 7.

61-04.1-33. Bids required — When.

Whenever the board shall undertake to contract with any licensed controller in an amount in excess of ten thousand dollars in any one year, the board shall advertise for proposals for such weather modification activities and, in its proceedings with respect to bids therefor, shall substantially follow the manner and form required by the laws of this state for the purchase of supplies by the office of management and budget. The board shall enter into no contract or agreement for weather modification services except with a controller, holding the permit as required by this chapter, except for the purpose of gathering technical information, and making studies or surveys.

Source:

S.L. 1981, ch. 631, § 33.

61-04.1-34. Performance bond, cash, or negotiable securities required.

Before the board shall contract with any controller, it shall require the controller to furnish a surety bond or cash or negotiable securities for the faithful performance of the contract in such amount as determined by the board, conditioned that the licensee and the licensee’s agents will in all respects faithfully perform all weather modification contracts undertaken with the board and will comply with all provisions of this chapter and the contract entered into by the board and the licensee.

Source:

S.L. 1981, ch. 631, § 34; 1989, ch. 749, § 1.

61-04.1-35. Bid bond, cash, or negotiable securities required.

All bids submitted to the board for operations conducted under this chapter shall be accompanied by a separate envelope containing a bidder’s bond or cash or negotiable securities in a sum equal to five percent of the full amount of the bid, executed by the bidder as principal or by a surety company authorized to do business in this state as a guarantee that the bidder will enter into the contract if it is awarded to the bidder.

Source:

S.L. 1981, ch. 631, § 35; 1989, ch. 749, § 2.

61-04.1-36. State immunity.

Nothing in this chapter shall be construed to impose or accept any liability or responsibility on the part of this state or any of its agencies, or any state officials or state employees or weather modification authorities for any injury caused by weather modification operations by any person or licensed controller as defined in this chapter.

Source:

S.L. 1981, ch. 631, § 36.

61-04.1-37. Liability of controller.

  1. An operation conducted under the license and permit requirements of this chapter is not an ultrahazardous or abnormally dangerous activity which makes the permittee subject to liability without fault.
  2. Dissemination of materials and substances into the atmosphere by a permittee acting within the conditions and limits of the permittee’s permit shall not constitute trespass.
  3. Except as provided in this section and in section 61-04.1-36, nothing in this chapter shall prevent any person adversely affected by a weather modification operation from recovering damages resulting from negligent or intentionally harmful conduct by a permittee.
  4. The fact that a person holds a license or was issued a permit under this chapter, or that the person has complied with the rules adopted by the board pursuant to this chapter, is not admissible as a defense in any legal action which may be brought against the person.

Source:

S.L. 1981, ch. 631, § 37.

61-04.1-38. Board may receive and expend funds.

The board may receive and accept in the name of the state any funds that are offered or become available from any federal grant or appropriation, private gift, donation, or bequest, county funds, or funds from any other source except license and permit fees, and to expend these funds for the expense of administering this chapter, and, with the exception of county funds and funds from any other person contracting with the board for weather modification operations, for the encouragement of research and development in weather modification by any private person, the North Dakota state university, the university of North Dakota, or any other appropriate state, county, or public agency in this state by direct grant, contract, or other means.

All federal grants, federal appropriations, private gifts, donations, or bequests, county funds, or funds from any other source except license and permit fees, received by the board must be paid over to the state treasurer, who shall credit this amount to a special fund in the state treasury known as the state weather modification fund. All proceeds deposited by the state treasurer in the state weather modification fund are appropriated to the board and, if expended, must be disbursed by warrant-check prepared by the office of management and budget upon vouchers submitted by the board and must be used for the purpose of paying for the expense of administration of this chapter and, with the exception of county funds or funds from any other person contracting with the board for weather modification operations, for the encouragement of research and development in weather modification by any private person, the North Dakota state university, the university of North Dakota, or any other appropriate state, county, or public agency by direct grant, contract, or other means.

Source:

S.L. 1981, ch. 631, § 38; 1999, ch. 538, § 7.

61-04.1-39. Payment for weather modification — State to provide funds.

Any weather modification authority or person that contracted with the board for weather modification operations under this chapter shall appropriate to the state weather modification fund the amount determined by the board to be necessary to provide that weather modification authority or person with weather modification operations. The board may expend, from the state weather modification fund, the funds the board deems necessary to provide a contracting weather modification authority or person with weather modification operations.

Source:

S.L. 1981, ch. 631, § 39; 1999, ch. 538, § 8.

61-04.1-40. State water commission — Compensation — Expenses.

Each member of the North Dakota state water commission shall receive the same compensation paid for other commission duties, for each day actually and necessarily engaged in the performance of official duties in connection with the administration of this chapter. Commission members and employees shall be reimbursed for actual and necessary expenses incurred in carrying out their official duties in the same manner and at the same rates as provided by law for state employees.

Source:

S.L. 1981, ch. 631, § 40; 1983, ch. 679, § 5.

61-04.1-41. Penalty.

Any person contracting for or conducting any weather modification activity without being licensed in accordance with the provisions of this chapter, or otherwise violating the provisions of this chapter, shall be guilty of a class B misdemeanor.

Source:

S.L. 1981, ch. 631, § 41.

Cross-References.

Penalties for classified offenses, see N.D.C.C. § 12.1-32-01.

CHAPTER 61-05 Organization of Irrigation Districts

61-05-01. Definitions.

As used in this chapter and in succeeding chapters dealing with irrigation districts:

  1. “Board” means the board of directors of any irrigation district.
  2. “Elector” means any landowner owning not less than five acres [2.02 hectares] of land whose land will be or is subject to assessments for construction or other costs, within a proposed or existing irrigation district, and who is a resident of this state. As herein used the term “owner” means an owner in fee simple and also includes:
    1. An entryman of government land.
    2. A purchaser of land under contract.
    3. A guardian, executor, administrator, or trustee.
    4. A corporation organized and existing under the laws of this state.
    5. A limited liability company organized and existing under the laws of this state.
    6. The United States of America and the state of North Dakota.
  3. “Irrigable acres” or “irrigable lands” means those lands which can or will be served by the district’s works, as determined by the department of water resources before the district is organized, or as determined from time to time by the district’s board of directors. Whenever land or acreage is described as being susceptible of irrigation or subject to assessment, it means the same as irrigable acres.
  4. “Works” includes canals, ditches, pipelines, and other conveyance systems, pumping plants, rights of way, easements, reservoirs, dams, well fields, and other works for the appropriation of water and the necessary sites for pumping plants, reservoirs, dams, well fields, and all means and property required for a completed operating system of irrigation works.

Source:

S.L. 1917, ch. 115, § 1; 1925 Supp., § 8247a1; S.L. 1933, ch. 142, § 1; 1939, ch. 253, §§ 1, 10; 1941, ch. 298, § 1; R.C. 1943, § 61-0501; S.L. 1947, ch. 372, § 1; 1957 Supp., § 61-0501; S.L. 1963, ch. 420, § 1; 1971, ch. 588, § 1; 1983, ch. 680, § 1; 1993, ch. 54, § 106; 2021, ch. 488, § 106, eff August 1, 2021.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-05-02. Proposals for irrigation district — Electors required.

Whenever a majority of the electors within an area containing eighty acres [32.37 hectares] or more of land, susceptible of irrigation, desire to provide for the irrigation of such land, they may propose the organization of an irrigation district under the provisions of this chapter. When so organized, the district shall have the powers conferred or that may be conferred by law upon irrigation districts. No district, when so organized, shall contain less than five electors, as the term elector is defined in this chapter. Where irrigation works, ditches, or canals have been constructed prior to July 1, 1941, of sufficient capacity to irrigate the lands thereunder for which the water taken in such canals or ditches is appropriated, such canals or ditches and the franchises under which the same are maintained and operated, and the lands irrigated by such canals or ditches, shall be exempt from the operation of the provisions of this chapter, unless such irrigation district is created to acquire and own such irrigation works, canals, ditches, water rights, and franchises.

Source:

S.L. 1917, ch. 115, § 1; 1925 Supp., § 8247a1; S.L. 1933, ch. 142, § 1; 1939, ch. 253, § 1; 1941, ch. 298, § 1; R.C. 1943, § 61-0502.

61-05-02.1. Creation and jurisdiction of irrigation district — Limitations.

Notwithstanding section 61-05-02, an irrigation district may not be created if the primary purpose of the district is to provide drainage benefits to residents of the district. A drainage project proposed, undertaken, approved, or subject to assessment by an irrigation district also is subject to the permit requirements under chapter 61-32. Drainage benefits provided by an irrigation district may not impact the authority of a water resource board to assess for drainage projects under chapter 61-16.1 or 61-21.

Source:

S.L. 2019, ch. 509, § 1, eff August 1, 2019.

61-05-03. Votes of electors — Number permissible.

Any elector owning twenty acres [8.09 hectares] or less but not less than five acres [2.02 hectares], subject to assessments for construction or other costs within a proposed or existing district, shall have one vote. Any elector owning more than twenty acres [8.09 hectares] subject to such assessments within any irrigation district which will receive all or a portion of its water supply from a federal reclamation or irrigation project shall have one additional vote for each additional twenty acres [8.09 hectares] or major fraction thereof. However, the total votes any elector is entitled to must be determined based on the number of acres [hectares] the elector is entitled to irrigate pursuant to the Reclamation Reform Act of 1982 [Pub. L. 97-293; 96 Stat. 1263; 43 U.S.C. 390aa et seq.] and may not exceed more than thirty-five percent of the total votes eligible to be cast in any district election regardless of the number of acres [hectares] of land owned by the elector in the district. Any elector owning more than twenty acres [8.09 hectares] subject to assessments within any existing or proposed irrigation district which does not receive any of its water supply from a federal reclamation or irrigation project shall have one additional vote for each additional twenty acres [8.09 hectares] or major fraction thereof, but no elector shall be entitled to cast more than thirty-five percent of the total votes eligible to be cast in any district election regardless of the number of acres [hectares] of land owned by the elector in the district.

Source:

S.L. 1917, ch. 115, § 1; 1925 Supp., § 8247a1; S.L. 1933, ch. 142, § 1; 1939, ch. 253, § 1; 1941, ch. 298, § 1; R.C. 1943, § 61-0503; S.L. 1947, ch. 372, § 2; 1949, ch. 345, § 1; 1957 Supp., § 61-0503; S.L. 1983, ch. 680, § 2; 1995, ch. 591, § 1.

Notes to Decisions

Right to Vote.

This section determines right to vote on an acre basis. In re Heart River Irrigation Dist., 78 N.D. 302, 49 N.W.2d 217, 1951 N.D. LEXIS 91, 1951 N.D. LEXIS 92 (N.D. 1951).

61-05-04. Fiduciary must file proof of authority — Appointment of agent.

A guardian, executor, administrator, or trustee shall present to and file with the clerk of the irrigation district election board a certified copy of the person’s or corporation’s letters of guardianship, letters testamentary, or letters of administration, or of the instrument creating the trust, as the case may be. Any such guardian, executor, administrator, or trustee, whether an individual or a corporation, by an instrument in writing, duly acknowledged, may designate an agent to vote in the person’s or corporation’s behalf. Such instrument appointing such agent shall be presented to and filed with the clerk of the district election board by such agent.

Source:

S.L. 1917, ch. 115, § 1; 1925 Supp., § 8247a1; S.L. 1933, ch. 142, § 1; 1939, ch. 253, § 1; 1941, ch. 298, § 1; R.C. 1943, § 61-0504.

61-05-05. Co-owners of land in irrigation district — Who may vote.

Where lands within a proposed or existing irrigation district are owned by co-owners only, such co-owners who are residents of this state may vote their respective interest personally, or such co-owners by an instrument in writing, may designate one of their number as agent to cast the vote for each such co-owner. Provided, that in no event shall any such co-owner be entitled to cast, less than one full vote, or any vote or votes constituting any fraction of one vote. Such instrument shall be acknowledged by such co-owners and shall be presented to and filed with the clerk of the district election board.

Source:

S.L. 1917, ch. 115, § 1; 1925 Supp., § 8247a1; S.L. 1933, ch. 142, § 1; 1939, ch. 253, § 1; 1941, ch. 298, § 1; R.C. 1943, § 61-0505; S.L. 1947, ch. 372, § 3; 1957 Supp., § 61-0505.

61-05-06. Private or public corporation or limited liability company may designate agent to vote.

Where lands which are within a proposed or existing irrigation district are owned by a corporation or a limited liability company, by the United States, or by this state, such corporation or limited liability company, and any department or agency of the United States or of this state, in order to participate in any district election, by an instrument in writing, executed and acknowledged by the proper officer or officers of such corporation, department, or agency, or by the proper manager or managers of such limited liability company, shall designate an agent to vote in its behalf. Such instrument shall be presented to and filed with the clerk of the district election board by such agent.

Source:

S.L. 1917, ch. 115, § 1; 1925 Supp., § 8247a1; S.L. 1933, ch. 142, § 1; 1939, ch. 253, § 1; 1941, ch. 298, § 1; R.C. 1943, § 61-0506; S.L. 1993, ch. 54, § 106.

61-05-07. Petition for a proposed irrigation district — Where filed — Signed by whom — Contents.

A petition for a proposed irrigation district must be filed with the department of water resources and signed by landowners of the proposed district who together own a majority of the whole number of acres [hectares] subject to assessment for construction or other costs within the district requesting the territory described in the petition be organized under the provisions of this chapter. The territory must be described and included in the district, if established, by legal governmental subdivisions of forty acres [16.19 hectares] or more unless held in fractional lots or plotted units of lesser size, or unless portions of the territory are more readily susceptible to irrigation from works other than those of the proposed district. The proposed district may include lands that are not contiguous to any other lands in the proposed district. The petition must include the name and address of each petitioner and a description of the petitioner’s land, and a map or maps showing the boundaries of the proposed district must be attached to the petition.

Source:

S.L. 1917, ch. 115, § 2; 1925 Supp., § 8247a2; S.L. 1939, ch. 253, § 2; 1941, ch. 298, § 2; R.C. 1943, § 61-0507; S.L. 1947, ch. 372, § 4; 1957, ch. 377, § 1; 1957 Supp., § 61-0507; S.L. 1983, ch. 680, § 3; 2021, ch. 488, § 107, eff August 1, 2021.

Notes to Decisions

Jurisdiction of State Engineer.

Under provisions of this section filing of petition signed by majority of qualified electors owning majority of acres of land to be included within irrigation district and giving of notice of hearing and reasonable opportunity to be heard confers jurisdiction upon state engineer to establish irrigation districts subject to approval by electors at a special election required by law. In re Ft. Clark Irrigation Dist., 78 N.D. 107, 48 N.W.2d 741, 1951 N.D. LEXIS 77 (N.D. 1951).

61-05-08. Petition accompanied by map — Contents — Scale.

The petition provided for in section 61-05-07 must be accompanied by a map or maps of the proposed district. The map must show the location of the proposed conveyance systems and other works intended to be used to irrigate the lands of the proposed district. If the water supply is from a natural stream, the flow of the stream must be stated in cubic feet [meters] per second. If the water supply for the district is to be gathered by a storage reservoir, the map must show the location of the storage reservoir and state the reservoir’s capacity in acre-feet. If the water supply is from a ground water source, the map must show the general location of wells and proposed pumping rates. Unless otherwise permitted by the department of water resources, the map must be drawn to a scale of not less than two inches [5.08 centimeters] to the mile [1.61 kilometers]. Preliminary designs of all proposed conveyance systems and other works must be prepared in sufficient detail to show the contemplated method of construction, along with a feasibility report on the proposed plan of irrigation. The feasibility report must include an analysis of the soil and water compatibility of the irrigable lands of the proposed district. A registered professional engineer shall prepare the map, preliminary designs, and feasibility report required by this section.

Source:

S.L. 1917, ch. 115, § 2; 1925 Supp., § 8247a2; S.L. 1939, ch. 253, § 2; 1941, ch. 298, § 2; R.C. 1943, § 61-0508; S.L. 1947, ch. 372, § 5; 1957 Supp., § 61-0508; S.L. 1983, ch. 680, § 4; 2021, ch. 488, § 108, eff August 1, 2021.

61-05-09. Petition accompanied by bond — Approval of bond — Certified copy of petition filed.

Unless otherwise permitted by the department of water resources, the petition must be accompanied by a good and sufficient bond to be approved by the department of water resources. The bond must be in double the amount of the probable cost of organizing the district including the cost of the first election for the organization of the district. The bond also must be conditioned that the sureties will pay all costs in case the organization is not approved by the electors. Within ten days after the filing of the petition, and the approval of the bond, the department of water resources shall file a copy of the petition with the county auditor of each county in which the proposed irrigation district is situated.

Source:

S.L. 1917, ch. 115, § 2; 1925 Supp., § 8247a2; S.L. 1939, ch. 253, § 2; 1941, ch. 298, § 2; R.C. 1943, § 61-0509; S.L. 1947, ch. 372, § 6; 1957 Supp., § 61-0509; 2021, ch. 488, § 109, eff August 1, 2021.

61-05-10. Hearing on petition — Notice — Report on feasibility — Copy of report filed — Submitted to electors.

The department of water resources shall examine the petition, maps, papers, and data pertaining to the proposed irrigation district and shall fix a time and place for hearing the petition. A notice stating the petition will be heard, and stating the time and place of hearing, must be filed with the county auditor of each county in which the proposed district is located. The notice must be published once each week for two consecutive weeks in the newspapers of general circulation where the district is located and in the official newspaper of each county in which the district is located. The date set for the hearing on the petition may not be less than twenty days after the first publication of the notice. Before the hearing the department shall review the maps, preliminary designs, and feasibility study and shall prepare, or shall cause to be prepared a summary report showing the probable cost of the proposed irrigation works and the practicability and feasibility of the plan of irrigation suggested or proposed by petitioners for the irrigation of the lands within the district. A copy of the report must be filed with the county auditor of each county in which the proposed irrigation district is situated, and the report must be open to public inspection. The department of water resources also shall submit the report to the electors of the proposed district at the meeting set for hearing the petition for the organization of the proposed district.

Source:

S.L. 1917, ch. 115, § 2; 1925 Supp., § 8247a2; S.L. 1939, ch. 253, § 2; 1941, ch. 298, § 2; R.C. 1943, § 61-0510; S.L. 1983, ch. 680, § 5; 2021, ch. 488, § 110, eff August 1, 2021.

61-05-11. Amendment of plan of irrigation — Adjournment of hearing by department of water resources.

At the hearing provided in section 61-05-10, the department of water resources may amend the plan of irrigation proposed in the petition provided in section 61-05-07. The department may adjourn the hearing from time to time and may make changes in the proposed boundaries of the district as the department deems advantageous and advisable, but the boundaries of the district proposed in the petition for its organization may not be enlarged or extended until the electors who own a majority of the acres [hectares] of land subject to assessments for construction or other costs to be included in the extension consented to the enlargement or extension in writing.

Source:

S.L. 1917, ch. 115, § 2; 1925 Supp., § 8247a2; S.L. 1939, ch. 253, § 2; 1941, ch. 298, § 2; R.C. 1943, § 61-0511; S.L. 1947, ch. 372, § 7; 1957 Supp., § 61-0511; 2021, ch. 488, § 111, eff August 1, 2021.

Notes to Decisions

Duties and Powers of State Engineer.

This section defines duties and powers of state engineer with respect to fixing boundaries of irrigation districts. In re Ft. Clark Irrigation Dist., 78 N.D. 107, 48 N.W.2d 741, 1951 N.D. LEXIS 77 (N.D. 1951).

61-05-12. Department of water resources may make order denying petition — Filing.

If the department of water resources determines the plan of irrigation proposed is not practicable or not economically sound, the department shall make an order denying the petition for the organization of an irrigation district and shall state the reasons for the action. A copy of the order must be filed with the county auditor of each county in which the proposed irrigation district is situated.

Source:

S.L. 1917, ch. 115, § 3; 1925 Supp., § 8247a3; S.L. 1933, ch. 142, § 2; 1939, ch. 253, § 3; 1941, ch. 298, § 3; R.C. 1943, § 61-0512; 2021, ch. 488, § 112, eff August 1, 2021.

61-05-13. Order establishing irrigation district — Calling election — Dividing district — Contents of order.

  1. If the department of water resources determines the establishment of the proposed irrigation district is advisable and the plan proposed for irrigating the lands in the proposed district is practicable and economically sound, the department shall make an order establishing the irrigation district, subject to the approval of the electors of the district at an election called by the department for that purpose.
  2. If the district embraces more than twenty thousand irrigable acres [8093.72 irrigable hectares] of land, the department by the order shall divide the district into five or seven divisions or precincts as the department determines necessary for the convenience of the electors of the district. The divisions or precincts must be numbered and as nearly equal in size as practicable. One director must be elected from, and by the electors of, each division. If an elector owns land in more than one division, the elector shall cast all the elector’s votes for director and is eligible for election as a director in the division in which the majority of the elector’s land subject to assessment lies.
  3. The department’s order must set forth:
    1. The time and place of holding the election.
    2. The boundaries of the district.
    3. That a petition sufficient in form and substance was filed with the department of water resources.
    4. That due and reasonable notice of time and place of hearing on petition was given to the qualified electors of the proposed irrigation district.
  4. A copy of the order must be filed with the county auditor of each county in which the irrigation district is situated. The order is prima facie evidence of the matter and facts therein stated.

Source:

S.L. 1917, ch. 115, § 3; 1925 Supp., § 8247a3; S.L. 1933, ch. 142, § 2; 1939, ch. 253, § 3; 1941, ch. 298, § 3; R.C. 1943, § 61-0513; S.L. 1947, ch. 372, § 8; 1957 Supp., § 61-0513; S.L. 1971, ch. 588, § 2; 1983, ch. 680, § 6; 2001, ch. 565, § 1; 2021, ch. 488, § 113, eff August 1, 2021.

Cross-References.

Elimination of divisions on exclusion of land, see N.D.C.C. § 61-10-38.

Redivision of irrigation district into divisions, see N.D.C.C. § 61-10-31.

Validating organization and acts of irrigation districts, see N.D.C.C. § 1-06-04.

Notes to Decisions

Duties and Powers of State Engineer.

This section defines duties and powers of state engineer when a petition is presented and filed for his consideration. In re Ft. Clark Irrigation Dist., 78 N.D. 107, 48 N.W.2d 741, 1951 N.D. LEXIS 77 (N.D. 1951).

Nonirrigable Lands.

Inclusion of nonirrigable lands within exterior boundaries of an irrigation district, when organized, does not render such organization void or invalid. In re Heart River Irrigation Dist., 78 N.D. 302, 49 N.W.2d 217, 1951 N.D. LEXIS 91, 1951 N.D. LEXIS 92 (N.D. 1951).

61-05-14. Notice of election — Contents — Publication.

Upon making an order establishing an irrigation district, the department of water resources shall give notice of an election to be held in the district to determine whether the electors of the district approve the establishment and organization of the irrigation district. The notice must state that an elector desiring to be a candidate for the office of district director shall file the elector’s name with the department of water resources not less than twenty days before the election. The notice must carry a reference to the map or maps previously filed with the county auditor describing the boundaries of the lands included in the district as established by the department and designate a name for the district. The notice must be filed with the county auditor of each county in which the proposed district is situated and be published once each week for two consecutive weeks in the newspapers of general circulation where the district is located and in the official newspaper of each county in which the district is located. The date set for the election must be not less than twenty-five, nor more than thirty-five, days after the first publication of the notice.

Source:

S.L. 1917, ch. 115, § 3; 1925 Supp., § 8247a3; S.L. 1933, ch. 142, § 2; 1939, ch. 253, § 3; 1941, ch. 298, § 3; R.C. 1943, § 61-0514; S.L. 1947, ch. 372, § 9; 1949, ch. 345, § 2; 1957 Supp., § 61-0514; S.L. 1983, ch. 680, § 7; 2021, ch. 488, § 114, eff August 1, 2021.

61-05-15. Form of notice of election.

The notice of election provided for in section 61-05-14 must be substantially in the following form:

NOTICE OF ELECTION Notice is given that on , , an election will be held for the purpose of submitting to the electors within the territory established and described by the order of the department of water resources as irrigation district, the question whether the order of the department of water resources establishing the irrigation district is approved. Notice is given that the lands of the district are described fully in the order of the department of water resources establishing the district and filed in the department’s office in Bismarck, North Dakota, and in the office of the county auditor of County, North Dakota. The ballot must be in the following form: __________ ____ __________ __________ FOR IRRIGATION DISTRICT Yes • No • Notice is further given that a board consisting of directors will be elected, one from each district division, to serve as provided by law after the establishment of the district is approved. Polls will be open from one p.m. to seven p.m. Notice is further given that any elector desiring to be a candidate for the office of district director and to have the elector’s name appear on the ballot shall file the elector’s request in writing with the department of water resources not less than twenty days before the election. __________ Dated , . ______________ ______ Signed _________________ Director of the Department of Water Resources

Click to view

Source:

S.L. 1917, ch. 115, § 3; 1925 Supp., § 8247a3; S.L. 1933, ch. 142, § 2; 1939, ch. 253, § 3; 1941, ch. 298, § 3; R.C. 1943, § 61-0515; S.L. 1947, ch. 372, § 10; 1957 Supp., § 61-0515; S.L. 1983, ch. 680, § 8; 1999, ch. 51, § 38; 2021, ch. 488, § 115, eff August 1, 2021.

61-05-16. Department of water resources to appoint clerk and two judges of election — Filling vacancies on board.

Prior to the holding of an election upon the question of establishing and organizing an irrigation district, the department of water resources shall appoint from the electors of the district one clerk and two judges to constitute a board of election for the district. If the district is divided into divisions or precincts, the board of election must be appointed from the electors of each division and shall serve as a board of election for the district. If the members appointed do not attend at the opening of the polls on the day of election, the electors present at that hour may choose the members of the election board or fill the place of an absent member of the election board.

Source:

S.L. 1917, ch. 115, § 3; 1925 Supp., § 8247a3; S.L. 1933, ch. 142, § 2; 1939, ch. 253, § 3; 1941, ch. 298, § 3; R.C. 1943, § 61-0516; S.L. 1947, ch. 372, § 11; 1957 Supp., § 61-0516; 2021, ch. 488, § 116, eff August 1, 2021.

61-05-17. Conduct of election — Votes canvassed by board and department of water resources — Retaining ballots.

An election upon the question of organizing an irrigation district must be conducted in accordance with the general election laws of the state. After the polls are closed, the election board shall proceed to canvass the votes cast, and the clerk of the election board shall certify to the department of water resources the result of the election. The clerk of the board then shall wrap securely the ballots cast at the election and shall express or mail the secured ballots by registered or certified mail to the department, which also shall canvass the ballots and verify the result. The department shall file and retain in the department’s office the ballots cast at the election.

Source:

S.L. 1917, ch. 115, § 3; 1925 Supp., § 8247a3; S.L. 1933, ch. 142, § 2; 1939, ch. 253, § 3; 1941, ch. 298, § 3; R.C. 1943, § 61-0517; 2021, ch. 488, § 117, eff August 1, 2021.

61-05-18. Election governing organization of district — Filing record of election — Certificates of election to directors.

After the canvass of votes has been verified by department of water resources, if a majority of all votes cast are in favor of the organization of an irrigation district, the department, by an order, shall declare the territory duly organized as an irrigation district under the name and style designated and shall declare the persons receiving the highest number of votes duly elected as directors. The department shall cause a certified copy of the order to be filed immediately for record in the office of the recorder of each county in which any portion of the irrigation district is situated and also shall file a copy of the order with the county auditor of each county in which any portion of the district is situated. The organization of the district is complete upon the filings required in this section. The department of water resources immediately shall make out and mail, by registered or certified mail, to each person elected to the office of director a certificate of election signed by the director of the department, and the directors shall take office upon receipt of the certification.

Source:

S.L. 1917, ch. 115, § 3; 1925 Supp., § 8247a3; S.L. 1933, ch. 142, § 2; 1939, ch. 253, § 3; 1941, ch. 298, § 3; R.C. 1943, § 61-0518; S.L. 2001, ch. 120, § 1; 2021, ch. 488, § 118, eff August 1, 2021.

61-05-19. Department of water resources to file order with secretary of state — Secretary of state to make certificate — Evidence.

The department of water resources shall file in the office of the secretary of state a certified copy of the department’s order declaring any territory to be duly organized as an irrigation district, and the secretary of state shall make and issue to the department a certificate under the seal of the state of the due organization of the district. The secretary of state also shall file in the secretary’s office a copy of the secretary’s certificate and the order of the department. The certificate of the secretary of state, or a copy of the certificate, authenticated by the secretary of state, is prima facie evidence of the organization and existence of the irrigation district.

Source:

S.L. 1917, ch. 115, § 3; 1925 Supp., § 8247a3; S.L. 1933, ch. 142, § 2; 1939, ch. 253, § 3; 1941, ch. 298, § 3; R.C. 1943, § 61-0519; S.L. 1967, ch. 98, § 36; 2021, ch. 488, § 119, eff August 1, 2021.

61-05-20. Appeal to district court from orders and decisions of the department of water resources — Time — Undertaking.

An appeal may be taken to the district court from any order or decision of the department of water resources by any person who is aggrieved by the order or decision, at any time within thirty days after the order or decision has been filed with the county auditor of the county in which the appeal is taken. The appeal must be taken by serving notice of appeal on the director of the department of water resources and by filing the notice of appeal, proof of service of the notice, and the undertaking required in this section with the clerk of the district court of the county in which the appeal is taken. To effect an appeal an undertaking must be executed by the appellant and sufficient surety conditioned that the appellant will prosecute the appeal without delay and will pay all costs adjudged against the appellant in the district court. The undertaking must be made in favor of the department of water resources as obligee and may be enforced by the department. The appeal must be taken to the district court of the county in which the land claimed to be affected adversely by the order or decision appealed from is situated. If the land is situated in more than one county, the appeal may be taken to the district court of any county in which any part of the land is situated. Any appeal taken under this section must be docketed in the district court as any civil cause commenced in the district court is docketed. The district court has and shall exercise original jurisdiction in the appeal and shall hear and rule on the case, without a jury, in the same manner as a civil cause originally commenced in that court. The court may require and fix the time for the service and filing of formal pleadings. Appeals to the supreme court may be taken by the department of water resources or any other party to the cause from any judgment entered in the district court and from any order of the court if an appeal would lie from the order if the order were entered by the court in any other civil action.

Source:

S.L. 1939, ch. 253, § 4; R.C. 1943, § 61-0520; S.L. 1951, ch. 336, § 1; 1957 Supp., § 61-0520; S.L. 1983, ch. 680, § 9; 2021, ch. 488, § 120, eff August 1, 2021.

Notes to Decisions

Person Aggrieved.

An irrigation district organized under N.D.C.C. ch. 61-05 is “person aggrieved” within meaning of law governing appeals generally. In re Heart River Irrigation Dist., 77 N.D. 827, 47 N.W.2d 126, 1951 N.D. LEXIS 116 (N.D. 1951).

61-05-21. Validating organization and acts of irrigation districts.

Nothing contained in this chapter shall be construed as impairing, invalidating, or in any manner affecting the validity of acts or proceedings of irrigation districts organized pursuant to the provisions of chapter 38 of the Code of Civil Procedure of the Supplement to the Compiled Laws of 1913 and prior to March 16, 1939. The organization of any irrigation district prior to March 16, 1939, in substantial compliance with the provisions of this chapter, hereby is declared to be a valid and legal district, and all acts and proceedings of such district, and of the board of directors thereof, done and performed in substantial compliance with the provisions of this title hereby are validated and hereby are declared legal and valid.

Source:

S.L. 1939, ch. 253, § 44; R.C. 1943, § 61-0521.

CHAPTER 61-06 Government of Irrigation Districts

61-06-01. Board of directors of irrigation district — Terms — Vacancies.

If an irrigation district contains less than twenty thousand irrigable acres [8093.72 irrigable hectares] of land and is not divided into precincts or divisions, the board of directors consists of five directors who must be residents of the state and electors of the district and must be elected at large. Two directors elected at the election for the organization of the district serve until the first Tuesday in April following the first regular district election, and three serve until the first Tuesday in April following the second regular election.

If an irrigation district contains twenty thousand irrigable acres [8093.72 irrigable hectares] or more, it must be divided into five or seven divisions or precincts, as the case may be, and one director must be elected from and by the electors of each division or precinct.

If an irrigation district contains twenty thousand irrigable acres [8093.72 irrigable hectares] or more and is divided into five divisions or precincts, the board of directors of the irrigation district consists of five directors. Two directors elected at the election for the organization of the district serve until the first Tuesday in April following the first regular district election, and three directors serve until the first Tuesday in April following the second regular district election.

If an irrigation district contains twenty thousand irrigable acres [8093.72 irrigable hectares] or more and is divided into seven divisions or precincts, the board of directors of the irrigation district consists of seven directors. Three directors elected at the election for the organization of the district serve until the first Tuesday in April following the first regular district election, and four directors serve until the first Tuesday in April following the second regular district election.

The terms of office of the directors elected at the first election for the organization of the district must be determined by lot at their first meeting. Directors elected at subsequent elections serve for four years and until their successors are duly elected and qualified. In case the office of any director becomes vacant, the remaining members of the board shall fill the vacancy by appointment. A director appointed to fill a vacancy serves the unexpired term of the director whose office that director has been appointed to fill. If vacancies occur in the offices of a majority of the directors of an irrigation district, the remaining members and the director of the department of water resources shall fill the vacancies; and if the offices of all the directors become vacant, the director of the department of water resources shall appoint the members of the board who shall serve until the next regular election of the district. The successors of the appointed directors must be elected to serve the unexpired term of the directors whose offices became vacant. The unexpired term of office that each director elected in this manner fills must be determined by lot.

Source:

S.L. 1917, ch. 115, § 3; 1925 Supp., § 8247a3; S.L. 1933, ch. 142, § 2; 1939, ch. 253, § 3; 1941, ch. 298, § 3; R.C. 1943, § 61-0601; S.L. 1947, ch. 372, § 12; 1957 Supp., § 61-0601; S.L. 1971, ch. 588, § 3; 1983, ch. 680, § 10; 1989, ch. 750, § 1; 2001, ch. 565, § 2; 2021, ch. 488, § 121, eff August 1, 2021.

Cross-References.

Definitions applicable to chapter, see N.D.C.C. § 61-05-01.

61-06-02. Directors elected subsequent to organization assume office — Time — Term.

The directors elected subsequent to the organization of the district shall assume the duties of their office the first Tuesday in April after their election and shall hold office until their successors are elected and qualified.

Source:

S.L. 1917, ch. 115, § 4; 1925 Supp., § 8247a4; S.L. 1939, ch. 253, § 5; 1941, ch. 298, § 4; R.C. 1943, § 61-0602.

61-06-03. Oath and bond of boards of directors — Filing.

After receiving a certificate of election each director shall take the oath prescribed for civil officers, and shall be bonded in the sum of one thousand dollars. The oath of office and bond must be filed in the office of the department of water resources.

Source:

S.L. 1917, ch. 115, § 4; 1925 Supp., § 8247a4; S.L. 1939, ch. 253, § 5; 1941, ch. 298, § 4; R.C. 1943, § 61-0603; 2021, ch. 488, § 122, eff August 1, 2021.

Cross-References.

Oath required of civil officers, see N.D. Const., art. XI, § 4; N.D.C.C. § 44-01-05.

Official bonds, see N.D.C.C. §§ 44-01-07 to 44-01-14.

State bonding fund, see N.D.C.C. ch. 26.1-21.

61-06-04. Meeting of directors — Organization — Officers — Quorum — Term of officers.

The directors elected at the first election in an irrigation district shall meet at the time and place designated by the department of water resources and organize by selecting one of their members as chairman of the board. A temporary secretary must be designated until a permanent secretary of the board has been appointed. After the organization of the board, a majority of the directors constitutes a quorum for the transaction of business of the board. The board shall appoint and fix the compensation of a secretary, a treasurer, and an assessor of the district and other officers or employees as the board deems necessary for the efficient conduct of the district’s business. Officers and employees appointed by the board shall hold office at the pleasure of the board. The office of secretary, assessor, and treasurer may be held by the same person. Each succeeding board of directors shall choose or appoint officers as provided in this section.

Source:

S.L. 1917, ch. 115, § 4; 1925 Supp., § 8247a4; S.L. 1939, ch. 253, § 5; 1941, ch. 298, § 4; R.C. 1943, § 61-0604; 2021, ch. 488, § 123, eff August 1, 2021.

Cross-References.

Meetings of public agencies open to public, see N.D. Const., art. XI, § 5; N.D.C.C. §§ 44-04-19 to 44-04-21.

61-06-05. Official bonds of assessor, district treasurer, and other employees — Approval and filing of bonds.

The assessor must be bonded in the amount of five hundred dollars and the district treasurer must be bonded in an amount not less than double the amount of money that may come into the treasurer’s hands, the amount to be determined by the board of directors but not be less than one thousand dollars. Other employees and appointed officers must be bonded in amounts prescribed by the board. The official bonds of the assessor, treasurer, and other officers and employees must be approved by the board and filed in the office of the department of water resources.

Source:

S.L. 1917, ch. 115, § 4; 1925 Supp., § 8247a4; S.L. 1939, ch. 253, § 5; 1941, ch. 298, § 4; R.C. 1943, § 61-0605; 2021, ch. 488, § 124, eff August 1, 2021.

Cross-References.

Official bonds, see N.D.C.C. §§ 44-01-07 to 44-01-14.

State bonding fund, see N.D.C.C. ch. 26.1-21.

61-06-06. District organized under provisions of chapter appointed fiscal agent of the United States.

In case any district organized under the provisions of this chapter is appointed fiscal or other agent of the United States or is authorized by the United States to make collections of money for and on behalf of the United States in connection with any federal reclamation or irrigation project, the treasurer and each director shall furnish an additional official bond in such amount as the secretary of the interior may require, conditioned for the faithful discharge of the duties of office and the faithful discharge by the district of its duties as fiscal or other agent of the United States under any such appointment or authorization. Such additional bonds may be sued upon by the United States or by any person damaged by failure of such officer or district fully, promptly, and faithfully to perform the duties imposed by law.

Source:

S.L. 1917, ch. 115, § 4; 1925 Supp., § 8247a4; S.L. 1939, ch. 253, § 5; 1941, ch. 298, § 4; R.C. 1943, § 61-0606.

61-06-07. Form of official bonds provided for in chapter — Obligee in bond.

All official bonds provided for in this chapter shall be in the form prescribed by law for official bonds of county officers except that the obligee named in such bond shall be the irrigation district.

Source:

S.L. 1917, ch. 115, § 4; 1925 Supp., § 8247a4; S.L. 1939, ch. 253, § 5; 1941, ch. 298, § 4; R.C. 1943, § 61-0607.

Cross-References.

Form of county officers’ bonds, see N.D.C.C. § 11-10-06.

61-06-08. Officers or employees bonded in state bonding fund — Premium paid by whom.

Every elective or appointive officer or employee of whom a bond is required under the provisions of this chapter shall be deemed to be bonded in the state bonding fund upon the giving of notice of such election or appointment by the secretary of the district to the insurance commissioner. Upon notification by the insurance commissioner of the amount of the premium of such bond or bonds, the secretary of the district forthwith shall remit the same.

Source:

S.L. 1917, ch. 115, § 4; 1925 Supp., § 8247a4; S.L. 1939, ch. 253, § 5; 1941, ch. 298, § 4; R.C. 1943, § 61-0608.

Cross-References.

State bonding fund, see N.D.C.C. ch. 26.1-21.

61-06-09. Regular election of irrigation districts — Mail ballot elections.

The regular election of irrigation districts must be held on the second Tuesday in February in each even-numbered year. The board of directors of an irrigation district may hold a regular or special election by mail ballot. If the board determines to hold an election by mail ballot, the board shall notify the electors of the district that the election will be held by mail ballot and that no polling places will be open for the election.

Source:

S.L. 1917, ch. 115, § 5; 1925 Supp., § 8247a5; S.L. 1939, ch. 253, § 6; 1941, ch. 298, § 5; R.C. 1943, § 61-0609; S.L. 1983, ch. 680, § 11; 2009, ch. 594, § 1.

61-06-10. Notice of election after district is organized — Contents — Form.

Within thirty-five days of, but at least twenty-five days before, any regular or special election held in an irrigation district, the secretary of the board of directors shall publish a notice of the election in the newspaper or newspapers of general circulation where the district is located and in the official newspaper of each county in which the district is located. The notice must specify the matters to be voted upon and if the election is to be held by mail ballot. If the election is not held by mail ballot, the notice must specify the location of the polling place or places and the time of opening and closing of the polling places. The notice must be in substantially the following form:

Notice is given that on _______________________________________ , _________ , an election will be held for the purpose of electing _________ members of the board of directors and for the purpose of voting upon the questions submitted by the directors of the district. (The election will be held by mail ballot.) or (The election will be held at _________ . Polls will be opened at one p.m. and will be closed at five p.m. of that day.) Notice is further given that any elector desiring to have the elector’s name appear on the ballot must file a request in writing with the secretary of the district not less than twenty days before the election.

Source:

S.L. 1917, ch. 115, § 5; 1925 Supp., § 8247a5; S.L. 1939, ch. 253, § 6; 1941, ch. 298, § 5; R.C. 1943, § 61-0610; S.L. 1959, ch. 409, § 1; 1963, ch. 420, § 2; 1971, ch. 588, § 4; 1983, ch. 680, § 12; 1999, ch. 51, § 39; 2009, ch. 594, § 2.

61-06-11. Board of election of irrigation district — Failure of member of election board to be present.

Before the date of the regular election, the board shall appoint from the electors of the district one clerk and two judges who shall constitute the board of election. If the board fails to appoint a board of election, or if the members appointed do not attend at the opening of the mail ballots or the opening of the polls on the day of election, the electors of the district present at that hour may appoint the members of the election board or fill the place of an absent member. The board of directors, in its order or resolution appointing the members of the board of election, shall designate the time and place where the mail ballots will be opened or where the election will be held.

Source:

S.L. 1917, ch. 115, § 5; 1925 Supp., § 8247a5; S.L. 1939, ch. 253, § 6; 1941, ch. 298, § 5; R.C. 1943, § 61-0611; 2009, ch. 594, § 3.

61-06-12. Candidates at election — Filing names.

Any person desiring to be a candidate at an irrigation district election shall file that person’s name with the secretary of the board not less than twenty days before the election. The secretary shall contact each candidate for the purpose of verifying the candidate’s willingness to be a candidate at the election.

Source:

S.L. 1917, ch. 115, § 5; 1925 Supp., § 8247a5; S.L. 1939, ch. 253, § 6; 1941, ch. 298, § 5; R.C. 1943, § 61-0612; S.L. 1963, ch. 420, § 3; 1993, ch. 600, § 1.

61-06-13. Ballot at irrigation district elections — Contents — Mail ballots.

  1. At least fifteen days before an election in an irrigation district, the secretary shall prepare and have printed an official ballot containing the names of all candidates which have been filed with the secretary. The ballot must:
    1. Be headed “Official Ballot”;
    2. Contain all names thus filed;
    3. Show the name of the district;
    4. State the number of individuals to be voted for;
    5. Have blank spaces below for writing in other names; and
    6. State any question or resolution submitted to the electors by the board of directors.
  2. The provisions of this chapter do not prevent an individual desiring to be a candidate at the election and who has failed to file as provided in this chapter, from furnishing stickers to be attached to the ballot by the electors. The stickers may not be over one-half inch [1.27 centimeters] in width and must have printed thereon one name only.
  3. If the election is not held by mail ballot any elector who will be absent from the irrigation district on the day of the election may vote an absent voter’s ballot at that election. The secretary shall provide the official ballot to any elector who applies for an absent voter’s ballot, and the absent voter shall submit the absent voter’s ballot to the secretary of the district, along with an affidavit that the ballot submitted represents the elector’s vote at the election, on or before the day of the election. An absent voter’s ballot must be the official ballot, and the ballot and affidavit must be actually delivered to the secretary or the election board before the polls close on election day. The secretary shall submit any absent voters’ ballots to the election board on the day of the district election.
  4. If the board of directors of the irrigation district determines to hold the election by mail ballot, the secretary of the board of directors shall mail an official mail ballot with a return identification envelope and instructions sufficient to describe the voting process to each elector on the fifteenth day before the election. The voting instructions must contain a statement informing the elector that the elector is entitled to complete the mail ballot in secrecy. The secretary shall mail the ballot by first-class mail, addressed to the address of the elector and placed in an envelope that is prominently marked “Do Not Forward”. The return identification envelope must include an affidavit for the elector to certify that the ballot submitted represents the elector’s vote. An elector entitled to cast more than one vote must be provided separate ballots for each vote to which the elector is entitled, and a return envelope with instructions sufficient to keep the ballots secret. An elector may obtain a replacement ballot if a mail ballot is destroyed, spoiled, lost, or not received by the elector by signing a sworn statement that the ballot was destroyed, spoiled, lost, or not received and delivering the statement to the secretary of the district no later than four p.m. on the day before the election. An elector voting by mail ballot shall either deliver the mail ballot to the secretary of the district before five p.m. on the day of the election or mail the ballot, which must be postmarked no later than the day before the election.

Source:

S.L. 1917, ch. 115, § 5; 1925 Supp., § 8247a5; S.L. 1939, ch. 253, § 6; 1941, ch. 298, § 5; R.C. 1943, § 61-0613; S.L. 1983, ch. 680, § 13; 2009, ch. 594, § 4; 2011, ch. 54, § 11.

61-06-14. Oath required of members of election board — Chairman of election board to administer.

Before opening the polls at an irrigation district election or opening mail ballots, each member of the election board shall take and subscribe the following oath or affirmation:

I do solemnly swear (or affirm) that I will perform my duties as judge or clerk (as the case may be) according to law and to the best of my ability.

The oath or affirmation may be administered by any director of the district or any officer authorized to administer oaths. The board of directors shall designate one of the judges as chairman of the election board and the chairman of the election board may administer and certify all oaths or affirmations taken by other members of the election board and shall administer and certify all oaths or affirmations required during the progress of the election.

Source:

S.L. 1917, ch. 115, § 6; 1925 Supp., § 8247a6; S.L. 1939, ch. 253, § 7; R.C. 1943, § 61-0614; 2009, ch. 594, § 5.

61-06-15. Opening and closing hours of polls at irrigation district elections.

If the election is not held by mail ballot, the polls must be open at one p.m. of the election day and must be kept open until five p.m. of the same day.

Source:

S.L. 1917, ch. 115, § 6; 1925 Supp., § 8247a6; S.L. 1939, ch. 253, § 7; R.C. 1943, § 61-0615; S.L. 1947, ch. 372, § 13; 1957 Supp., § 61-0615; S.L. 1983, ch. 680, § 14; 2009, ch. 594, § 6.

61-06-16. Canvass of ballots — Delivery of materials to directors.

Immediately after five p.m. on the day of the election, the election board publicly shall open and canvass the ballots cast and shall declare the result of the canvass. A mail ballot may be counted only if the ballot is returned in the return identification envelope and is signed by the elector. The chairman shall wrap securely all lists, tally sheets, oaths and affirmations, and other documents relating to the progress of the election and shall deliver the same to the secretary of the board of directors of the district.

Source:

S.L. 1917, ch. 115, § 6; 1925 Supp., § 8247a6; S.L. 1939, ch. 253, § 7; R.C. 1943, § 61-0616; 2009, ch. 594, § 7.

61-06-17. Compensation of members of election board.

Each member of the election board for an irrigation district election shall receive compensation as fixed by the board of directors for the member’s services.

Source:

S.L. 1917, ch. 115, § 6; 1925 Supp., § 8247a6; S.L. 1939, ch. 253, § 7; R.C. 1943, § 61-0617; S.L. 1971, ch. 588, § 5; 1983, ch. 680, § 15.

61-06-18. Return and canvass of votes by board of directors.

The board of directors of the district shall meet at its usual place of meeting within thirty days after each election and canvass the returns. If all the returns have not been received, the canvass shall be postponed from day to day until all the returns have been received. The canvass shall be made in public and by opening the returns and ascertaining the vote for each person voted for, and declaring the result thereof, and also ascertaining the vote for and against each and every question or proposition voted upon, and declaring the result thereof.

Source:

S.L. 1917, ch. 115, § 7; 1925 Supp., § 8247a7; S.L. 1939, ch. 253, § 8; R.C. 1943, § 61-0618; S.L. 1971, ch. 588, § 6.

61-06-19. Secretary of board of directors to declare result of election — Contents.

  1. The secretary of the board of directors, as soon as the result of the election is declared, shall record the election results including:
    1. The whole number of votes cast in the district.
    2. The names of the persons who received votes.
    3. Each question voted upon.
    4. The number of votes cast for each person.
    5. The number of votes cast for and against each question.
  2. A copy of the statement of election results must be recorded in a permanent record of the board. The statement must be signed by the secretary of the board and authenticated by the seal of the district. A copy of the signed and authenticated statement must be filed with the county auditor of each county in which the irrigation district is situated, and another copy must be mailed to the department of water resources.

Source:

S.L. 1917, ch. 115, § 8; 1925 Supp., § 8247a8; S.L. 1939, ch. 253, § 9; R.C. 1943, § 61-0619; 2021, ch. 488, § 125, eff August 1, 2021.

61-06-20. Board of directors to declare results of election — Secretary to issue certificates of election.

The board of directors shall declare elected the person having the highest number of votes cast for each office and shall declare the result of the election as to each question voted upon at the election. The secretary immediately shall make out and deliver to each person elected a certificate of election, signed by the secretary and authenticated with the seal of the district.

Source:

S.L. 1917, ch. 115, § 8; 1925 Supp., § 8247a8; S.L. 1939, ch. 253, § 9; R.C. 1943, § 61-0620.

61-06-21. Meetings of board — Regular and special — Quorum — Records of board.

The board shall hold regular meetings in its office or usual place of meeting in January, March, July, and November of each year. The board by rule or bylaw authorized by section 61-07-03 shall fix dates for such regular meetings and may also fix dates for additional regular meetings as it shall deem needed. The board also may hold special meetings as may be required for the transaction of the district’s business. A majority of the members of the board constitutes a quorum for the transaction of business. Special meetings shall be called by the secretary upon the order of the chairman of the board or upon the request in writing of two members. The order must be entered of record on the minutes of the meeting and notice of such special meeting shall be delivered or mailed to each member of the board at least five days prior to the date of such special meeting. A special meeting of the board may be called at any time by the chairman without notice and the meeting thus called shall be legal and valid if all members of the board of directors are present. A concurrence of at least a majority of the board is necessary on any question requiring a vote. All records of the board must be open to the inspection of any elector during business hours.

Source:

S.L. 1917, ch. 115, § 10; 1925 Supp., § 8247a10; S.L. 1933, ch. 142, § 3; 1939, ch. 253, § 11; 1941, ch. 298, § 6; R.C. 1943, § 61-0621; S.L. 1963, ch. 420, § 4; 1983, ch. 680, § 16; 2013, ch. 486, § 2.

61-06-21.1. Transactions of irrigation districts made public records — Grounds for removal of director or officer.

The minutes of all meetings, and all contracts, agreements, leases, and other business transactions of the board of directors of an irrigation district shall be public records and open to inspection by any person interested, or that person’s attorney or agent, at all reasonable times. The terms of any proposed agreement or contract with federal or state agencies shall be deemed a business transaction open to public examination. Refusal on the part of any director or officer of an irrigation district to permit examination of the records of the irrigation district or to give any information available concerning business transactions of the district shall be grounds for removal of such director or officer in an action brought in the district court.

Source:

S.L. 1949, ch. 346, § 1; R.C. 1943, 1957 Supp., § 61-06211.

61-06-22. Directors and officers — Salary, mileage, and expenses.

The compensation for each director per day while performing duties as a member of the board must be fixed by the board of directors but may be no more than sixty-two dollars and fifty cents per day. The allowance for meals and lodging expenses must be at the same rate and under the same conditions as provided for state officials and employees. The allowance for travel expenses must be at the same rate as provided by section 11-10-15 and must be evidenced by a subvoucher or receipt in a manner determined by the board of directors. The salary of the secretary, assessor, and treasurer must be determined by the board of directors.

Source:

S.L. 1917, ch. 115, § 28; 1925 Supp., § 8247a28; R.C. 1943, § 61-0622; S.L. 1947, ch. 372, § 14; 1957 Supp., § 61-0622; S.L. 1963, ch. 420, § 5; 1971, ch. 119, § 3; 1975, ch. 571, § 1; 1979, ch. 639, § 1; 1983, ch. 680, § 17; 1997, ch. 432, § 33.

61-06-23. Officers not to be interested in contract — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

CHAPTER 61-07 Powers of Irrigation Districts

61-07-01. Powers and duties of irrigation district.

Each irrigation district:

  1. Shall be a body corporate.
  2. Shall possess all the powers and duties usual to corporations organized for public purposes and those conferred by the provisions of this title or which may be conferred by law.
  3. May sue and be sued in its corporate name and may institute and maintain any and all actions and proceedings, including suits at law or in equity, necessary or proper, in order to carry out fully the provisions of this chapter, or to enforce, maintain, protect, or preserve any and all rights, privileges, and immunities created by this title, or acquired in pursuance thereof.
  4. May contract and be contracted with.
  5. May hold, lease, own, and possess such real and personal property as shall come into its possession by contract, conveyance, purchase, gift, or otherwise.
  6. Subject to chapter 32-15, may exercise the right of eminent domain for the purpose of acquiring right of way for ditches, flumes, canals, pipelines, and other conveyance systems, sites for dams and reservoirs, wells and well fields, related drainage systems, and for any other purpose or works necessary to establish and construct a complete system of irrigation works.

In all courts, actions, suits, or proceedings, the board of directors may sue, appear and defend, in person or by attorneys, in the name of such irrigation district.

Source:

S.L. 1917, ch. 115, § 12; 1925 Supp., § 8247a12; S.L. 1939, ch. 253, § 14; R.C. 1943, § 61-0701; S.L. 1983, ch. 680, § 18; 2007, ch. 293, § 39.

Cross-References.

Definitions applicable to chapter, see N.D.C.C. § 61-05-01.

Notes to Decisions

Administrative Agency.

Although an irrigation district is a body corporate its board of directors is not an “administrative agency” of state as it lacks statewide jurisdiction. In re Heart River Irrigation Dist., 78 N.D. 302, 49 N.W.2d 217, 1951 N.D. LEXIS 91, 1951 N.D. LEXIS 92 (N.D. 1951).

61-07-02. Legal title to property acquired in corporate name.

The legal title to all property acquired by an irrigation district shall vest in such district in its corporate name.

Source:

S.L. 1917, ch. 115, § 11; 1925 Supp., § 8247a11; S.L. 1939, ch. 253, § 13; R.C. 1943, § 61-0702.

61-07-03. Powers and duties of board of directors.

The board of directors of an irrigation district shall:

  1. Manage and conduct the business affairs of the district.
  2. Make and execute all necessary contracts.
  3. Employ such officers, agents, and employees as may be necessary to conduct efficiently the business of the district and to fix their compensation.
  4. Adopt a seal for the district. The seal shall be kept in the custody of the secretary.
  5. Establish bylaws and rules for distribution to and for the information of electors of the district and water users, and fix charges or rentals to be paid by water users. The bylaws and rules shall be printed in convenient form.
  6. Enter upon any land within the district to make surveys and to locate the main lines and the necessary branches for any canals, pipelines, or other conveyance systems, and maintain and keep in good repair the irrigation works within the district. Its agents and employees shall have the same right.
  7. Acquire by purchase, condemnation in accordance with chapter 32-15, or otherwise:
    1. Rights of way for ditches, canals, pipelines, and other conveyance systems and sites for dams and reservoirs, wells and well fields, and other works for the appropriation of ground and surface water, and for pumping plants.
    2. All lands, easements, and any and all property necessary for the construction, use, maintenance, repair, and improvement of dams, reservoirs, wells and well fields, and other works for the appropriation of ground and surface water, and canals, pipelines, and other conveyance systems.
    3. Electric powerlines for the conveyance of electric power to operate pumping plants and all necessary appurtenances thereto.
    4. Water rights, but the board shall be required to offer an alternative water supply of equal quantity and comparable quality, either through the district works or otherwise, to the holder of any water rights which have been condemned.
  8. Subject to the limitations contained in this chapter and chapter 32-15, acquire by purchase, condemnation, or otherwise, any existing irrigation works for the use of the district.
  9. Submit, whenever the board shall deem it advisable, to the electors of the district, at any regular or special election, any question, proposition, or proposal relative to the affairs of the district.
  10. Accept, on behalf of the district, appointment of the district as fiscal agent of the United States, or of any department or agency thereof, or authorization by the United States, or of any department or agency thereof, to make collections of money for and on behalf of the United States in connection with any federal reclamation or irrigation project. The board shall have full power to do any and all things required by the rules established by any such department or agency of the federal government relative to such project.
  11. Subject to the limitations provided in this title, determine a plan or method for raising funds to finance the cost of constructing irrigation works within the district or to provide funds for the purchase of such irrigation works. The plan may provide for the issuance of bonds, or the issuance of district improvement warrants, or the payment of such construction costs, or purchase price, by creating a fund obtained from water rentals or charges to water users, or for a combination of such methods for raising funds.
  12. Exercise all rights, powers, and authority, express or implied, that may be necessary to do and perform and carry out all of the express purposes of this chapter and of all purposes reasonably implied as incidental thereto.
  13. Enter into contracts and leases as the board determines appropriate with the Garrison Diversion Conservancy District; the water commission of North Dakota; or with the United States of America, its instrumentalities, departments, or agencies, for the purpose of financing the construction of any irrigation works authorized by law, and in such contracts and leases may authorize the Garrison Diversion Conservancy District; the commission; or the United States, its instrumentalities, departments, or agencies, as the case may be, to supervise and approve the construction, maintenance, and operation of such irrigation works, or any part or portion thereof, until such times as any money expended, advanced, or loaned by the commission or by the United States, its instrumentalities, departments, or agencies, and agreed to be repaid thereto by said board, shall have been repaid fully. The board may accept cooperation from the Garrison Diversion Conservancy District; the commission; or from the United States, its instrumentalities, departments, and agencies, in the construction, maintenance, and operation, and in financing the construction of any work authorized by the board. The board shall have full power to do any and all things necessary to avail itself of such aid, assistance, and cooperation under existing or future state laws or federal legislation enacted by the Congress of the United States.
  14. Acquire real property, buildings, improvements, and equipment used or useful in connection with storing, warehousing, distributing, or selling agricultural products, which may be located within or outside the district.

Source:

S.L. 1917, ch. 115, § 9; 1925 Supp., § 8247a9; S.L. 1939, ch. 253, § 10; R.C. 1943, § 61-0703; S.L. 1983, ch. 680, § 19; 1997, ch. 518, § 1; 2007, ch. 293, § 40; 2011, ch. 54, § 12; 2013, ch. 486, § 3.

Cross-References.

Eminent domain, see N.D.C.C. ch. 32-15.

61-07-04. Construction across streams, highways, railroads, and ditches — Right of way.

The board may construct irrigation works across any stream of water, watercourse, street, avenue, highway, railway, canal, ditch, flume, pipeline, or other transportation system or utility, which the route of any canal may intersect or cross in such manner as to afford security for life and property, but the board shall restore the same, when so crossed or intersected, to its former state as near as may be, or in a manner sufficient to avoid unnecessary impairment of its usefulness. Every company whose railroad or utility shall be intersected or crossed by such works shall unite with the board in forming such intersections and crossings, and shall grant the privilege aforesaid. If the board cannot agree with such railroad company, or with the owners and controllers of the property, thing, or franchise to be crossed, upon the amount to be paid on account of such crossing or the point at which or the manner in which the crossing shall be made, the same shall be ascertained and determined in all respects as is provided for the taking of land. The right of way is given, dedicated, and set apart, to locate, construct, and maintain such works over and through any of the lands which are or may be the property of the state. There are given, dedicated, and set apart, for the uses and purposes provided in this chapter, all water and water rights owned by this state within the district.

Source:

S.L. 1917, ch. 115, § 27; 1925 Supp., § 8247a27; R.C. 1943, § 61-0704; S.L. 1983, ch. 680, § 20.

61-07-05. Purchase of land after foreclosure of tax lien.

When the board shall deem it necessary to protect the interests of the district, or of the electors thereof, or to protect the interests of bondholders or other creditors of the district, it, if funds are available for that purpose, may purchase land within the district after foreclosure by the county for unpaid and delinquent taxes and may own and sell any lands thus acquired.

Source:

S.L. 1917, ch. 115, § 9; 1925 Supp., § 8247a9; S.L. 1939, ch. 253, § 10; R.C. 1943, § 61-0705; S.L. 1999, ch. 503, § 42.

Cross-References.

Assessments of irrigation districts as general taxes, see N.D.C.C. § 61-09-15.

61-07-06. Contracts entered into by district — Contracts for materials — Reservations in contracts.

All contracts entered into for any work provided for in this chapter shall be entered into in the name of the district and shall be executed on the part of the district by the chairman of the board of directors and countersigned or attested by the secretary. When the contract is signed by the contractor, it shall be filed in the office of the secretary of the district. Contracts for materials or for construction of any nature shall require the work to be done or the materials to be furnished in accordance with, and pursuant to, plans and specifications on file with the secretary. There shall be reserved in each such contract for construction the right of the board of directors, in case of the improper construction of such work, to suspend work thereon at any time, and to relet the contract therefor, or to order a reconstruction of said work or any part thereof improperly done. Each such contract shall state the time on or before which such work must be completed and shall state how such contract will be paid.

Source:

S.L. 1939, ch. 253, § 12; R.C. 1943, § 61-0706; S.L. 1973, ch. 80, § 20.

61-07-07. Board to formulate general plan of operation — Contents.

As soon as practicable after the organization of an irrigation district, the board of directors, by a resolution entered on its records, shall formulate a general plan of its proposed operation which must state:

  1. What constructed works or other property are proposed to be purchased, the purchase price, what construction work is proposed to be done, and the estimated cost of the construction.
  2. Whether funds to pay the purchase price or cost of construction will be raised by issuing bonds or by creating a fund through the collection of rentals, charges from water users, or by creating a fund by levying assessments against the lands benefited, or whether it is contemplated to raise funds by the use of all or a combination of those methods of raising funds.

Source:

S.L. 1917, ch. 115, § 13; 1925 Supp., § 8247a13; S.L. 1939, ch. 253, § 15; R.C. 1943, § 61-0707; S.L. 1997, ch. 518, § 2.

61-07-08. Surveys, examinations, and plans made to determine cost of construction in district — Department of water resources to prepare report.

To ascertain the cost of any irrigation construction work in a district, the board shall cause such surveys, examinations, and plans to be made as may demonstrate the practicability of the plan and furnish the proper basis for an estimate of the cost of carrying out the plan. All surveys, examinations, maps, plans, and estimates must be made under the direction of a registered professional engineer, who may be an employee of the department of water resources, and must be certified by the registered professional engineer. The board shall submit a copy to the the department of water resources, which shall prepare a summary report and file the report with the board. The report must contain the matter required by the department. Upon receiving the report, the board of directors shall determine the amount of money required to be raised.

Source:

S.L. 1917, ch. 115, § 18; 1925 Supp., § 8247a18; S.L. 1939, ch. 253, § 15; R.C. 1943, § 61-0708; S.L. 1983, ch. 680, § 21; 1997, ch. 518, § 3; 2021, ch. 488, § 126, eff August 1, 2021.

61-07-09. Advertising for bids.

After adopting a plan of irrigation works, the board shall secure bids as provided in chapter 48-01.2. Contracts for the purchase of materials must be awarded to the lowest and best bidder. The person to whom a contract may be awarded shall furnish a bond with good and sufficient sureties, to be approved by the board, payable to such district for its use, in an amount at least equal to the contract price, conditioned for the faithful and complete performance of the contract. The work must be done under the direction and to the satisfaction of the engineer and must be approved by the board. This section does not apply in case of any contract between the district and the United States, or any department, bureau, or agency thereof, or with the state water commission.

Source:

S.L. 1917, ch. 115, § 24; 1925 Supp., § 8247a24; S.L. 1939, ch. 253, § 28; R.C. 1943, § 61-0709; S.L. 1983, ch. 680, § 22; 1995, ch. 443, § 23; 2007, ch. 403, § 19.

61-07-10. Expense of purchasing and acquiring property and constructing irrigation works — Insufficiency of bonds.

The cost and expense of purchasing and acquiring property and of purchasing or constructing the irrigation works and improvements mentioned in this chapter shall be paid out of funds raised for such purpose. In case bonds, or the proceeds from the sale of any series of bonds, are insufficient for the purpose for which they were issued, additional bonds may be issued after submission of the question, at a general or special election, to the electors of the district. Additional improvement warrants may be issued to supplement warrants already authorized and issued. Such bonds and improvement warrants must be paid in the order of their priority.

Source:

S.L. 1917, ch. 115, § 26; 1925 Supp., § 8247a26; S.L. 1939, ch. 253, § 29; R.C. 1943, § 61-0710.

61-07-11. District entering into agreements with others for payment of cost of establishing or constructing works.

Any irrigation district, subject to the approval of the electors at a general or special election, may enter into an agreement or contract with the United States or with any department, bureau, or agency thereof, or with the state water commission, or with any person, firm, corporation, or limited liability company, for the establishment, construction, and completion of the necessary irrigation works, and in such contract or agreement may provide for the payment of the cost of establishing and constructing such works by the levy and collection of assessments against the lands benefited and by annual payments from funds raised by the collection of tolls and water charges paid by persons who have received and used water for the irrigation of their lands.

Source:

S.L. 1917, ch. 115, § 26; 1925 Supp., § 8247a26; S.L. 1939, ch. 253, § 29; R.C. 1943, § 61-0711; S.L. 1993, ch. 54, § 106.

Cross-References.

Changes in district boundaries subject to approval by contracting federal agency, see N.D.C.C. § 61-10-29.

61-07-12. Expenses — How paid.

For the purpose of defraying the expense of organizing the district and the maintenance, operation, management, repair, and improvement of irrigation works, including salaries of officers and employees, the board either may collect water rentals or may levy assessments therefor, or may collect such charges and also levy assessments.

Source:

S.L. 1917, ch. 115, § 26; 1925 Supp., § 8247a26; S.L. 1939, ch. 253, § 29; R.C. 1943, § 61-0712.

Cross-References.

Assessments by irrigation districts, see N.D.C.C. ch. 61-09.

61-07-13. Agreement by board to conform to laws of various departments or agencies to secure financial aid.

For the purpose of obtaining financial aid from the United States, or from any department, bureau, or agency thereof, or from the state water commission, the board of a district may agree to conform to the laws of the United States and to the regulations of any department, bureau, or agency thereof, or may agree to conform to the regulations of the state water commission and to the supervision of such federal agency, bureau, or department or to the supervision of the state water commission, as the case may be.

Source:

S.L. 1917, ch. 115, § 26; 1925 Supp., § 8247a26; S.L. 1939, ch. 253, § 29; R.C. 1943, § 61-0713.

61-07-14. Irrigation districts may accept acts of Congress — Contracting with United States — Provisions of section not a limitation.

Any irrigation district organized under the laws of this state may accept the provisions of any act of the Congress of the United States applicable to such district and may obligate itself to comply with such laws, rules, and regulations as may be promulgated by any department of the United States in pursuance of such acts. An irrigation district contracting with the United States under the provisions of this chapter shall be governed in all matters by the laws of this state relating to irrigation or drainage districts, as the case may be, except in such things as may be provided otherwise, for such district. The provisions of this section shall not limit the rights which any irrigation district has under existing laws to purchase a water supply or otherwise to contract and shall be cumulative thereto.

Source:

S.L. 1917, ch. 115, § 69; 1925 Supp., § 8247a69; R.C. 1943, § 61-0714.

61-07-15. District may obtain financial aid from United States.

Any irrigation district organized under the laws of this state for irrigation purposes may enter into a contract with the United States whereby the bonds of the district are guaranteed by the United States, or financial credit is extended by the United States to the district for the sale, purchase, or use of any irrigation works and related drainage systems, and any other property owned or to be acquired for the use of such district.

Source:

S.L. 1917, ch. 115, § 68; 1925 Supp., § 8247a68; R.C. 1943, § 61-0715; S.L. 1983, ch. 680, § 23.

61-07-16. Irrigation district shall provide for proper drainage of lands — Payment.

Any irrigation district organized under the provisions of this title shall provide for the proper drainage of any and all lands embraced within its limits which are, or have been, subirrigated by reason of the lawful use of water from its canal by the owner or lessee of the lands subirrigated, or from any cause which is not the fault, or which does not have the consent, of such owner or lessee. For such purpose, such district shall have all the authority granted in this title to:

  1. Levy special assessments or otherwise provide funds necessary properly to drain such lands;
  2. Enter upon lands for the purpose of making surveys;
  3. Subject to chapter 32-15, exercise the right of eminent domain;
  4. Contract for the construction of necessary drains; and
  5. Extend such drains outside of the limits of such district for the purpose of conducting the drainage water to other lands upon which the same may be used lawfully or to return the same to some natural watercourse.

The powers granted by this section shall include the power to enter into a contract with the United States to carry out and effectuate all proper drainage of the district, or any part thereof, and any such contract shall be treated to all intents and purposes as if made under section 61-07-14.

Source:

S.L. 1917, ch. 115, § 31; 1925 Supp., § 8247a31; R.C. 1943, § 61-0716; S.L. 1983, ch. 680, § 24; 2007, ch. 293, § 41.

Notes to Decisions

Nonirrigable Tracts.

Fact that district may need rights-of-way and sites for drains and irrigation structures affords no justification for denying petition for exclusion of nonirrigable tracts; where acquisition of such lands is necessary district must acquire them in manner provided by statute. In re Heart River Irrigation Dist., 78 N.D. 302, 49 N.W.2d 217, 1951 N.D. LEXIS 91, 1951 N.D. LEXIS 92 (N.D. 1951).

61-07-17. Apportionment of water when supply insufficient.

In case the water supply shall not be sufficient to supply continuously the lands susceptible of irrigation therefrom, the board shall apportion in a just and equitable proportion, a certain amount of such water upon certain or alternate days to different localities as in its judgment may be best for the interests of all parties concerned, and with due regard to the legal and equitable rights of all.

Source:

S.L. 1917, ch. 115, § 32; 1925 Supp., § 8247a32; R.C. 1943, § 61-0717.

61-07-18. Duty of board to provide water supply.

When the water supply of an irrigation district can be applied beneficially to the lands in the district, the board shall keep the waters flowing through the irrigation works under its control to the full capacity of the irrigation works in times of sufficient water supply but without interfering with the rights of senior appropriators.

Source:

S.L. 1917, ch. 115, § 33; 1925 Supp., § 8247a33; R.C. 1943, § 61-0718; S.L. 1983, ch. 680, § 25.

61-07-19. Petition for specific orders or changes in canals or other conveyance systems — Methods.

Upon the filing of a petition in the office of the board of any irrigation district, signed by electors who own a majority of the total number of acres [hectares] subject to assessment for construction or other costs and requesting the board adopt rules permitting and providing for any of the following specific orders or changes in the method of operating its canal, pipeline, or other conveyance system, the board immediately shall provide for the adoption and enforcement of the rules:

  1. That a measuring device of a type approved by the department of water resources be placed in or near the headgate of any main diverting gate of the main canal, or in any pipeline or other main conveyance system so the district will keep a continuous record of the amount of water received into the canal or pipeline for the use of the lands in the district.
  2. That a measuring device of a type approved by the department of water resources be placed in the headgates or valves of all main laterals and distributing laterals within the district from and by which water is diverted to tracts or units of twenty acres [8.09 hectares] or more for the purpose of determining at all times the amount of water going to or being received upon the tracts of land, and that the district shall keep a separate and correct record of the amount of water delivered through each of the headgates and valves at all times and file the record in the office of the board for public inspection.

Source:

S.L. 1917, ch. 115, § 33; 1925 Supp., § 8247a33; R.C. 1943, § 61-0719; S.L. 1963, ch. 420, § 6; 1983, ch. 680, § 26; 2021, ch. 488, § 127, eff August 1, 2021.

61-07-20. Provisions of title not to take away vested rights.

None of the provisions of this title relating to irrigation works shall be deemed to authorize the district or any person to divert the waters of any river, creek, stream, canal, or ditch from its channel, whereby the vested rights of any person having any interest in such river, creek, stream, canal, or ditch, or the waters thereof, are invaded or interfered with unless previous compensation is ascertained and paid therefor, under the laws of this state authorizing the taking of private property for public use. However, if the district exercises the authority of eminent domain against any vested water rights of any person, the district shall be required to offer an alternative water supply of equal quantity and comparable quality, either through the district works or otherwise, to such person.

Source:

S.L. 1917, ch. 115, § 34; 1925 Supp., § 8247a34; R.C. 1943, § 61-0720; S.L. 1983, ch. 680, § 27.

61-07-21. Incurring liability in excess of provisions of chapter prohibited — Exception.

Except as otherwise provided in section 61-07-16, the board or other officers of the district may not incur any debt or liability whatever, either by issuing bonds or otherwise, in excess of the express provisions of this title, and any debt or liability incurred in excess of such express provisions shall be and remain absolutely void.

Source:

S.L. 1917, ch. 115, § 31; 1925 Supp., § 8247a31; R.C. 1943, § 61-0721.

61-07-22. Commencement of special proceedings to confirm contracts, special assessment, or other action.

The board of any irrigation district organized under the provisions of this title, before issuing any bonds or improvement warrants of such district, shall, and in its discretion, before making any contract or levying any assessment or taking any special action, may, commence a special proceeding in and by which the proceedings of such board and of such district, the making of any contract or the levying of any assessment or the taking of any special action, shall be judicially examined, approved, and confirmed, or disapproved and disaffirmed.

Source:

S.L. 1917, ch. 115, § 59; 1925 Supp., § 8247a59; S.L. 1939, ch. 253, § 36; R.C. 1943, § 61-0722.

61-07-23. Petition by board for court to examine and approve contracts or assessments — Contents of petition.

The board of an irrigation district, if deemed advisable, may file, or cause to be filed, in the district court of any county in which the lands of the district are situated, a petition praying that the proceedings had for the issuance of bonds or improvement warrants, or that the proceedings had preliminary to the making of any contract or for levying assessments or taking any special action, be examined, approved, and confirmed by the court. Such petition shall state the facts concerning the proceedings had for the issuance of bonds or improvement warrants, the making of any contract, levying any assessment, or any special action, of the board, as the case may be, and shall state generally that the irrigation district was organized and that the directors were elected and qualified, but the petition need not set forth the proceedings resulting in the organization of the district or the election of the directors.

Source:

S.L. 1917, ch. 115, § 60; 1925 Supp., § 8247a60; S.L. 1939, ch. 253, § 37; 1941, ch. 298, § 11; R.C. 1943, § 61-0723.

Notes to Decisions

Federal Contract.

Legally organized irrigation district is qualified to enter into contract with United States under provisions of this section. In re Ft. Clark Irrigation Dist., 78 N.D. 107, 48 N.W.2d 741, 1951 N.D. LEXIS 77 (N.D. 1951).

61-07-24. Hearing of petition — Notice of filing and hearing.

The court shall fix the time for the hearing of the petition provided for in section 61-07-23 and shall order the clerk of court to give and publish a notice of the filing of the petition, stating the time when and the place where the court will hear the petition, and stating further that any person interested in the organization of the district, or in the proceedings for the issuance of bonds or improvement warrants, or in the assessments levied, or in the special action taken by the board, as the case may be, on or before the day fixed for hearing of the petition, may answer the petition. The petition may be referred to and described in the notice as the petition of _________ (name of petitioner) requesting that the proceedings set forth therein be examined, approved, and confirmed by the court. The notice shall be given by publishing the same in the official newspaper of the county in which the petition is filed, once each week for two consecutive weeks. The hearing shall be held, in the discretion of the court, not less than fifteen days nor more than sixty days after the last publication of the notice.

Source:

S.L. 1917, ch. 115, § 61; 1925 Supp., § 8247a61; S.L. 1939, ch. 253, § 38; R.C. 1943, § 61-0724; S.L. 1971, ch. 588, § 7; 1983, ch. 82, § 147.

61-07-25. Answer to petition — Defense by person interested.

Any person interested in the district or in the issue or sale of the bonds may answer the petition. The provisions of title 28 and the North Dakota Rules of Civil Procedure relating to the answer to a complaint shall be applicable to an answer to a petition. The person answering the petition shall be the defendant in the special proceeding and the board shall be the plaintiff. Every material statement of the petition not specifically controverted by the answer, for the purpose of such special proceeding, shall be taken as true. Each person failing to answer the petition shall be deemed to admit as true all the material statements of the petition. The rules of pleading and practice provided by title 28 and the North Dakota Rules of Civil Procedure which are not inconsistent with the provisions of this chapter are applicable to the special proceeding provided for in this chapter.

Source:

S.L. 1917, ch. 115, § 62; 1925 Supp., § 8247a62; R.C. 1943, § 61-0725.

61-07-26. Powers of court upon trial — Amendment of petition.

At the time and place set for the hearing provided for in section 61-07-24, the court shall find and determine whether the notice of the filing of such petition has been posted and published. When the court has determined that it has jurisdiction to hear the petition, it shall proceed with the hearing and shall conduct the same as in the case of a trial of an equity action without a jury. The court shall examine into and determine the legality and validity of proceedings for the organization of the district from and including the petition for the organization thereof, and all matters affecting the legality or validity of proceedings for the issuance of bonds or improvement warrants, or the making of contracts by the board of directors, and the levying of assessments. The court shall disregard any error, irregularity, or omission which does not affect the substantial rights of the parties to such hearing. The court shall permit the petition to be amended so as to conform to the evidence and facts presented at such hearing.

Source:

S.L. 1917, ch. 115, § 63; 1925 Supp., § 8247a63; S.L. 1939, ch. 253, § 39; R.C. 1943, § 61-0726.

61-07-27. Conclusion of hearing — Findings — Decree — Costs of hearing — Filing copies of findings.

Upon the conclusion of the hearing provided for in section 61-07-24, the court shall determine the legality and validity of the proceedings for the issuance of bonds or improvement warrants, the making of any contract, or the levying of any assessments, as the case may be, and shall determine the validity and legality of any other matter properly before the court. The court shall prepare its findings of fact, conclusions of law, and any necessary order. The court may apportion the costs of the proceeding to the parties. The secretary of the board of directors of the district shall file with the department of water resources a certified copy of the court’s findings of fact, conclusions of law, and order.

Source:

S.L. 1917, ch. 115, § 63; 1925 Supp., § 8247a63; S.L. 1939, ch. 253, § 39; R.C. 1943, § 61-0727; 2021, ch. 488, § 128, eff August 1, 2021.

61-07-28. Procuring water supply from district outside of state — Validity and legality.

When any irrigation district shall find it necessary to procure its supply of water for the irrigation of the lands within the district from outside the boundaries of this state, such district may enter into an agreement or contract with any state board, commission, or bureau, or with any person, association, company, corporation, limited liability company, or irrigation district, having the control and jurisdiction over the water of such other state, for water rights therein or for supplying the district with water sufficient for its irrigation needs. The making of such contract and the issuance of bonds or improvement warrants and the levying of assessments, or other method agreed upon for the payment of rights, franchises, or water charges to obtain the required supply of water shall be deemed valid, and of full force and effect, and shall have the same validity and legality as though the same rights and franchises existed wholly within this state.

Source:

S.L. 1917, ch. 115, § 64; 1925 Supp., § 8247a64; S.L. 1939, ch. 253, § 40; R.C. 1943, § 61-0728; S.L. 1993, ch. 54, § 106.

61-07-29. Board may enter into a contract for supply of water — Payment — Source.

The board of any irrigation district in this state may enter into a contract for a supply of water with the United States, or with any department or agency thereof, or with the state water commission, or with any person, association, firm, corporation, or limited liability company, or with another irrigation district, for the irrigation of lands within the district. Under such contract, the board may agree to pay for the water furnished or delivered to the district from collections obtained from tolls or charges paid by water users and from assessments levied against the lands irrigated. The source of supply of such water may be either within or without the boundaries of this state. Such water supply may be the entire supply for such district or may supplement an appropriation of water already made by said district.

Source:

S.L. 1917, ch. 115, § 65; 1925 Supp., § 8247a65; S.L. 1939, ch. 253, § 41; R.C. 1943, § 61-0729; S.L. 1993, ch. 54, § 106.

61-07-30. Contract for payment for supply of water — Assessments may be made against lands.

If a contract, made and entered into by any irrigation district pursuant to the provisions of section 61-07-29, provides for the payment of the entire purchase price of an annual supply of water, the board, if other revenues are not available for the payment of such purchase price, shall adopt a resolution that assessments be made against the lands within the district sufficient to produce the required amount. Such amount shall be apportioned, assessed, and levied at the time specified in this chapter for the apportionment and levy of assessments.

Source:

S.L. 1917, ch. 115, § 66; 1925 Supp., § 8247a66; S.L. 1939, ch. 253, § 43; R.C. 1943, § 61-0730.

61-07-31. Contract for supply of water extending over one year approved at election — Regulations governing election.

If a contract for the supplying of water provides for a payment to be made extending for a period of more than one year from the date of making such contract, the board of such irrigation district shall submit such contract to the legal voters of such district at any general election, or at a special election called for the approval or disapproval of the contract. If a special election is called for such purpose, the notice of election, the conduct of said election, and the canvass of the votes, so far as practicable, shall be the same as in a regular election of the district. The notice of such election need not give the entire contract, but shall be sufficient if it shall state in a general way the substance of the proposed contract. The ballot at such election shall be in substantially the following form:

For approval of contract for water supply • Against approval of contract for water supply •

Click to view

If a majority of the electors voting on said proposition vote for approval of such contract, the board shall enter into such contract and thereafter, at the time the other taxes of the district are levied, shall levy a tax on the taxable property of the district sufficient to pay the amount due on said contract and to become due on said contract before the next annual levy in said district.

Source:

S.L. 1917, ch. 115, § 67; 1925 Supp., § 8247a67; R.C. 1943, § 61-0731; S.L. 1971, ch. 588, § 8.

61-07-32. Liability for failure to deliver water.

Any irrigation district within this state shall be liable in damages for negligence in delivering or failing to deliver water to the users from its canal, but such liability cannot be enforced unless the party suffering such damage, within thirty days after such district shall fail to deliver water, shall serve a notice in writing on the chairman of the board of such district, setting forth particularly the acts committed or the omission of duties to be performed on the part of the district which are claimed to constitute such negligence or omission, and stating that the party expects to hold such district liable for whatever damages may result. Such action shall be brought within one year from the time the cause has accrued.

Source:

S.L. 1917, ch. 115, § 75; 1925 Supp., § 8247a75; R.C. 1943, § 61-0732.

61-07-33. Appeal to district court — Time — Undertaking required — Docketing.

An appeal may be taken to the district court from any order or decision of the board of an irrigation district, by any person who is aggrieved thereby. The appeal must be taken in accordance with the procedure provided in section 28-34-01. To effect an appeal, an undertaking must be executed by the appellant and sufficient surety conditioned that the appellant will prosecute such appeal without delay and will pay all costs adjudged against the appellant in the district court. The undertaking must be made in favor of the irrigation district as the obligee and may be enforced by the district. The appeal must be taken to the district court of the county in which the land claimed to be affected adversely by the order or decision appealed from is situated, and if the land is situated in more than one county, the appeal may be taken to the district court of any county in which any part of the land is situated. Any appeal thus taken must be docketed in the district court as any civil cause commenced in the district court is docketed and must be heard and determined without a jury. Appeals to the supreme court may be taken by the irrigation district or any other party to the cause from any judgment entered in the district court in any such cause and from any order of said court if an appeal would lie from such an order if the same were entered by the court in any other civil action.

Source:

S.L. 1939, ch. 253, § 42; R.C. 1943, § 61-0733; S.L. 1951, ch. 337, § 1; 1957 Supp., § 61-0733; S.L. 1983, ch. 680, § 28; 1989, ch. 83, § 23.

Notes to Decisions

Parties.

An irrigation district, being body corporate, is “person” within meaning of this section and as such has an interest in subject matter of action. In re Heart River Irrigation Dist., 77 N.D. 827, 47 N.W.2d 126, 1951 N.D. LEXIS 116 (N.D. 1951).

Time for Appeal.

Time for appeal from order of board of directors of an irrigation district retaining therein lands sought to be excluded therefrom does not begin to run until order has been signed by directors, entered on minutes of board and recorded in office of register of deeds [now recorder]. In re Heart River Irrigation Dist., 78 N.D. 302, 49 N.W.2d 217, 1951 N.D. LEXIS 91, 1951 N.D. LEXIS 92 (N.D. 1951).

Trial De Novo.

Statute is mandatory that cause be tried de novo in district court. In re Heart River Irrigation Dist., 77 N.D. 827, 47 N.W.2d 126, 1951 N.D. LEXIS 116 (N.D. 1951).

Upon trial de novo in district court, on an appeal from an order of board of directors of an irrigation district, pursuant to provisions of this section, trial court is not limited to consideration of record made before board, but may receive and consider in addition thereto any other competent evidence, oral or documentary, relevant and pertinent to issue. In re Heart River Irrigation Dist., 78 N.D. 302, 49 N.W.2d 217, 1951 N.D. LEXIS 91, 1951 N.D. LEXIS 92 (N.D. 1951).

CHAPTER 61-08 Fiscal Affairs of Irrigation Districts

61-08-01. Resolution to institute initial proceedings for bonds — Contents — Adoption.

Proceedings for the issuance of bonds by an irrigation district must be instituted by the adoption of an initial resolution by the board of directors of the district. The initial resolution must state:

  1. The maximum principal amount of bonds proposed to be issued.
  2. The purpose for which the bonds are proposed to be issued.
  3. The total amount of bonded indebtedness, if any, of the district.
  4. Any other statement of fact deemed advisable by the board.

The initial resolution may be adopted by a majority of the board at any regular meeting or at any special meeting of which the prescribed notice has been given.

Source:

S.L. 1939, ch. 253, § 16, subss. a, b; R.C. 1943, § 61-0801; S.L. 1997, ch. 518, § 4.

Cross-References.

Definitions applicable to chapter, see N.D.C.C. § 61-05-01.

Transactions of irrigation districts are public records, see N.D.C.C. § 61-06-21.1.

61-08-02. Adopting initial resolutions by board — Date of election — Contents of resolution — Conduct of election.

After the adoption of an initial resolution as provided in section 61-08-01, the board, by a resolution, shall provide for submitting to the electors of the district the question whether the initial resolution providing for the issuance of bonds shall be approved. The date of such election shall not be less than twenty days after the adoption of such initial resolution by the board. The board, in such resolution, shall designate the date of such election, the polling hours, and polling place thereof. Such election shall be conducted and the returns made and canvassed as in the case of a regular election of the district.

Source:

S.L. 1917, ch. 115, § 13; 1925 Supp., § 8247a13; S.L. 1939, ch. 253, § 17; R.C. 1943, § 61-0802; S.L. 1971, ch. 588, § 9.

Cross-References.

Irrigation district elections, see N.D.C.C. §§ 61-06-09 to 61-06-20.

61-08-03. Notice of election — Contents.

A notice of the election containing a complete copy of the initial resolution provided for in section 61-08-01 shall be given in the manner provided for a regular election of the district.

Source:

S.L. 1917, ch. 115, § 13; 1925 Supp., § 8247a13; S.L. 1939, ch. 253, § 17; R.C. 1943, § 61-0803; S.L. 1971, ch. 588, § 10.

Cross-References.

Notice of regular district elections, see N.D.C.C. § 61-06-10.

61-08-04. Ballot for election — Contents — Spoiled or blank ballots not counted.

The ballot for a bond election shall be written or printed and shall state the question in substantially the following form:

Shall the irrigation district issue its bonds in the amount of not to exceed $ (here insert the amount) for the purpose of (here insert the purpose)? Yes • No •

Click to view

Spoiled or blank ballots cast at such election shall not be counted either for or against the proposed issue.

Source:

S.L. 1917, ch. 115, § 13; 1925 Supp., § 8247a13; S.L. 1939, ch. 253, § 17; R.C. 1943, § 61-0804.

61-08-05. Majority of votes favoring issuance of bonds — Duty of board.

If a majority of the votes cast at a bond election are in favor of the proposal to issue bonds as stated in the initial resolution, the board of directors shall proceed to sell, issue, and deliver such bonds as provided in this chapter.

Source:

S.L. 1917, ch. 115, § 14; 1925 Supp., § 8247a14; S.L. 1939, ch. 253, § 18, subs. 1; R.C. 1943, § 61-0805; S.L. 1983, ch. 680, § 29.

61-08-06. Bonds — Terms.

Bonds issued by any irrigation district under the provisions of this chapter must be in the denominations and form, be subject to redemption with or without premium, and be subject to any other terms or conditions as the board of directors may determine, and must mature in not more than forty years from the date of the bonds. If the maturities are serial, the first installment of principal must fall due not more than three years, and the last installment not more than forty years, from the date of the bonds.

Source:

S.L. 1939, ch. 253, § 16, subs. c; R.C. 1943, § 61-0806; S.L. 1997, ch. 518, § 5.

61-08-07. Bonds — Rate of interest.

Every bond provided for in this chapter must be a negotiable instrument and must bear interest at a rate or rates resulting in an average annual net interest rate which must not exceed twelve percent per annum if the bonds are sold at private sale. There is no interest rate ceiling on bonds sold at public sale or to the state of North Dakota or any of its agencies or instrumentalities. Each bond must specify the time and place of payment of the principal.

Source:

S.L. 1917, ch. 115, § 14; 1925 Supp., § 8247a14; S.L. 1939, ch. 253, § 18, subs. 2; R.C. 1943, § 61-0807; S.L. 1971, ch. 249, § 28; 1981, ch. 269, § 26; 1997, ch. 518, § 6.

61-08-08. Denominations of bonds — Payable in lawful money of United States.

The entire issue of bonds may be composed of bonds of a single denomination or of two or more denominations. Such bonds shall recite that they are payable in lawful money of the United States.

Source:

S.L. 1917, ch. 115, § 14; 1925 Supp., § 8247a14; S.L. 1939, ch. 253, § 18, subs. 3; R.C. 1943, § 61-0808.

61-08-09. Execution of bonds — Validity of bonds not impaired by change in officers.

The bonds issued under the provisions of this chapter must be executed in the name of and for the district by the manual or facsimile signatures of the chairman and secretary of the board. The validity of every bond so executed is not impaired by the fact that a subscribing or attesting officer has ceased to be an officer of the district before delivery to the purchaser.

Source:

S.L. 1917, ch. 115, § 14; 1925 Supp., § 8247a14; S.L. 1939, ch. 253, § 18, subs. 4; R.C. 1943, § 61-0809; S.L. 1997, ch. 518, § 7.

61-08-10. Registration of bond by secretary — Contents — Copy filed with county auditor — Secretary to endorse. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-11. Cancellation of bonds authorized but not paid — Destruction of bonds — Affidavit of destruction — Filing. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-12. Sale of bonds — Contents of notice.

Bonds may be sold at private sale without notice or at public sale after a notice calling for bids has been published at least once in the official newspaper of each county in which the district is situated not less than fifteen days nor more than thirty days before the date specified for receiving bids. The notice may be in any form but must specify the amount of bonds offered for sale and the date or dates of the maturity thereof, and the notice must specify that the bids must be sealed and in writing and must state the time when and place where bids will be received and will be opened.

Source:

S.L. 1917, ch. 115, § 14; 1925 Supp., § 8247a14; S.L. 1939, ch. 253, § 18, subs. 6; R.C. 1943, § 61-0812; S.L. 1971, ch. 249, § 29; 1983, ch. 82, § 148; 1983, ch. 680, § 30; 1997, ch. 518, § 8.

Cross-References.

Official newspaper of county, see N.D.C.C. ch. 46-06.

61-08-13. Opening bids for bond issues — Record of bids kept — Bids accompanied by check.

At the time specified for opening the bids for bonds, the secretary of the board publicly shall open the bids in the presence of the board, and after the bids have been opened, the secretary shall enter in a permanent record the amount and rate of interest of each bid and the name and address of the bidder. Each bid must be accompanied by a certified check, cashier’s check, surety bond, or bank draft in the amount of not less than one percent of the bid.

Source:

S.L. 1917, ch. 115, § 14; 1925 Supp., § 8247a14; S.L. 1939, ch. 253, § 18, subs. 6; R.C. 1943, § 61-0813; S.L. 1997, ch. 518, § 9.

61-08-14. Awarding sale of bond issue — Rejecting bids.

The board of directors shall award the sale of bonds to the bidder who agrees to purchase them upon the terms most favorable to the district, except that the board may reject any and all bids. No sale may be for less than ninety-eight percent of the par value and accrued interest on the bonds.

Source:

S.L. 1917, ch. 115, § 14; 1925 Supp., § 8247a14; S.L. 1939, ch. 253, § 18, subs. 7; R.C. 1943, § 61-0814; S.L. 1997, ch. 518, § 10.

61-08-15. Officer of irrigation district accepting commission or compensation in regard to bonds — Misdemeanor. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

61-08-16. Registration of bearer bonds — Transfer must be recorded in register — Registration not to affect negotiability of coupons. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-17. When issuance of district improvement warrants permissible. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-18. Use of district improvement warrants — Assessments levied to raise funds to pay improvement warrants. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-19. Improvement warrants — Amount — When payable — Maturity. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-20. Interest on warrants — Signatures — Contents. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-21. Registration of warrants by secretary — Filing copy of record in county auditor’s office. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-22. Bonds may be secured by trust indenture — Powers vested in trustee.

In the discretion of the board, bonds may be secured by a trust indenture by and between the district and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or outside this state. The board may vest in the trustee the right to enforce any covenant made to secure or to pay the bonds.

Source:

S.L. 1917, ch. 115, § 15; 1925 Supp., § 8247a15; S.L. 1939, ch. 253, § 20, subs. 2; R.C. 1943, § 61-0822; S.L. 1997, ch. 518, § 11.

61-08-23. Where money received from bond issue placed — Lien on money.

All money received from any bond issue must be placed in a fund and applied solely for the purpose for which it was borrowed and for no other purpose except that the money may be temporarily invested in securities approved by the board. A lien is granted upon the money until so applied, in favor of the owners or holders of the bonds or in favor of the trustee appointed in connection with the bonds.

Source:

S.L. 1917, ch. 115, § 15; 1925 Supp., § 8247a15; S.L. 1939, ch. 253, § 20, subs. 3; R.C. 1943, § 61-0823; S.L. 1997, ch. 518, § 12.

61-08-24. Board may appoint fiscal agent — Who may be.

The board, in its discretion, may appoint a fiscal agent located in some city within or without this state. Every such fiscal agent shall be an incorporated bank or trust company authorized by the laws of the United States or of the state in which it is located to do a banking or trust company business.

Source:

S.L. 1917, ch. 115, § 15; 1925 Supp., § 8247a15; S.L. 1939, ch. 253, § 20, subs. 4; R.C. 1943, § 61-0824.

Cross-References.

Fiscal agent of United States, district as, see N.D.C.C. § 61-07-03.

61-08-25. Bonds and contracts payable from assessments of real property and from water charges.

Bonds issued by any irrigation district, and the interest thereon, and contracts not payable in bonds, made and entered into by the district for the acquisition of irrigation works already constructed, or for the establishment and construction of irrigation works, or any part thereof, must be paid from the revenue obtained from special assessments upon the real property of the district or from any other revenue available for that purpose obtained from charges to water users or from the sale of water to any person, firm, corporation, limited liability company, municipality, or other irrigation district, or by a combination of special assessments and water charges.

Source:

S.L. 1917, ch. 115, § 15; 1925 Supp., § 8347a15; S.L. 1939, ch. 253, § 20; subs. 1; R.C. 1943, § 61-0825; S.L. 1983, ch. 680, § 31; 1993, ch. 54, § 106; 1997, ch. 518, § 13.

Cross-References.

Assessments by irrigation districts, see N.D.C.C. ch. 61-09.

61-08-26. County treasurer to be custodian of funds.

The county treasurer shall act as the custodian of sinking funds, or funds created for the payment of bonds, except that in case an irrigation district is located in more than one county the board, by recorded resolution, shall designate the county treasurer who shall act as the custodian of the funds. Upon the adoption of the resolution, the county treasurer so designated shall act as the custodian. A copy of the resolution and a copy of each and every contract, trust agreement, or trust indenture relating to the issuance and payment of bonds must be filed with the county treasurer.

Source:

S.L. 1917, ch. 115, § 23; 1925 Supp., § 8247a23; S.L. 1939, ch. 253, § 27; R.C. 1943, § 61-0826; S.L. 1997, ch. 518, § 14.

61-08-27. District treasurer to remit moneys to county treasurer — Crediting proper fund.

The district treasurer shall remit to the county treasurer all moneys received by the treasurer in payment of assessments levied for sinking funds or for the payment of bonds. The district treasurer also shall remit to the county treasurer moneys raised from water rentals or water charges, when directed to do so by the board, and the district treasurer shall designate the fund or funds to which the moneys belong, except that all moneys, from whatever source derived, obligated under the terms of any contract, or agreement made and entered into by the district, to meet payments as they become due, shall be paid and remitted to the county treasurer and shall be credited by the county treasurer to the proper fund.

Source:

S.L. 1917, ch. 115, § 23; 1925 Supp., § 8247a23; S.L. 1939, ch. 253, § 27; R.C. 1943, § 61-0827; S.L. 1997, ch. 518, § 15.

61-08-28. Payment of bonds and interest.

The county treasurer shall pay the principal of, premium, if any, and interest on the bonds upon maturity, redemption, or purchase in the open market from any moneys in the fund created for the payment thereof. The county treasurer may disburse moneys in the fund to the fiscal agent or trustee appointed by the board for the purpose of paying the principal of, premium, if any, and interest on the bonds for which the fund was created, without any authorization from the board.

Source:

S.L. 1917, ch. 115, § 23; 1925 Supp., § 8247a23; S.L. 1939, ch. 253, § 27; R.C. 1943, § 61-0828; S.L. 1997, ch. 518, § 16.

61-08-29. Claims paid by district treasurer — Insufficient funds — Verification of claims.

No claim, other than payments of principal of, premium, if any, or interest on bonds, shall be paid by the district treasurer until the claim has been allowed by the board, and only upon warrants signed by the president and countersigned by the secretary. If the treasurer does not have sufficient money on hand to pay a warrant when it is presented for payment, the treasurer shall endorse thereon “Not paid for want of funds” and the date when so presented, over the treasurer’s signature. All claims against the district must be certified the same as claims filed against a county. The board may require any claim to be verified. The secretary of the district may administer an oath to the person verifying a claim.

Source:

S.L. 1917, ch. 115, § 25; 1925 Supp., § 8247a25; R.C. 1943, § 61-0829; S.L. 1997, ch. 518, § 17.

Cross-References.

Payment and registration of warrants, see N.D.C.C. ch. 21-01.

61-08-30. Board may withdraw funds from district and deposit with county treasurer — Duty of treasurer.

The board may draw from time to time from the construction fund and deposit in the county treasury of the county where the office of the board is situated any sum in excess of the sum of twenty-five thousand dollars. The county treasurer shall receive and receipt for the same and place the same to the credit of the district, and the county treasurer shall be responsible upon the county treasurer’s official bond for the safekeeping and disbursement of the same as provided in this chapter. The county treasurer shall pay out the same, or any part thereof, to the treasurer of the district only upon the order of the board, signed by the president, and attested by the secretary.

Source:

S.L. 1917, ch. 115, § 25; 1925 Supp., § 8247a25; R.C. 1943, § 61-0830.

61-08-31. County treasurer to make report to board monthly.

The county treasurer shall report in writing to the district on the second Monday in each month the amount of money belonging to the district in the county treasury, the amount of receipts for the month preceding, and the amount of the moneys paid out and assessments against each tract or parcel of land within the district which were paid in the preceding month. Such report shall be verified and filed with the secretary of the board.

Source:

S.L. 1917, ch. 115, § 25; 1925 Supp., § 8247a25; R.C. 1943, § 61-0831; S.L. 1963, ch. 420, § 7.

61-08-32. District treasurer to make report to board — Verifying and filing.

The district treasurer shall report to the board in writing as often as the board may require in its bylaws, the amount of money in the district treasury, the amount of receipts since the previous report, and the amount and items of expenditures. Such report shall be verified and filed with the secretary of the board.

Source:

S.L. 1917, ch. 115, § 25; 1925 Supp., § 8247a25; R.C. 1943, § 61-0832; S.L. 1983, ch. 680, § 32.

61-08-33. District treasurer to keep warrant register — Contents — How warrants payable. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-34. Refunding irrigation district bonds — Negotiating new bonds.

Each irrigation district in this state that has issued or shall issue bonds or improvement warrants purporting to have been issued for any purpose authorized by law, which bonds or improvement warrants have been sold and delivered to purchasers for value and constitute an existing indebtedness, may at any time after or before maturity refund the same and issue and sell refunding bonds in amounts, bearing interest at rates, and maturing on dates as determined by the board.

Source:

S.L. 1947, ch. 371, § 1; R.C. 1943, 1957 Supp., § 61-0834; S.L. 1997, ch. 518, § 18.

61-08-35. Procedure used in issuing refunding bonds.

When in the judgment of the board of directors of an irrigation district it is in the best interests of the irrigation district to issue its bonds for the purpose of refunding or paying outstanding indebtedness as provided in section 61-08-34, refunding bonds may be issued pursuant to resolutions duly passed at a regular or special meeting of the board of directors. The refunding bonds may be sold at public or private sale and must be signed in the same manner as the bonds to be refunded or by the officers of the irrigation district as may be designated in the resolutions providing for their issuance.

Source:

S.L. 1947, ch. 371, § 2; R.C. 1943, 1957 Supp., § 61-0835; S.L. 1997, ch. 518, § 19.

61-08-36. Refunding bonds — When payable — Interest — Denominations — Interest coupons. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-37. Refunding bonds may be exchanged or sold. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-38. Amount of refunding bonds issued. [Repealed]

Repealed by S.L. 1997, ch. 518, § 24.

61-08-39. Assessments — Proceeds — Levy.

All assessments made by an irrigation district for the payment of the bonds or improvement warrants to be refunded must inure to the benefit of the holders of the refunding bonds and the proceeds of the assessments must be utilized for the purpose of paying the interest and principal of the refunding bonds, and the board of directors of the irrigation district shall levy an assessment against the lands of the district, as provided by law for levying assessments, sufficient to pay the interest on the refunding bonds and to create a sinking fund to retire the refunding bonds at maturity.

Source:

S.L. 1947, ch. 371, § 6; R.C. 1943, 1957 Supp., § 61-0839; S.L. 1997, ch. 518, § 20.

Cross-References.

Assessments by irrigation districts, see N.D.C.C. ch. 61-09.

61-08-40. Provisions relating to payment of bonds applicable to refunding bonds.

All provisions of law relating to the assessment in irrigation districts and the collection thereof for the purpose of raising funds for the payment of bonds of an irrigation district shall be applicable to bonds issued under the provisions of sections 61-08-34 through 61-08-39.

Source:

S.L. 1947, ch. 371, § 7; R.C. 1943, 1957 Supp., § 61-0840.

61-08-41. Issuance of revenue bonds.

The acquisition, construction, reconstruction, improvement, betterment, or extension of any revenue-producing facility, and the issuance of revenue bonds in anticipation of the collection of the revenues of the facility, may be authorized by resolution adopted by the affirmative vote of a majority of the board of directors. The amount of the bonds authorized may not exceed the amount authorized by the electors of the district as provided in this chapter.

Source:

S.L. 1997, ch. 518, § 21.

61-08-42. Payment and security for revenue bonds.

Revenue bonds issued under this chapter may not be payable from nor charged upon any funds other than the revenue pledged to the payment of the bonds, nor is the district issuing the bonds subject to any pecuniary liability on the bonds. A holder of the bonds does not have the right to compel the levy of special assessments to pay the bonds or the interest, or to enforce payment of the bonds against any property of the district other than property pledged as security for the bonds. Each revenue bond issued under this chapter must recite in substance that the bond, including interest on the bond, is payable solely from the revenue pledged to the payment of the bond, and that the bond does not constitute a debt of the district within the meaning of any constitutional or statutory limitation.

Source:

S.L. 1997, ch. 518, § 21.

CHAPTER 61-09 Assessments in Irrigation Districts

61-09-01. District assessor to examine tracts of land to fix annual assessments levied thereon.

Between the first Monday in March and the first Monday in June of each year, the district assessor shall examine each tract of land or legal subdivision of land in the district, including entered and unentered public lands of the United States, subject to entry under any act of Congress, and all other lands publicly or privately owned. In determining irrigation or drainage benefits, the district assessor shall first ascertain the number of irrigable or drained acres [hectares] within each tract or subdivision, as determined by the board of directors, and this must form the primary basis for determining the benefits accruing due to construction, acquisition, or operation of irrigation or drainage works. In addition, the district assessor shall include such factors as methods of irrigation, power consumption, water conservation, and whether or not irrigable acres [hectares] are actually being irrigated. The amount of benefits apportioned or distributed to each tract of land as determined and equalized must be the basis for fixing the annual assessments levied during that year against the tracts or subdivisions in carrying out the provisions of this chapter.

Source:

S.L. 1917, ch. 115, § 16; 1925 Supp., § 8247a16; S.L. 1939, ch. 253, § 21; 1941, ch. 298, § 7; R.C. 1943, § 61-0901; S.L. 1971, ch. 588, § 11; 1983, ch. 680, § 33; 2019, ch. 509, § 2, eff August 1, 2019.

Cross-References.

Definitions applicable to chapter, see N.D.C.C. § 61-05-01.

61-09-02. District assessor to make list or prepare map to show apportionment of assessments — Filing.

The assessor shall make, or cause to be made, a list showing the apportionment or distribution of assessments with a description of each unit or tract of land assessed in the district and the name of the record owner of each unit or tract. Alternatively, the assessor may prepare a map on a convenient scale showing each unit or tract of land with the amount per acre [.40 hectare] apportioned to the unit or tract. Where practicable, the units of land must consist of governmental subdivisions of forty acres [16.19 hectares] or more. If all lands on the statement or map are assessed at the same amount or rate per acre [.40 hectare], a general statement to that effect is sufficient. A copy of the list or map must be filed in the office of the county auditor of each county in which the district is situated, and another copy must be filed in the department of water resources. One copy must remain in the office of the board for public inspection.

Source:

S.L. 1917, ch. 115, § 16; 1925 Supp., § 8247a16; S.L. 1939, ch. 253, § 21; 1941, ch. 298, § 7; R.C. 1943, § 61-0902; S.L. 1957, ch. 379, § 1; 1957 Supp., § 61-0902; S.L. 1983, ch. 680, § 34; 2021, ch. 488, § 129, eff August 1, 2021.

61-09-03. Assessments spread in proportion to benefits received — Property subject to assessment for deficiency.

Whenever any assessment is made within an irrigation district it must be apportioned to and spread upon each unit or tract of land in the district in proportion to the benefits received, as determined by the assessor in accordance with section 61-09-01. Bonds, district improvement warrants, and other obligations incurred by the district must be the obligations of the district. Only lands within the district benefited by irrigation or drainage provided by the district and subject to assessment for irrigation or drainage benefits are subject to assessment for any fund created for the payment of bonds, district improvement warrants, and other district obligations. All assessments approved and levied by an irrigation district for any fund or purpose under the authority of this title must be in the form of special assessments and levied against both privately and publicly owned lands.

Source:

S.L. 1917, ch. 115, § 16; 1925 Supp., § 8247a16; S.L. 1939, ch. 253, § 21; 1941, ch. 298, § 7; R.C. 1943, § 61-0903; S.L. 1957, ch. 379, § 2; 1957 Supp., § 61-0903; S.L. 1983, ch. 680, § 35; 2019, ch. 509, § 3, eff August 1, 2019.

61-09-04. Assessment of property not in name of owner not to invalidate assessment.

The assessment of any property in the name of a person not the owner thereof in no way shall invalidate the assessment of any unit or tract of land.

Source:

S.L. 1917, ch. 115, § 16; 1925 Supp., § 8247a16; S.L. 1939, ch. 253, § 21; 1941, ch. 298, § 7; R.C. 1943, § 61-0904.

61-09-05. Assessor to determine amounts payable to United States’ agencies and other persons or districts.

The district assessor in assessing the property of the district shall determine and list the amount payable for each tract obligated by contract, if any, to the United States, any department or agency of the United States, to the state water commission, to any person, firm, corporation, or limited liability company, or to another irrigation district for the payment of water charges.

Source:

S.L. 1917, ch. 115, § 16; 1925 Supp., § 8347a16; S.L. 1939, ch. 253, § 21; 1941, ch. 298, § 7; R.C. 1943, § 61-0905; S.L. 1993, ch. 54, § 106.

61-09-06. When assessment roll completed — When board to equalize assessments.

On or before the fifteenth day of June in each year, the assessor shall complete the assessment roll and deliver it to the secretary of the district. The board of directors thereupon at its regular meeting in July shall proceed to equalize such assessments. At least ten days before the board meets, the secretary shall give notice of such meeting by publishing notice thereof in the manner required for a regular election of the district. Until such meeting is held, the assessment roll shall remain in the office of the secretary for the inspection of all persons interested.

Source:

S.L. 1917, ch. 115, § 17; 1925 Supp., § 8247a17; S.L. 1939, ch. 253, § 22; 1941, ch. 298, § 8; R.C. 1943, § 61-0906; S.L. 1971, ch. 588, § 12.

61-09-07. Meeting of board for equalization — Duties — Secretary to be present to note changes.

The board shall meet as a board of equalization on the day specified in section 61-09-06 for the purpose of equalizing the assessments and shall continue in session from day to day as long as may be necessary but not to exceed ten days exclusive of Sundays. The board shall hear and determine such objections to the apportionment of benefits and assessments as may come before it and may make such changes in such apportionments as shall appear to be just and equitable. The secretary of the board shall be present during the sessions of the board and shall note changes made in the apportionment of benefits and assessments returned by the assessor and in the names of persons assessed. Within ten days after the close of the session, the secretary of the board shall have the apportionment of benefits and assessments, as finally equalized by the board, extended into columns and added.

Source:

S.L. 1917, ch. 115, § 18; 1925 Supp., § 8247a18; S.L. 1939, ch. 253, § 23; R.C. 1943, § 61-0907.

61-09-08. Board to levy assessment against lands of district — Amount — How determined.

The board then shall levy an assessment against the lands of the district sufficient to:

  1. Pay the interest on outstanding bonds and improvement warrants;
  2. Create a sinking fund to retire outstanding bonds and improvement warrants at maturity; and
  3. Pay any and all obligations of the district due, or to become due during the ensuing year, including payments due, or to become due, under any contract with the United States, or with any department or agency thereof, or under any contract with the state water commission, or with any person, firm, corporation, or limited liability company, or with another irrigation district.

In determining the total of such levy, the board shall take into consideration revenue derived from sources other than that obtained from the assessment and taxation of district lands. The secretary of the board shall compute and enter in separate columns of the assessment record the respective sums in dollars and cents required for each purpose, and each purpose shall be denominated a fund.

Source:

S.L. 1917, ch. 115, § 19; 1925 Supp., § 8247a19; S.L. 1939, ch. 253, § 24; R.C. 1943, § 61-0908; S.L. 1993, ch. 54, § 106.

61-09-09. Board may levy assessment for general fund — Contents.

If the board finds it necessary it may levy an assessment for the expenses incurred in organizing the district, for the operation, maintenance, and repair of the irrigation works, for the payment of salaries of officers and employees, and for general expenses. Such assessment shall constitute the general fund.

Source:

S.L. 1917, ch. 115, § 19; 1925 Supp., § 8247a19; S.L. 1939, ch. 253, § 24; R.C. 1943, § 61-0909.

61-09-10. Secretary to enter sum assessed against each tract for each fund — Certifying to county auditor — Duty of auditor.

The secretary shall compute and enter the sum assessed against each tract for each purpose or fund and thereupon shall certify to the county auditor of the county in which each tract of land is situated the amount of such assessment for each purpose or fund levied upon each tract of land by the board. The county auditor shall enter the amount assessed for each fund in a separate column of the tax list of the auditor’s county. All tax lists when delivered to the county treasurer shall show all assessments levied for each fund on each tract of land within the district.

Source:

S.L. 1917, ch. 115, § 19; 1925 Supp., § 8247a19; S.L. 1939, ch. 253, § 24; R.C. 1943, § 61-0910.

61-09-11. Assessments and taxes collected by county treasurer — Manner.

Assessments or taxes shall be collected by the county treasurer at the same time and in the same manner as other taxes are collected in the county, except that such county treasurer shall receive in payment to the general fund mentioned in this chapter, for the year in which the assessment is levied, warrants drawn against such general fund as the equivalent of lawful money of the United States, if such warrants do not exceed the amount of the general fund assessment which the person tendering the same owes. Such county treasurer also shall receive in payment of any assessment for any bond fund, or any improvement warrant fund, past-due interest coupons on such bonds or warrants, as the equivalent of so much money of the United States if such interest coupons do not exceed the amount which the person tendering the same owes such fund. All such assessments except for the payment of principal or interest of bonds or improvement warrants collected or received by the county treasurer shall be paid to the treasurer of such irrigation district upon an order signed by the chairman and secretary of the district, and all warrants received by the county treasurer in payment of assessments, as provided in this chapter, may be turned over, as so much money, to the district treasurer on such orders.

Source:

S.L. 1917, ch. 115, § 19; 1925 Supp., § 8247a19; S.L. 1939, ch. 253, § 24; R.C. 1943, § 61-0911.

61-09-12. Refusal or failure of board to cause assessment to be made.

In case the board shall refuse, fail, or neglect to cause an assessment or levy to be made for the principal and interest of outstanding bonds, or improvement warrants, and for all payments due, or to become due, in the ensuing year to the United States, or to any department or agency thereof, or to the state water commission, or to any person, firm, corporation, or limited liability company, or to another irrigation district, under any contract entered into by the district, or for expenses incurred in organizing the district, then the assessment of property made for the preceding year shall be adopted and shall be the basis of assessment for the district. The board of county commissioners of each county comprising the district, by resolution, shall make such levy and assessment in the same manner and with like effect as if the same had been made by the board of directors of the district, and the expense incident thereto also shall be levied and assessed against the district. All such taxes or assessments shall be collected by and paid to the county treasurer in the county treasurer’s official capacity and the county treasurer shall be responsible for the safekeeping, disbursement, and payment thereof, as herein provided.

Source:

S.L. 1917, ch. 115, § 19; 1925 Supp., § 8247a19; S.L. 1939, ch. 253, § 24; R.C. 1943, § 61-0912; S.L. 1993, ch. 54, § 106.

61-09-13. Board may borrow additional funds if levy of annual assessment is insufficient for district — Limitations.

If after the levy of the annual assessment for the current year, the board finds that because of some unusual or unforeseen cause funds raised through the collection of the assessment, and from other sources, will not be sufficient for the proper maintenance and operation of the district, and the irrigation works of the district, the board may borrow additional funds needed to an amount not to exceed twenty dollars per acre [.40 hectare] for the irrigable lands within the district and may pledge the credit of the district for the payment of the loan, or the board may issue bonds in anticipation of further collections. The board shall include in the levy for the ensuing year the amount required to pay the loan or to retire the bonds.

Source:

S.L. 1917, ch. 115, § 26; 1925 Supp., § 8247a26; S.L. 1939, ch. 253, § 29; R.C. 1943, § 61-0913; S.L. 1983, ch. 680, § 36; 1997, ch. 518, § 22.

61-09-14. Borrowing in excess of ninety percent of levy prohibited — Additional levy permissible — Transfer of balance in fund.

An irrigation district, on account of expenses of operation and maintenance and to pay the current expenses of the district, in any year may not borrow in excess of ninety percent of the levy of assessments for that year. In case of due and outstanding obligations of the district on account of current expenses and expenses of operation and maintenance contracted before the year in which the levy is made, the district board may make an additional levy, not to exceed twenty dollars per acre [.40 hectare], upon all irrigable lands within the district, to create a special fund for the payment of the past-due obligations. Whenever the claims or obligations against any fund for any year are fully paid, the board may transfer any unused balance to any fund for any preceding or succeeding year.

Source:

S.L. 1917, ch. 115, § 20; 1925 Supp., § 8247a20; S.L. 1939, ch. 253, § 25; R.C. 1943, § 61-0914; S.L. 1997, ch. 518, § 23.

61-09-15. Assessment made to be general tax — When due and delinquent — Tax lien to be preferred lien.

All assessments made pursuant to the provisions of this chapter on real property, and assessments on leasehold estates owned by this state or any of its subdivisions, and, to the extent provided by the Act of Congress of August 11, 1916, assessments on entered or unentered public lands shall be a general tax against the real property on which assessed in like manner and to the same effect as general state and county taxes and shall be of the same order. The lien thereof shall share ratably with general tax liens in all tax proceedings and tax lien foreclosures and shall be subject to all provisions of law relating to general taxes. Such assessment shall become due and payable and delinquent at the same time as other general state and county taxes lien foreclosure and shall remain subject to all statutory provisions applying to tax lien foreclosure. In case leasehold estates only are affected by said assessments, the tax lien foreclosure notice shall state that fact. The lien for the bonds of any series shall be preferred to that of any subsequent series, and the lien for the payments due to the United States under any contract between the district and the United States, accompanying which bonds have not been deposited with the United States, shall be a lien preferred over that of any issue of bonds or any series of any issue subsequent to the date of such contract. All funds arising from assessment and levy, if any, shall be devoted to the obligations of the district payable from said funds and as to all obligations from the bond and United States contract a fund shall be so devoted in the order of priority of the creation of the obligation. No error or omission which may be made in the proceedings of the board, or of any officer of an irrigation district in referring, reporting upon, ordering or otherwise acting concerning the establishment, construction, or acquisition of irrigation works, or concerning the issuance of bonds or improvement warrants, or in making or certifying any assessment shall vitiate or in any way affect any such assessment; but if it shall appear that by reason of such error or omission substantial injury has been done to the party or parties claiming to be aggrieved, the court shall alter such assessment as may be just and the same shall then be enforced. Whenever the validity of any assessment, or the validity of any deed given pursuant to a foreclosure of tax lien for such assessment shall be drawn in question in any action in any district court in this state, and such assessment shall be held to be invalid by reason of noncompliance with the laws of this state, the court shall determine the true and just amount which the property attempted to be so assessed by said assessment should pay, to make the same uniform with other assessments for the same purpose, and the amount of such assessments as the same appears on the assessment list thereof, shall be prima facie evidence of such true and just amount, and judgment must be rendered and given therefor against the property liable for such assessment, without regard to the proceedings had for the levy thereof, and such judgment shall be a lien upon the property upon which the assessment shall have been levied, of equal force and effect as the lien of irrigation district assessments, and the lien of such judgment shall be enforced by the court in such action.

Source:

S.L. 1917, ch. 115, § 21; 1925 Supp., § 8247a21; S.L. 1937, ch. 239, § 1; R.C. 1943, § 61-0915; S.L. 1945, ch. 322, § 1; 1957 Supp., § 61-0915; S.L. 1999, ch. 503, § 43.

Cross-References.

Dissolution of district not releasing liens for assessments, see N.D.C.C. § 61-11-14.

Lien and sale of property for special assessments levied under this title, N.D.C.C. §§ 61-01-20, 61-01-21.

Purchase at tax sale by irrigation district, see N.D.C.C. § 61-07-05.

Notes to Decisions

Enforcement of Assessments.

Provisions of this section that all assessments made pursuant to this chapter and enforcement thereof shall be in like manner and to same effect as general state and county taxes are spread and assessed against real property, render provisions of N.D.C.C. § 57-02-38 applicable. In re Heart River Irrigation Dist., 78 N.D. 302, 49 N.W.2d 217, 1951 N.D. LEXIS 91, 1951 N.D. LEXIS 92 (N.D. 1951).

61-09-16. Payment of assessments under protest — When refunding taxes or assessments.

When any person against whose property assessments as provided in this chapter have been made shall pay the same under protest as provided by the general revenue laws of this state, the board may pass upon and make orders disposing of the moneys paid under protest in the same form and manner as the boards of county commissioners are authorized to act in the case of general taxes, and such proceedings shall be had as provided in title 57, so far as such provisions apply. No taxes or assessments shall be ordered refunded unless the person complaining shall file in the office of the secretary of such district a copy of the person’s tax receipt, showing the same paid under protest, together with an affidavit in writing showing one of the following reasons why such taxes or assessments should be refunded:

  1. That the land upon which such taxes or assessments were levied is not within the boundaries of the district for which the lands were taxed or assessed.
  2. That the said lands are exempt by law, setting forth the reason therefor.
  3. Repealed by S.L. 1957, ch. 380, § 1.

Source:

S.L. 1917, ch. 115, § 22; 1925 Supp., § 8247a22; R.C. 1943, § 61-0916; S.L. 1957, ch. 380, § 1; 1957 Supp., § 61-0916.

Cross-References.

Payment of tax under protest, see N.D.C.C. §§ 57-20-20, 57-20-21.

61-09-17. Abatement of assessments — Exception.

The board of county commissioners, with the approval of the tax commissioner, may abate any assessments made by irrigation districts if application therefor is approved by the board of the irrigation district. In case such assessments are made for the purpose of meeting payments due to the United States or any department or agency thereof or to the state water commission, the application shall not be granted unless it also bears the approval of an authorized representative or agent of the United States or of such department or agency, or of the state water commission, as the case may be. In case bonds or improvement warrants are deposited with a trustee under a trust agreement or trust indenture, the consent of such trustee shall be obtained before abating any assessment for such bonds or improvement warrants. The application for the abatement may be made by the board of the irrigation district instead of by individual taxpayers and any number of tracts of land may be included in a single application.

Source:

S.L. 1923, ch. 303; 1925 Supp., § 8247a21a; S.L. 1939, ch. 253, § 26; R.C. 1943, § 61-0917.

Cross-References.

Abatement of tax assessments, see N.D.C.C. ch. 57-23.

61-09-18. Board may call special election to determine if special assessment shall be levied.

The board at any time, when in its judgment advisable, may call a special election and submit to the qualified electors of the district the question whether or not a special assessment shall be levied for the purpose of raising money to be applied for any authorized purpose.

Source:

S.L. 1917, ch. 115, § 30; 1925 Supp., § 8247a30; R.C. 1943, § 61-0918.

61-09-19. Special election — Notice — Ballots.

The election provided for in section 61-09-18 shall be called upon the notice prescribed, and shall be held and the result thereof determined and declared in all respects in conformity with the provisions relating to bond elections. The notice must specify the amount of money proposed to be raised, and the purpose for which it is intended to be raised, at such election. The ballot at such election shall be in substantially the following form:

Shall a special assessment in the amount of $ (stating the amount) be levied? Yes • No •

Click to view

If a majority of the votes cast are in favor of such assessment the board, at the time of the annual levy, shall levy an assessment sufficient to raise the amount voted.

Source:

S.L. 1917, ch. 115, § 30; 1925 Supp., § 8247a30; R.C. 1943, § 61-0919.

61-09-20. How rate of special assessment determined.

The rate of assessment determined by a special election as provided in section 61-09-18 shall be ascertained and apportioned in the manner as provided in this chapter, specifically sections 61-09-01 through 61-09-03, for all special assessments which an irrigation district has the authority to levy.

Source:

S.L. 1917, ch. 115, § 30; 1925 Supp., § 8247a30; R.C. 1943, § 61-0920; S.L. 1983, ch. 593, § 87; 1983, ch. 680, § 37.

CHAPTER 61-10 Changing Boundaries of Irrigation Districts

61-10-01. Change of district boundaries — Effect.

The boundaries of any irrigation district may be changed and tracts of land not included within the district may be added to the district, or tracts of land included within the boundaries of such district may be excluded from the district, in the manner prescribed in this chapter, but neither such change of the boundaries of the district nor such exclusion of lands from the district shall impair or affect its organization, or its rights in or to property, or any of its rights or privileges. It shall not affect nor discharge any contract, obligation, lien, or charge for or upon which it was or might become liable or chargeable had such change of its boundaries not been made, or had no land been excluded from the district.

Source:

S.L. 1917, ch. 115, § 35; 1925 Supp., § 8247a35; R.C. 1943, § 61-1001; S.L. 1983, ch. 680, § 38.

Cross-References.

Definitions applicable to chapter, see N.D.C.C. § 61-05-01.

Notes to Decisions

Exclusion of Lands from District.

Proceedings provided for in this chapter can only be brought where an irrigation district is duly organized, and has board of directors authorized and empowered to act on petitions for exclusion of lands from district. In re Ft. Clark Irrigation Dist., 78 N.D. 107, 48 N.W.2d 741, 1951 N.D. LEXIS 77 (N.D. 1951).

61-10-02. Petition for inclusion of land in district — Contents of petition.

The holder or holders of title, or evidence of title, and the secretary of the interior of the United States for unentered or public land, representing one-half or more of any body of lands which can be served by the irrigation system, and which, taken together, constitute one tract of land, may file with the board of directors of such district a petition in writing praying that the boundaries of such district may be so changed as to include their lands. The petition shall describe the boundaries of the parcel or tract of land, and also shall describe the boundaries of the several parcels owned by the petitioners, if they are the owners of district parcels. Such description need not be more particular than may be required when such lands are entered by the township assessor in the assessment book. Such petition must contain the assent of the petitioners to the inclusion in said district of the parcels or tracts of land described in the petition, and of which the petition alleges that they respectively are the owners, and it must be acknowledged in the manner in which a conveyance of lands is required to be acknowledged.

Source:

S.L. 1917, ch. 115, § 36; 1925 Supp., § 8247a36; R.C. 1943, § 61-1002; S.L. 1957, ch. 381, § 1; 1957 Supp., § 61-1002.

61-10-03. Notice of petition to include land in district — Contents — Time required by notice — Cost. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-04. Hearing of petition on proposed change in boundaries — Assent of parties. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-05. Payment of share of original cost by petitioners required.

The board to which a petition for the inclusion of lands into a district is presented may require, as a condition precedent to the granting of the same, that the petitioners severally shall pay to such district such respective amounts, as nearly as the same can be estimated, the several amounts to be determined by the board, as said petitioners or their grantors would have been required to pay to such district as assessments, had such lands been included in such district at the time the same originally was formed.

Source:

S.L. 1917, ch. 115, § 39; 1925 Supp., § 8247a39; R.C. 1943, § 61-1005; S.L. 1983, ch. 680, § 39.

61-10-06. Power of board to reject or grant petition for inclusion of land — Survey required. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-07. Objections to change — Resolution adopting change — Contents of resolution. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-08. Ordering of election — Notice, contents — Ballots, contents. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-09. Result of election — Duty of board. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-10. Copy of order changing boundaries filed with recorder — Effect. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-11. Petition to be recorded by secretary — Evidence. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-12. Authority of guardians, personal representatives, and conservators on proposal to change boundaries of district.

A guardian, conservator, or personal representative who is appointed as such under the laws of this state, and who is thereby entitled to the possession of the lands belonging to the estate which the person represents, on behalf of the person’s ward or the estate which the person represents, or upon being authorized by the proper court, may sign and acknowledge the petition provided in this chapter, or the person may show cause, as mentioned in this chapter, why the boundaries of the district should not be changed.

Source:

S.L. 1917, ch. 115, § 46; 1925 Supp., § 8247a46; R.C. 1943, § 61-1012; S.L. 1973, ch. 257, § 81; 1983, ch. 680, § 40.

61-10-13. When redivision of district into divisions — Directors elected from. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-14. Exclusion of land from district — Petition for — Contents — Description of lands in — Acknowledging. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-15. Notice of petition for exclusion of lands — Contents — Publishing or posting — Time specified in notice. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-16. Hearing petition and objections thereto — Assent of parties. [Repealed]

Repealed by S.L. 1983, ch. 680, § 58.

61-10-17. Power of board to deny or grant petition for exclusion of lands. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-18. Bonds or improvement warrants outstanding — Resolution excluding from district — Assent to — Acknowledgment. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-19. Election ordered to determine exclusion of lands — Publishing and posting — Form of ballots — Conducting. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-20. Result of election — Survey ordered by board. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-21. Filing copy of orders — Effect. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-22. Effect of change on office of director upon exclusion of lands — Vacancy — How filled.

If the lands excluded from any district shall embrace the greater portion of any division of such district, the office of director for such division shall be vacant at the expiration of ten days from the final order of the board excluding the lands. Such vacancy shall be filled by appointment by the other directors of the district. A director thus appointed shall hold office for the balance of the term in which the vacancy occurs.

Source:

S.L. 1917, ch. 115, § 56; 1925 Supp., § 8247a56; S.L. 1939, ch. 253, § 34; R.C. 1943, § 61-1022.

61-10-23. Redivision of district. [Repealed]

Repealed by S.L. 1959, ch. 410, § 15.

61-10-24. Refunding assessments to owners of lands excluded. [Repealed]

Repealed by S.L. 1957, ch. 380, § 2.

61-10-25. Notice of filing of petition and hearing thereof — Cost of proceedings.

The secretary of the board of directors shall cause notice of the filing of a petition for the inclusion of land in an irrigation district to be published in the manner provided for a regular election of the district. The notice shall state the name or names of petitioners, a description of lands mentioned in the petition, and the prayer of the petition. It shall notify all persons affected by the proposed inclusion of lands in the district to appear at the time and place specified in the notice and to show cause, in writing or in person, if any they have, why the lands described in the petition, or any part thereof, should not be included in the irrigation district. The board may require the petitioners to advance to the secretary of the district sufficient money to pay the estimated cost incurred in the proceedings of the proposed inclusion of land.

Source:

S.L. 1959, ch. 410, § 1; 1971, ch. 588, § 13; 1983, ch. 680, § 41.

61-10-26. Hearing of petition — Assent of parties.

The board of directors of the district, at the time and place mentioned in the notice of hearing on the petition, or at such time to which the hearing of the petition may be adjourned, shall proceed to hear such petition and shall receive and consider all objections presented by any elector in the district or other affected person to the inclusion therein of lands described in the petition or any part thereof. The secretary of the board shall take note of all objections and include the same in the minutes of the meeting. The failure of any elector in the district to appear and object at the hearing, or to file with the board the elector’s objection in writing before or at the hearing, shall be deemed to be an assent on the elector’s part to the inclusion of such lands.

Source:

S.L. 1959, ch. 410, § 2; 1983, ch. 680, § 42.

61-10-27. Board may include lands in district.

If the board of directors deems a change in district boundaries to include any of the lands mentioned in the petition is not in the best interests of the district, the board shall reject the petition. If the board deems the change is in the best interest of the district, the board shall grant the petition in whole or in part and by resolution direct the chairman and the secretary of the board to issue an order including all or any part of the lands mentioned in the petition in the district, unless electors who together own at least ten percent of the whole number of acres [hectares] in the district subject to assessment for irrigation costs object in writing at or before the time of hearing to the inclusion of the lands. When lands are included in a district, the order of the board of directors allowing inclusion must be filed with the department of water resources and with the county auditor of each county in which the lands are situated. The order also must be filed and recorded in the office of the recorder of each such county.

Source:

S.L. 1959, ch. 410, § 3; 2001, ch. 120, § 1; 2021, ch. 488, § 130, eff August 1, 2021.

61-10-28. Electors may object to inclusion of lands — Board may call an election.

If electors who together own or hold ten percent or more of the whole number of acres [hectares] in the district, subject to assessments for irrigation costs, at the hearing on the petition, object in writing to the inclusion of the lands therein mentioned, the board shall, by resolution, order an election to submit to the electors of the district the question whether or not the lands mentioned in the petition or any part thereof shall be included.

Source:

S.L. 1959, ch. 410, § 4; 1971, ch. 588, § 14.

61-10-29. Ordering of election — Notice — Conduct.

The board shall fix the time when such election shall be held. Notice of such election, describing the lands proposed for inclusion in the district, shall be given in the manner provided for a regular election of the district. Such election shall be held and conducted, the ballots counted, and the results of the election determined and declared in the same manner as a regular election of the district. The ballots at such election shall contain substantially the following words: “For inclusion of lands in the district” and the words “against inclusion of lands in the district”. In case a contract obligating the district has been entered into between the district and the United States, or with any department or agency thereof, or with the state, or any department or political division thereof, no change shall be made in the area embraced within the district unless a duly authorized agent of the holder of any such contract has consented thereto in writing and until such consent has been filed with the board of directors.

Source:

S.L. 1959, ch. 410, § 5; 1971, ch. 588, § 15.

Cross-References.

Contracts with United States, see N.D.C.C. §§ 61-07-03, 61-07-11.

61-10-30. Result of election — Duty of the board and secretary.

If a majority of the votes cast at the election are against the inclusion of the land described in the resolution of the board of directors, the board shall deny the petition and may not proceed in the matter. If a majority of the votes cast at the election are in favor of including the lands in the district, the board shall issue its order setting forth the filing of the petition, the action of the board on the petition, and the result of the election, and shall order the lands added to the district. The order must describe the lands to be included in the district. A certified copy of the order of the board must be filed with the department of water resources and the county auditor of each county in which the included lands lie. A certified copy of the order also must be filed and recorded in the office of the recorder in each such county.

Source:

S.L. 1959, ch. 410, § 6; 2001, ch. 120, § 1; 2021, ch. 488, § 131, eff August 1, 2021.

61-10-31. Redivision of district into divisions.

When lands are included in an irrigation district by means of the procedure described in this chapter, and if the district will contain after inclusion of the lands twenty thousand irrigable acres [8093.72 irrigable hectares] or more, at least thirty days before the next general election, the board shall make an order dividing or redividing the district into divisions in conformity with section 61-05-13. The divisions must be as nearly equal in size as may be practicable and they must be numbered, with one director thereafter elected by and from each division.

Source:

S.L. 1959, ch. 410, § 7; 1971, ch. 588, § 16; 2001, ch. 565, § 3.

61-10-32. Petition for exclusion of land from irrigation district — Bond — Contents.

The owner or owners of a tract or tracts of land in an irrigation district may file with the board of directors of the district a petition requesting that such tract or tracts of land be excluded from the district. The petition shall be accompanied by a sufficient bond conditioned that the petitioner or petitioners will pay all costs incurred by the board in connection with the proceeding resulting from the filing of such petition. The petition must describe each tract of land sought to be excluded from the district. The petition shall be recorded in the minutes of the board. The filing of a petition with the board requesting the exclusion of lands from the district is deemed an assent by each petitioner to the exclusion from the district of the lands described in the petition, or any part thereof. Any unit or tract of land mentioned in the petition which does not include within its boundaries acreage [hectarage] susceptible of irrigation by the irrigation works of the district may not be assessed or taxed by the district and may be excluded therefrom.

Source:

S.L. 1959, ch. 410, § 8; 1983, ch. 680, § 43.

DECISIONS UNDER PRIOR LAW

Analysis

Description.

Lands sought to be excluded from an irrigation district were not required to be described by metes and bounds under former law. In re Heart River Irrigation Dist., 78 N.D. 302, 49 N.W.2d 217, 1951 N.D. LEXIS 91, 1951 N.D. LEXIS 92 (N.D. 1951).

Natural Causes.

Prior law required exclusion of land which was not irrigable due to natural causes. In re Ft. Clark Irrigation Dist., 78 N.D. 107, 48 N.W.2d 741, 1951 N.D. LEXIS 77 (N.D. 1951); In re Heart River Irrigation Dist., 78 N.D. 302, 49 N.W.2d 217, 1951 N.D. LEXIS 91, 1951 N.D. LEXIS 92 (N.D. 1951).

61-10-33. Notice of hearing of petition.

The secretary of the board of directors shall cause notice of the filing and hearing of a petition for exclusion of lands from an irrigation district to be published in the manner provided for a regular election of the district. The notice shall state the names of petitioners, the description of each tract of land mentioned in the petition, and the prayer of the petition. The notice shall notify all persons affected by the proposed exclusion of lands from the district, to appear at the time and place specified therein and show cause in writing or in person, if any they have, why the lands described in the petition should not be excluded. If a petition requesting the exclusion of lands does not describe any lands which are susceptible of irrigation by the irrigation works of the district, the board may exclude the lands from the district without notice or hearing.

Source:

S.L. 1959, ch. 410, § 9; 1971, ch. 588, § 17; 1983, ch. 680, § 44.

61-10-34. Board may grant or deny petition for exclusion of lands.

If after the hearing and after considering objections, if any, to exclusion of the lands or parts thereof mentioned in the petition, the board deems it not for the best interests of the district to exclude the lands mentioned in the petition or any part thereof, it shall deny the petition. If, however, the board shall deem it for the best interests of the district to exclude such lands, or any part thereof, from the district, it shall grant the petition and by resolution direct the chairman and secretary of the board to issue an order excluding such lands from the district, unless the district has outstanding bonds or improvement warrants or unless a contract obligating the district has been entered into with the United States or any department or agency thereof or with the state or any department or political subdivision thereof.

Source:

S.L. 1959, ch. 410, § 10.

61-10-35. Outstanding bonds or improvement warrants or contractual obligations — Order excluding lands — Assent.

If the holders of outstanding bonds or improvement warrants, or of contracts obligating the district, consent in writing to exclusion of lands mentioned in the petition, the board of directors may by resolution direct the chairman and the secretary of the board to execute the board’s order excluding the lands from the district. The assent in writing of holders of district bonds or improvement warrants, or of anyone interested in a contract obligating the district, must be filed with the secretary of the district and copied in the minutes of the board, and the minutes or a certified copy of the minutes are admissible in evidence with the same effect as the written assent. If assent is not given, the board shall deny and dismiss the petition. When lands are excluded from the district, a certified copy of the order of the board must be filed in the department of water resources and the county auditor of each county in which the excluded lands are situated and filed and recorded in the office of the recorder of each of those counties.

Source:

S.L. 1959, ch. 410, § 11; 2001, ch. 120, § 1; 2021, ch. 488, § 132, eff August 1, 2021.

61-10-36. Election to determine exclusion of land — Notice of election — Form of ballot — Conduct of election.

If electors who together own at least ten percent of the whole number of irrigable acres [hectares] in the district object in writing to the exclusion of such land, the board shall by resolution order an election to submit to the electors of the district the question whether or not the lands mentioned in the petition, or any part thereof, shall be excluded. Notice of such election, describing the lands proposed for exclusion from the district, shall be given in the manner provided for a regular election of the district. The ballot at such election shall be substantially in the following form:

Shall the tracts of land described in the notice of this election be excluded from the irrigation district? Yes (for exclusion of lands) • No (against exclusion of lands) •

Click to view

The election shall be conducted substantially as a general election of an irrigation district is conducted.

Source:

S.L. 1959, ch. 410, § 12; 1971, ch. 588, § 18.

Cross-References.

Conduct of regular irrigation district elections, see N.D.C.C. §§ 61-06-09 to 61-06-20.

61-10-37. Result of election — Order excluding lands.

If at an election for exclusion of lands from an irrigation district, a majority of the votes cast are against exclusion, the board shall dismiss the petition and may not proceed in the matter. If a majority of the votes are in favor of excluding the lands from the district, the board shall issue its order setting forth the filing of the petition, the action of the board on the petition, and the result of the election, and shall order the lands excluded from the district. A certified copy of the order must be filed in the department of water resources and the county auditor of each county in which the excluded lands lie and must be filed and recorded in the office of the recorder of each such county.

Source:

S.L. 1959, ch. 410, § 13; 2001, ch. 120, § 1; 2021, ch. 488, § 133, eff August 1, 2021.

61-10-38. Elimination of divisions of district.

When lands are excluded from an irrigation district by means of the procedure described in this chapter, and if the district will contain less than twenty thousand irrigable acres [8093.72 irrigable hectares] after the exclusion of the lands, the board of directors shall issue an order eliminating district divisions in conformity with section 61-05-13.

Source:

S.L. 1959, ch. 410, § 14; 1971, ch. 588, § 19; 1983, ch. 680, § 45; 2001, ch. 565, § 4.

CHAPTER 61-11 Dissolution of Irrigation Districts

61-11-01. Petition to board of directors for dissolution of district — Requirements — Adoption of resolution calling special election.

Whenever the electors of an irrigation district owning a majority of the number of acres [hectares] of irrigable land therein shall petition the board to submit to the electors of the district at a special election, or at the next regular election of the district, the question of the dissolution or discontinuance of such irrigation district, and the sale of its property, the board, if the district has no outstanding or unpaid bonds or district improvement warrants, or if the holders of district bonds or district improvement warrants consent thereto in writing, shall adopt a resolution calling a special election or providing for the submission of such question to the electors at the next regular district election.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 1; R.C. 1943, § 61-1101.

Cross-References.

Definitions applicable to chapter, see N.D.C.C. § 61-05-01.

61-11-02. Notice of election for dissolution of district — Publication.

Notice that the question of the dissolution of the district and the sale of the district property as provided in section 61-11-01 will be submitted to the vote of the electors at a special election or at the next general district election, as the case may be, shall be given in the manner provided for a regular election of the district.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 1; R.C. 1943, § 61-1102; S.L. 1971, ch. 588, § 20.

Cross-References.

Conduct of regular irrigation district elections, see N.D.C.C. §§ 61-06-09 to 61-06-20.

61-11-03. Ballots to be provided — Form.

The board shall provide printed ballots for an election held pursuant to the provisions of this chapter. Such ballots shall be substantially in the following form:

The irrigation district of County, North Dakota, shall be dissolved and its property sold: Yes • No •

Click to view

The board shall cause such ballots to be prepared at least fifteen days before the election and shall place the ballots in the hands of the election officers of the district prior to the opening of the polls on the day of such election.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 2; R.C. 1943, § 61-1103; S.L. 1983, ch. 680, § 46; 2011, ch. 54, § 13.

61-11-04. Conduct of election — Canvassing and reporting result of election.

An election on the question of dissolution in all respects must be conducted, and the votes canvassed, in the same manner as provided for a regular election of the district. A certified copy of the statement of the election result by the district’s board of directors and all ballots, lists, tally sheets, and other documents pertaining to the election must be forwarded to the department of water resouces by registered or certified mail or express.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 3; R.C. 1943, § 61-1104; S.L. 1971, ch. 588, § 21; 2021, ch. 488, § 134, eff August 1, 2021.

61-11-05. Procedure when election favors dissolution — Notice to file claims against district — What claims barred.

If a majority of the votes cast at the election are in favor of dissolving the district, the board shall cause to be published in the newspaper or newspapers of general circulation where the district is located, and in the official newspaper of each county in which the district is located, a notice to the creditors of the district, except holders of district bonds or district improvement warrants, requiring any person having a claim against the district to submit and file such claim with the secretary of the board within one year after the first publication of the notice, at the place specified in such notice. The notice shall be published as many times as the board shall direct, but not less than once each week for three consecutive weeks. The secretary of the district shall mail, or cause to be mailed, by registered or certified mail, a copy of such notice to each creditor, except any holder of district bonds or district improvement warrants, known to the secretary or of record in the secretary’s office. After such notice is given, a copy thereof with the affidavit of publication and affidavit of mailing shall be filed in the office of the secretary of the district. Any claim not thus presented, except any claim of a holder of district bonds or warrants, shall be barred forever against such district and against all officers thereof or property therein. None of the provisions of this chapter shall be construed to limit or impair the rights of owners or holders of district bonds or district improvement warrants.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 4; R.C. 1943, § 61-1105; S.L. 1983, ch. 680, § 47.

61-11-06. Vote against dissolution of district — Subsequent election for dissolution not to be held for one year.

If a majority of the votes cast at the election are against dissolving the district and selling the property thereof, no subsequent election upon the question of dissolution of the district shall be held until after the expiration of at least one year.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 5; R.C. 1943, § 61-1106.

61-11-07. Resolution of dissolution when election favors dissolution — Officers and board to act until obligations settled.

If a majority of the votes cast at the election are in favor of dissolving the district, the board, in its resolution declaring the result of the election, shall declare that the district will be dissolved when the obligations of the district have been paid fully. The board and other officers of the district shall continue to act and function until the property and assets of the district have been disposed of in conformity with the provisions of this chapter and until all obligations of the district have been settled and paid.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 6; R.C. 1943, § 61-1107.

61-11-08. Sale of district property authorized — Appraisers appointed — Oath — Compensation.

If a majority of the votes cast at an election for dissolution of a district favor dissolution and sale, the irrigation works, franchises, and other property of the district may be sold at not less than a valuation determined by a board of three appraisers. One member of the board of appraisers must be appointed by the board of directors of the district, one must be appointed by the director of the department of water resources, and the two appointed appraisers shall choose the third appraiser. The board of appraisers must be sworn by an officer who is authorized to administer oaths and who has an official seal. The board shall appraise the irrigation works, franchises, and all other property of the district at their cash value, and, with the consent of the board of directors of the district, may employ engineers, accountants, and other expert assistance as necessary. The board of directors shall fix the compensation of the appraisers, engineers, accountants, and others.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 7; R.C. 1943, § 61-1108; S.L. 1983, ch. 680, § 48; 2021, ch. 488, § 135, eff August 1, 2021.

61-11-09. Appraisal of property by appraisers — Report to board — Advertising property for sale — Opening of bids.

The board of appraisers shall appraise all the property the district and make a report of the appraisal to the board of directors. A copy of the report must be filed by the secretary of the district with the department of water resources. The board of directors shall advertise for sale all the property of the district and publish a notice once each week for two consecutive weeks specifying that sealed bids will be received, opened, and considered by the board at the time and place specified in the notice, and describing the property. At the time and place designated in the notice, or as soon after the time as the board can meet, the board shall open and consider all bids received for the purchase of the property, and the board may reject bids which do not, in the judgment of the board, offer a fair and just consideration.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 8; R.C. 1943, § 61-1109; 2021, ch. 488, § 136, eff August 1, 2021.

61-11-10. Private sale of property of district — When permitted — Terms — Proceeds of sale.

If all bids are rejected, the board, by private negotiation, may sell and convey the property or any part thereof for cash at not less than the appraised value thereof, or may agree to sell and convey the property at not less than the appraised value for part cash and part in deferred payments bearing interest at such rate as shall be agreed to mutually between the board and the purchaser. The title to any property so sold shall remain in the district until the purchase price thereof has been fully paid. All moneys realized from the sale of the property shall be deposited with the county treasurer designated as the custodian of district funds, and such moneys shall be paid out only upon warrants duly authorized by the board and signed by the chairman and secretary thereof.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 9; R.C. 1943, § 61-1110.

61-11-11. Sale or transfer of property authorized.

In carrying out the provisions of this chapter, for the discontinuance of an irrigation district and the sale of its property and assets, the board may sell, transfer, and convey all of the irrigation works, franchises, and other property owned by the district to the purchaser thereof.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 10; R.C. 1943, § 61-1111; S.L. 1983, ch. 680, § 49.

61-11-12. Liquidation of district indebtedness.

After the sale of the property and franchises of an irrigation district, the board, with the moneys realized from such sale together with such other funds as such district may have, shall make settlement, payment, and redemption of all outstanding bonded or other indebtedness of the district, but in no case shall such board pay more than the par value of outstanding bonds or warrants, as the case may be, with interest up to the time of payment. If the amount realized from the sale of such district property, together with other moneys of the district, shall be insufficient for the payment of all the indebtedness of the district, such district shall not be dissolved or discontinued until such indebtedness is fully paid, and assessments shall continue to be made against the lands in the district in the manner provided by law for the levy of assessments to pay bonds and other indebtedness of irrigation districts until a sufficient amount is raised to pay in full all obligations of such district.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 11; R.C. 1943, § 61-1112.

61-11-13. Sale does not affect vested water rights.

The sale of the irrigation works, franchises, and property of an irrigation district shall not affect or impair vested water rights, and the right to the use of water acquired under the laws of this state shall be assigned to the purchaser of the irrigation works of the district or to the individual electors of the district in accordance with section 61-04-15. Chapter 61-04 governs all water permits and water rights acquired by an irrigation district, including any water permits or water rights which may be assigned by an irrigation district.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 12; R.C. 1943, § 61-1113; S.L. 1983, ch. 680, § 50.

61-11-14. Sale does not affect or release assessment liens — Duty of county treasurer.

The sale of the property and franchises of an irrigation district shall not affect or release the lien of any assessment made by the district upon the lands therein, and such lien shall not be removed until such assessment is paid or the property sold for the payment thereof. The county treasurer shall collect any such assessment in the manner provided by law for the collection of the assessments of an irrigation district, and the laws of the state for the collection and sale of land for taxes shall continue to be applicable to the collection of any such assessments.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 13; R.C. 1943, § 61-1114.

Cross-References.

Liens for assessments, see N.D.C.C. § 61-09-15.

61-11-15. Report of dissolution when — Where filed — Contents — Recording of in office of recorder.

After all the property of an irrigation district is disposed of upon dissolution and all the obligations of the district are paid, the directors of the district shall file in the office of the county auditor of each county in which the district is situated, and in the department of water resources, a report signed by the chairman of the board and attested by the secretary, and bearing the seal of the district, stating the district has disposed of its property and franchises, all of the obligations of the district have been paid fully, and the district has been disorganized and dissolved. The report must be recorded in the miscellaneous records of the recorder in each of the counties in which the district is located, and from and after the filing and recording, the irrigation district is deemed dissolved.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 14; R.C. 1943, § 61-1115; 2001, ch. 120, § 1; 2021, ch. 488, § 137, eff August 1, 2021.

61-11-16. Surplus moneys of district — Disposal.

If a disorganized irrigation district shall have moneys in its treasury after the payment of all the debts and obligations of the district, such moneys shall be apportioned and paid to each landowner, who has paid fully all assessments against that landowner’s land in the proportion which the last assessment of such owner’s land bears to the total of all assessments last made, levied, and assessed against all lands in the district.

Source:

S.L. 1917, ch. 115, § 70; 1925 Supp., § 8247a70; S.L. 1941, ch. 299, § 15; R.C. 1943, § 61-1116.

CHAPTER 61-12 Flood Irrigation Projects

61-12-01. When improvements may be constructed.

Dams, gates, and necessary ditches and canals for the purpose of controlling, regulating, and forcing the overflow of water in non-navigable rivers or streams within this state may be established, constructed, and maintained in the several counties of the state under the provisions of this chapter whenever the same shall be conducive to the public health, convenience, or welfare.

Source:

S.L. 1919, ch. 116, § 1; 1925 Supp., § 8320a1; R.C. 1943, § 61-1201.

61-12-02. Board of flood irrigation — How appointed — Filling vacancies — Office.

The board of county commissioners of any organized county in this state, at any meeting of the board, by a majority vote of all the members, upon its own motion or on the petition of any person or persons interested, may appoint five property owners whose property lies within a flood irrigation project as a board of flood irrigation of the county. If the board of county commissioners appoints a board of flood irrigation it must appoint a board for each flood irrigation project in the county. One member of the board must be appointed for a term of one year, one for a term of two years, one for a term of three years, one for a term of four years, and one for a term of five years. Subsequent appointments must be made for terms of five years. All persons so appointed hold office until their successors are appointed and qualified. In case of a vacancy, the board of county commissioners may fill the vacancy for the unexpired term by appointment. The board of county commissioners shall provide an office for the board of flood irrigation at the county seat suitable for its use and the keeping of its records and shall provide suitable record books for its use.

Source:

S.L. 1919, ch. 116, § 2; 1925 Supp., § 8320a2; R.C. 1943, § 61-1202; S.L. 1993, ch. 601, § 1.

Cross-References.

State auditor to examine books of boards of flood irrigation, see N.D.C.C. § 54-10-13.

Validation of proceedings to appoint flood irrigation board, see N.D.C.C. § 1-08-07.

61-12-03. Oath — Bond — Members of flood irrigation board.

Any person appointed as a member of the board of flood irrigation, within ten days after appointment, shall take, subscribe, and file in the office of the county auditor an oath to perform the duties of the office faithfully, and within the same time shall make, execute, and file in the auditor’s office a bond payable to the county, with sureties to be approved by the auditor, in such sum as shall be ordered by the board of county commissioners, conditioned for the faithful discharge of the member’s duties as a member of the board of flood irrigation.

Source:

S.L. 1919, ch. 116, § 3; 1925 Supp., § 8320a3; R.C. 1943, § 61-1203.

61-12-04. Organization of board of flood irrigation.

The members of the board of flood irrigation shall organize by electing from their number a chairman and a secretary. The board shall keep an office at the county seat and shall keep a record of its acts and proceedings and a separate record of the proceedings relating to each separate flood irrigation project, all of which shall be open for public inspection. Such records shall have the same force and effect as other public records. Three members of said board shall constitute a quorum for the transaction of business. Said board, when it is necessary, may employ a clerk and fix the clerk’s compensation. It also may employ a competent surveyor or engineer.

Source:

S.L. 1919, ch. 116, § 3; 1925 Supp., § 8320a3; R.C. 1943, § 61-1204.

61-12-05. Legal adviser of board of flood irrigation.

The state’s attorney of each county, as far as the state’s attorney’s other duties will permit, shall act as the legal adviser of the board of irrigation control. The board, however, by and with the consent of the board of county commissioners, may employ other counsel to advise and represent it in its proceedings.

Source:

S.L. 1919, ch. 116, § 3; 1925 Supp., § 8320a3; R.C. 1943, § 61-1205.

61-12-06. Dam construction — Petition accompanied by map.

A petition for the construction of a dam or a system of dams, including gates and other proper and necessary structures incidental thereto, may be made in writing to the board of flood irrigation. Such petition shall be signed by at least six freeholders of the district to be affected by the flood irrigation project and shall set forth and particularly describe the boundaries of the district which will be affected. The petitioners must accompany the petition with a map of such proposed district. Such map shall show the approximate location of the proposed dam or dams and other necessary works by means of which it is intended to control the waters of a river or stream. Said petition also shall describe in a general way the benefits expected to be derived from the establishment of such improvement.

Source:

S.L. 1919, ch. 116, § 4; 1925 Supp., § 8320a4; R.C. 1943, § 61-1206.

Cross-References.

Validation of flood irrigation proceedings, see N.D.C.C. § 1-08-07.

61-12-07. Examination of damsite by board of flood irrigation — Appointment of engineer.

Upon the presentation of a petition, as provided for in section 61-12-06 and the filing of the same, the board of flood irrigation, as soon as practicable, shall proceed to examine the site of the proposed improvement and the territory or district to be benefited thereby. If, in its opinion, it is necessary for the public good, it shall adopt a resolution to that effect and a further resolution designating a competent engineer who shall make all necessary and proper surveys of the lands that may be benefited or injured by the establishment of such improvement and who shall prepare all proper and necessary plans and specifications for the improvement required to be constructed. Upon the completion of such plans and specifications, such engineer shall file the same with the said board of flood irrigation, together with an estimate of the cost of the construction of the proposed improvement as well as of the annual maintenance thereof.

Source:

S.L. 1919, ch. 116, § 4; 1925 Supp., § 8320a4; R.C. 1943, § 61-1207.

61-12-08. Bond of petitioners — When required.

The board of flood irrigation shall require a bond from the petitioners in a sum sufficient to pay all expenses of the required surveys and plans and specifications and of the flood irrigation board, if it should appear, after the engineer’s report is filed, that the proposed improvement would cost more than the amount of the benefits to be derived therefrom.

Source:

S.L. 1919, ch. 116, § 4; 1925 Supp., § 8320a4; R.C. 1943, § 61-1208.

61-12-09. Examinations and surveys — Authority to enter lands.

For the purpose of making examinations or surveys or getting the necessary information for the preparation of plans and specifications, the board of flood irrigation, its engineers or employees, may enter upon any lands deemed proper and necessary.

Source:

S.L. 1919, ch. 116, § 4; 1925 Supp., § 8320a4; R.C. 1943, § 61-1209.

61-12-10. Reports and plans of engineer — Copies filed with county auditor.

Copies of the report and of the plans and specifications of the engineer shall be filed in the office of the county auditor in the county in which the improvement is proposed to be constructed, with the board of flood irrigation, and in such other places as the board of flood irrigation may order, all of which shall be open to inspection.

Source:

S.L. 1919, ch. 116, § 4; 1925 Supp., § 8320a4; R.C. 1943, § 61-1210.

61-12-11. Location of improvement — Variance from petition.

In locating an improvement, the board of flood irrigation, under the advice of the engineer, may vary from the location described in the petition, as may be deemed advisable.

Source:

S.L. 1919, ch. 116, § 4; 1925 Supp., § 8320a4; R.C. 1943, § 61-1211.

61-12-12. Time for hearing fixed — Notice.

Upon the filing of the engineer’s report, the board of flood irrigation shall fix a date and public place for hearing objections to the petition, and the place of such hearing shall be some point in the vicinity of the proposed improvement, convenient and accessible for the majority of the landowners affected. At least ten days’ notice of such hearing shall be given by publishing such notice once each week for two successive weeks in the official newspaper in each county in which the proposed project, or any part thereof, is located, if any is published therein, and if none is printed in the county then in the official newspaper printed in an adjoining county in the state. The hearing shall be held at least ten days after the last publication.

Source:

S.L. 1919, ch. 116, § 4; 1925 Supp., § 8320a4; R.C. 1943, § 61-1212; S.L. 1947, ch. 370, § 1; 1957 Supp., § 61-1212.

61-12-13. Contents of notice.

Notices of the hearing shall set out briefly the substance of the petition, the date of the filing of the engineer’s report, and the date when the board will act upon the petition, and must be signed by the members of the board, or a majority thereof.

Source:

S.L. 1919, ch. 116, § 4; 1925 Supp., § 8320a4; R.C. 1943, § 61-1213.

61-12-14. Evidence — Petition to discontinue proceedings.

All persons whose land may be affected by any irrigation project provided for in this chapter may appear before the board of flood irrigation and fully express their opinion and offer evidence upon the matters pertaining thereto. Should two-thirds of the landowners whose land is subject to assessment for the construction of such project and who own at least one-half of such land petition the board of flood irrigation to have further proceedings discontinued, said board, by resolution, shall order all further proceedings in connection therewith discontinued.

Source:

S.L. 1919, ch. 116, § 4; 1925 Supp., § 8320a4; R.C. 1943, § 61-1214.

61-12-15. Showing required to establish project.

If upon the examination by the board of flood irrigation, and after the filing with said board of the plans and specifications for any project, or if upon the hearing upon the petition, it shall appear that there was not sufficient cause for making such petition, or that the cost of the proposed project would be more than the amount of the benefits derived therefrom, the board of flood irrigation shall deny the petition, and the petitioners shall be jointly and severally liable to such board for all costs and expenses incurred in the proceedings, to be recovered by such board by action. If it shall appear that there was sufficient cause for the making of such petition and that the proposed project will not cost more than the amount of the benefits to be derived therefrom, the board of flood irrigation shall make an order establishing the project, accurately describing it, and giving the same a name under which it shall be recorded and indexed.

Source:

S.L. 1919, ch. 116, § 6; 1925 Supp., § 8320a6; R.C. 1943, § 61-1215.

61-12-16. Assessment of damages — How made.

At the hearing provided for in section 61-12-12, the board of flood irrigation also shall determine what damage will be suffered, if any, by the owners of all lands within the district that will be affected by the building of such irrigation project. In determining such damages, no allowances shall be made for any benefits that may accrue to said land by the building of said project. The benefits, if any, shall be assessed under the provisions of section 61-12-22. The assessment of such damages shall be subject to review.

Source:

S.L. 1919, ch. 116, § 5; 1925 Supp., § 8320a5; R.C. 1943, § 61-1216.

61-12-17. Review of assessment — Ten-day notice — Place of hearing.

Ten days’ notice of the time when and the place where an assessment of damages will be reviewed by the board of flood irrigation shall be given by publication in the official newspaper in each county in which the proposed project, or any part thereof, is located, if any is published therein, and if none is printed in the county, then in the official newspaper printed in an adjoining county in the state. The place appointed for such hearing shall be in the vicinity of the proposed improvement convenient and accessible for the majority of the landowners affected. At the time and place appointed, such board shall proceed to hear all complaints or objections relative to such assessment of damages and correct or confirm the same.

Source:

S.L. 1919, ch. 116, § 5; 1925 Supp., § 8320a5; R.C. 1943, § 61-1217; S.L. 1947, ch. 370, § 2; 1957 Supp., § 61-1217.

61-12-18. Petition for review of assessments.

Should any landowner believe that the assessment of the damages suffered has not been made fairly or equitably the landowner may appeal to the district court of the county in which the land is situated, by filing a petition with the clerk of the district court of the county, asking for a review of such assessment of damages. The appeal must be taken in accordance with the procedure provided in section 28-34-01.

Source:

S.L. 1919, ch. 116, § 5; 1925 Supp., § 8320a5; R.C. 1943, § 61-1218; S.L. 1989, ch. 83, § 24.

61-12-19. Issue placed on court calendar — Judgment — Costs.

Upon the filing of a petition for the review of assessments in the office of the clerk of the district court of the county in which the land is situated, the clerk immediately shall notify the board of flood irrigation thereof. If it appears to the court upon the hearing that the assessments have not been made equitably, it may proceed to correct the same. The correction and adjustment is final, unless an appeal is taken to the supreme court.

Source:

S.L. 1919, ch. 116, § 5; 1925 Supp., § 8320a5; R.C. 1943, § 61-1219; S.L. 1989, ch. 83, § 25.

61-12-20. Rights of way.

The rights of way for the construction of any improvements required in an irrigation project, including all sites for dams, gates, and necessary ditches and canals, if not conveyed to the county by the owner, may be acquired by the board of flood irrigation by the exercise of the right of eminent domain in the manner prescribed by title 32. Any such right of way, when acquired, shall be the property of the county.

Source:

S.L. 1919, ch. 116, § 7; 1925 Supp., § 8320a7; R.C. 1943, § 61-1220.

61-12-21. Damages — How paid.

Upon the assessment by the board or court of the amount of damages to which the respective owners of land which may be damaged by the construction of a flood irrigation project may be entitled, and upon the assessment by the board or court of the amount of damages to which the respective owners of the right of way may be entitled, the board of flood irrigation shall issue warrants in sums sufficient to pay the damages so assessed, drawn upon the proper county treasurer and payable out of any funds in the hands of the treasurer for the construction of such flood irrigation project. Such warrants shall be negotiated at not less than their par value and the proceeds thereof paid to the owners of the land entitled thereto, according to such assessments of damages. The surplus, if any, shall be paid to the county treasurer, who shall place the same to the credit of the proper flood irrigation project fund.

Source:

S.L. 1919, ch. 116, § 8; 1925 Supp., § 8320a8; R.C. 1943, § 61-1221.

61-12-22. Assessment of accruing benefits.

Upon acquiring the right of way, and after the completion of the assessment of damages as provided in this chapter, the board of flood irrigation shall assess the percentage of the cost of constructing and maintaining the flood irrigation project and providing the right of way therefor and of paying all damages incurred by the owners of land affected thereby which any lot, piece, or parcel of land shall be liable to pay by reason of the benefits accruing thereto, either directly or indirectly, by reason of the construction of such project.

Source:

S.L. 1919, ch. 116, § 9; 1925 Supp., § 8320a9; R.C. 1943, § 61-1222.

Cross-References.

Assessment for drainage, see N.D.C.C. § 61-12-47.

61-12-23. Assessment of benefits subject to review.

The assessment of benefits provided for in section 61-12-22 also is subject to review in the manner provided in section 28-34-01.

Source:

S.L. 1919, ch. 116, § 10; 1925 Supp., § 8320a10; R.C. 1943, § 61-1223; S.L. 1989, ch. 83, § 26.

61-12-24. Return of assessment of benefits.

After the assessment of benefits has been made, as provided in this chapter, or has been confirmed, if an appeal has been taken, and the specific amount of each assessment has been extended as provided by this chapter, the board of flood irrigation shall make return thereof to the county auditor who shall record the same in a book to be provided by the county for that purpose. Such return shall contain the petition for the project, a copy of the minutes of the survey and of the plans and specifications signed by the engineer, a copy of the order establishing the flood irrigation project, conveyances of the right of way, if any, and the assessments of damages and benefits.

Source:

S.L. 1919, ch. 116, § 11; 1925 Supp., § 8320a11; R.C. 1943, § 61-1224.

61-12-25. Notice of construction — Letting of contracts.

After the order establishing a project has been entered, the board of flood irrigation shall advertise bids in accordance with chapter 48-01.2 for the construction of all work required, as shown by the plans and specifications on file.

Source:

S.L. 1919, ch. 116, § 12; 1925 Supp., § 8320a12; R.C. 1943, § 61-1225; S.L. 1995, ch. 443, § 24; 2007, ch. 403, § 20.

61-12-26. Computation of costs — Contents.

After the letting of a contract for the construction of flood irrigation works, the board of flood irrigation shall make a computation of the cost of the project which shall include:

  1. All the expenses of locating and establishing the same, including the cost of right of way.
  2. The damages paid to landowners for any cause.
  3. The fees of the board and the legal and other necessary expenses incurred under the authorization of the board, including the cost of surveys, plans, and specifications.
  4. Interest on all warrants issued or to be issued by the board of flood irrigation on account of such project, accumulated or to accumulate prior to the time when the tax levied or to be levied to pay therefor is collectible by law.
  5. All other expenses, together with the amount of all contracts let for the construction of the same.

The sum of all the costs and expenses thus incurred or to be incurred shall be the cost of the construction of such project.

Source:

S.L. 1919, ch. 116, § 13; 1925 Supp., § 8320a13; S.L. 1935, ch. 160, § 1; R.C. 1943, § 61-1226.

61-12-27. Apportionment and enforcement of taxes.

After fixing the cost of a flood irrigation project, the board of flood irrigation shall carry out upon the assessment list the specific amount which each lot or tract of land benefited by the project for which the tax is levied is liable to pay on account of procuring the same according to the percentage which by section 61-12-22 it is required to fix and determine. Such list thereupon shall be filed in the office of the county auditor of the county in which the lands benefited are situated and the auditor shall extend upon the tax list as a special tax the several amounts shown by such list, specifying in such tax list the particular flood irrigation project for the construction or procurement of which the special tax is assessed. Such special tax shall be collected and enforced in the same manner as other taxes.

Source:

S.L. 1919, ch. 116, § 13; 1925 Supp., § 8320a13; S.L. 1935, ch. 160, § 1; R.C. 1943, § 61-1227.

Cross-References.

Lien for assessments, see N.D.C.C. §§ 61-01-20, 61-01-21.

61-12-28. Collection of flood irrigation taxes — Payment of expenses.

The flood irrigation taxes shall be collected by the county treasurer and all moneys so collected shall be credited to the flood irrigation fund to which they belong, and the county treasurer shall be the custodian of such funds. Payment of all the expenses and costs of locating and constructing any such project shall be made upon approval by the board of flood irrigation. Warrants therefor shall be signed by the chairman and secretary of the board. All such warrants, after presentation to the county treasurer for payment, if not paid for want of funds, shall be registered by the county treasurer, and thereafter shall bear interest at a rate not exceeding five percent per annum.

Source:

S.L. 1919, ch. 116, § 14; 1925 Supp., § 8320a14; S.L. 1935, ch. 160, § 2; R.C. 1943, § 61-1228; S.L. 1947, ch. 370, § 3; 1957 Supp., § 61-1228.

Cross-References.

Lien and sale of property for special assessments levied under this title, see N.D.C.C. §§ 61-01-20, 61-01-21.

61-12-29. Additional assessments — When necessary.

In case the amount realized from the assessment made for the construction of any flood irrigation project shall not be sufficient to pay therefor or to complete the same and pay all fees and incidental expenses, or to pay and retire any bonds issued in connection with the construction thereof, or if an enlargement of such project, or an extension thereof, becomes necessary, a further assessment shall be made to meet the additional expense, and the amount thereof shall be levied and collected in the manner provided in this chapter.

Source:

S.L. 1919, ch. 116, § 15; 1925 Supp., § 8320a15; R.C. 1943, § 61-1229.

61-12-30. Board of flood irrigation may contract for purchase of water — Assessment for maintenance.

The board of flood irrigation shall have the exclusive care, management, and control of a flood irrigation project, but for such purpose may enter into a contract with responsible parties for the operation thereof, and may also, when necessary, enter into a contract with the United States, or with a district or political subdivision of the state, for purchase of water, or for furnishing water for flood irrigation. For the purpose of defraying the expense of the care, operation, maintenance, and repair of such project, including fees of the members of the board, said board annually shall certify to the county auditor the amount that will be required for such purposes during the following year. Thereupon the county auditor shall apportion to the several parcels or tracts of land within such project the amount which each parcel or tract of land shall be assessable, such apportionment to be made on the basis on which the original benefits were assessed under the provisions of section 61-12-22, and shall extend such amount upon the tax lists as a special tax. The taxes so collected shall be credited to the proper fund.

Source:

S.L. 1919, ch. 116, § 16; 1925 Supp., § 8320a16; R.C. 1943, § 61-1230; S.L. 1961, ch. 380, § 1.

61-12-31. Joint powers of flood irrigation boards in two or more counties — Apportionment of cost.

Whenever it shall be deemed necessary by the boards of flood irrigation of two or more counties in this state to construct or extend a project through or into two or more counties in the state, the several boards of flood irrigation in the counties into or through which such proposed project may extend when completed, are empowered to establish, construct, and maintain such project through or into two or more counties in the following manner:

  1. There first shall be presented to the board of flood irrigation in each of such counties a petition for the establishment of such flood irrigation project in the several counties as provided by law, and the boards of the several counties shall determine upon the necessity or expediency of the establishment of such flood irrigation project as provided by law;
  2. The several boards of flood irrigation of the counties through or into which such proposed project may run then shall meet and agree upon the proportion of damages and benefits to accrue to the lands affected in each county, and for this purpose they shall consider the entire course and territory of such project in all said counties as one project;
  3. They may apportion the cost of establishing and constructing such entire project ratably and equitably upon the lands in each county in proportion to the benefits to accrue to such lands;
  4. When they have so apportioned the same they shall make a written report of such apportionment to the auditors of the several counties affected, and the report shall show the portion of the cost of such entire project to be paid by taxes upon the lands in each of such counties. Such report shall be signed by the boards of flood irrigation of all counties affected; and
  5. Upon the filing of such report, the board of flood irrigation of each county shall meet and assess against the lands in such county ratably and equitably as provided by law an amount sufficient to pay the proportion of the cost of such drain fixed for such county by all said boards.

Source:

S.L. 1919, ch. 116, § 17; 1925 Supp., § 8320a17; R.C. 1943, § 61-1231.

Cross-References.

Joint exercise of governmental powers, see N.D.C.C. ch. 54-40.

61-12-32. Tax or assessment not void.

The collection of no tax or assessment levied or ordered to be levied to pay for the location and construction of any project of flood irrigation laid out and constructed under this chapter shall be enjoined perpetually or declared absolutely void in consequence:

  1. Of any error of any officer or board in the location and establishment thereof;
  2. Of any error or informality appearing in the record of the proceedings by which any such project shall have been located or established; nor
  3. For want of proper conveyance or condemnation of the right of way.

The court in which any proceeding may be brought to reverse or to declare void the proceedings by which any project has been located or established, or to enjoin the taxes levied to pay therefor, on application of either party, shall appoint such person or persons to examine the premises or to survey the same, or both, as may be deemed necessary, and the court on final hearing shall make such order in the premises as shall be just and equitable and may order such taxes, or any part thereof, to remain on the tax list for collection or, if the same shall have been paid under protest, shall order the whole or such part thereof as may be just and equitable to be refunded, the costs of said proceedings to be apportioned among the parties as justice may require.

Source:

S.L. 1919, ch. 116, § 18; 1925 Supp., § 8320a18; R.C. 1943, § 61-1232.

61-12-33. New proceedings — When.

If any proceedings for the location, establishment, or construction of any project under the provisions of this chapter have been, or hereafter shall be, enjoined, vacated, set aside, declared void, or voluntarily abandoned by the board of flood irrigation in consequence of any error, irregularity, or want of jurisdiction affecting the validity of such proceedings, and if any warrants shall have been issued in connection with such invalid or abandoned proceedings, the board of flood irrigation nevertheless may proceed under the provisions of this chapter to locate, establish, and construct the project under the name and in the location specified in the invalid or abandoned proceedings, or under a different name or in a different location. Such new proceedings shall be in accordance with the general provisions of this chapter.

Source:

S.L. 1919, ch. 116, § 18; 1925 Supp., § 8320a18; R.C. 1943, § 61-1233.

61-12-34. Liability of members of flood irrigation board.

Each board of flood irrigation shall make a report to the board of county commissioners of all projects begun, in process of construction, or finished, and also shall render a full account of all moneys which shall come into its hands. Every member of the board of flood irrigation shall be liable on the member’s bond for any misapplication of money coming into the member’s hands as a member of such board. The report required by this section shall include an itemized statement of all expenses and warrants drawn on account of each project.

Source:

S.L. 1919, ch. 116, § 19; 1925 Supp., § 8320a19; S.L. 1935, ch. 160, § 3; R.C. 1943, § 61-1234.

61-12-35. Compensation of members of the board.

Each member of a board of flood irrigation shall receive for services three dollars per day for the time actually spent by the member in the performance of the duties of office. Any member or officer of the board may receive additional compensation for special services rendered to the board and under the authority thereof.

Source:

S.L. 1919, ch. 116, § 20; 1925 Supp., § 8320a20; S.L. 1935, ch. 160, § 4; R.C. 1943, § 61-1235.

61-12-36. Power of board of flood irrigation to administer oath.

Any member of the board of flood irrigation shall have the power to administer any oath required in any proceeding had before the board or in which such member may be called to act officially.

Source:

S.L. 1919, ch. 116, § 21; 1925 Supp., § 8320a21; R.C. 1943, § 61-1236.

61-12-37. Bonds — Issuance — Payment.

The board of county commissioners of any county in which any flood irrigation project is proposed to be located and constructed shall issue bonds upon the written request of the board of flood irrigation. Such bonds shall be known as flood irrigation bonds and shall be in such sums as may be necessary for the purpose of defraying the expenses incurred or to be incurred in obtaining the right of way or in locating or constructing any such project. The word “expenses” as used in this section shall be construed to cover every item of cost of said project from its inception to its completion as provided by this chapter. Such bonds shall be paid out of the revenues to be derived from taxes levied or to be levied and collected from that portion of the county found by the board of flood irrigation to be benefited by the project.

Source:

S.L. 1919, ch. 116, § 22; 1925 Supp., § 8320a22; S.L. 1935, ch. 160, § 5; R.C. 1943, § 61-1237.

61-12-38. Interest rate of bonds.

Flood irrigation bonds issued as provided in this chapter shall bear interest at a rate or rates resulting in an average net interest cost not exceeding twelve percent on those issues which are sold at private sale. There is no interest rate ceiling on those issues sold at public sale or to the state of North Dakota or any of its agencies or instrumentalities. Interest and principal may be payable under the amortization plan over a period of not to exceed twenty years, or the principal may be divided into such amounts and made payable at such periods, not exceeding twenty years, as the board of county commissioners may determine.

Source:

S.L. 1919, ch. 116, § 22; 1925 Supp., § 8320a22; S.L. 1935, ch. 160, § 5; R.C. 1943, § 61-1238; S.L. 1947, ch. 370, § 4; 1957 Supp., § 61-1238; S.L. 1971, ch. 249, § 31; 1981, ch. 269, § 28.

61-12-39. Payment of entire assessment by landowner.

Any landowner who may desire to pay the entire amount assessed against the landowner’s land for the entire cost of any flood irrigation project, including warrants and interest thereon, prior to the sale of bonds may pay into the county treasury the amount of said assessments, for which the treasurer shall give the treasurer’s receipt in full. Such lands shall not be included in the list of lands assessed.

Source:

S.L. 1919, ch. 116, § 22; 1925 Supp., § 8320a22; S.L. 1935, ch. 160, § 5; R.C. 1943, § 61-1239.

61-12-40. Notice of issue of bonds — Given by county auditor.

The county auditor shall give notice of the determination of the board of county commissioners to issue bonds by publishing a notice in the official newspaper of the county at least fifteen days before the date of selling said bonds. Said notice shall designate the project proposed to be bonded and in general terms shall notify all persons interested of their right to pay their total assessment prior to the date of the sale of said bonds, as provided in section 61-12-39. The money paid in shall be used to take up warrants, and the bonds issued shall be for such an amount as will pay the remainder of the cost of construction.

Source:

S.L. 1919, ch. 116, § 22; 1925 Supp., § 8320a22; S.L. 1935, ch. 160, § 5; R.C. 1943, § 61-1240.

61-12-41. Sinking fund.

The board of county commissioners shall provide sinking funds for the payment at maturity of each series of bonds issued and for the payment of the annual interest on the same if serial bonds are issued.

Source:

S.L. 1919, ch. 116, § 22; 1925 Supp., § 8320a22; S.L. 1935, ch. 160, § 5; R.C. 1943, § 61-1241.

61-12-42. Bonds issued on amortization plan.

If bonds are issued on the amortization plan, the board of county commissioners shall provide funds for the payment of each annual amortization maturity, both for the payment of interest and for the principal portion of said maturity.

Source:

S.L. 1935, ch. 160, § 5; R.C. 1943, § 61-1242.

61-12-43. Regulations concerning issuance of bonds under this chapter.

The bonds issued under the provisions of this chapter shall be signed by the chairman of the board of county commissioners of the county and countersigned by the county auditor, who shall keep a record of such bonds. Such board shall have the power to negotiate such bonds at not less than the par value thereof as it may deem for the best interests of all persons interested in the flood irrigation project for the cost of which the bonds are issued. Such bonds shall contain a recital that the same are issued in accordance with the provisions and pursuant to the authority of this chapter and that they are to be paid out of the sinking funds to be created as provided for in this chapter, if issued serially. Whenever such bonds shall be issued, the tax provided for in section 61-12-27 shall not be collected all in one year but shall be divided into parts corresponding with the amounts and maturities of the bonds. Such parts shall be extended year by year upon the tax lists by the county auditor against the parcels of land and property liable to taxation for that purpose and collected in such year, and such fund shall constitute the sinking fund provided by this section. Should the bonds be issued and made payable under the amortization plan of payment, the tax provided for in said section shall be divided into parts corresponding with the principal payment required to be made each year under the said amortization plan, and such parts shall be extended year by year upon the tax lists in the manner and form provided herein for the retirement of bonds issued with serial maturities.

Source:

S.L. 1919, ch. 116, § 22; 1925 Supp., § 8320a22; S.L. 1935, ch. 160, § 5; R.C. 1943, § 61-1243.

61-12-44. Levy of tax for interest — Separate sinking funds — County not liable for bonds.

The board of county commissioners in each year shall levy upon the property liable to taxation on account of the location and construction of any project as provided by this chapter a tax sufficient to pay the annual interest on any bonds which may have been issued for the purpose of locating and constructing such project. Separate sinking funds shall be provided for each separate project for the construction of which bonds shall have been issued. No funds in any such sinking fund shall be applied to any other purpose than the payment of the bonds for the payment of which such fund was created. No county shall be liable for the payment of any bonds issued under the provisions of this chapter but such bonds shall be paid only out of the sinking funds created as provided in this chapter.

Source:

S.L. 1919, ch. 116, § 23; 1925 Supp., § 8320a23; R.C. 1943, § 61-1244.

61-12-45. Assessment of omitted property — Additional assessments.

If an improvement has been or hereafter shall be established, constructed, or maintained pursuant to the provisions of this chapter, the board of flood irrigation, even after the benefits therefor have been assessed, shall have the power, either upon its own motion or upon the request of any interested property owner within said improvement district, and after said improvement has been established and constructed, to examine into and determine whether any property located within said improvement district has not been assessed for benefits. If such board shall find and determine that such property has not been assessed for benefits and in fact has benefited by the establishment, construction, and maintenance of such improvement, it shall proceed to assess such property for such benefits. After the improvement has been established and constructed, the board likewise, upon petition of an owner, may re-examine the benefits thereof. If it appears from such re-examination that more property of such owner has been assessed than actually has been benefited, the board may reassess such benefits so as to conform to the proven facts. All assessments made under this section otherwise shall be made and reviewed in the manner provided in sections 61-12-22 through 61-12-24. If additional assessments are made pursuant to this section, the amount thereof shall be used, first to pay deficiencies in the cost of said project, if any, and the balance thereof, if any, shall be credited equitably and ratably upon the last payment of the assessments made upon the property originally assessed.

Source:

S.L. 1937, ch. 237, §§ 1, 2; R.C. 1943, § 61-1245.

61-12-46. Department of water resources to assist county board of flood irrigation.

The department of water resources, upon the request of the board of flood irrigation of any county in this state, shall assist the board in determining whether the construction of any proposed dams, gates, and necessary ditches and canals for the purpose of controlling, regulating, and forcing the overflow of water in non-navigable rivers or streams within this state would be conducive to the public health, convenience, or welfare.

Source:

S.L. 1927, ch. 38, § 1; R.C. 1943, § 61-1246; 2021, ch. 488, § 138, eff August 1, 2021.

61-12-47. Assessment for drainage.

The board of flood irrigation of any flood irrigation project shall be and is empowered to levy a special tax against all land located within any particular pond in the project to be used for necessary ditching of lands located within the particular pond of the flood irrigation project to procure proper drainage for such lands. Said board shall annually certify to the county auditor the amount that shall be required for such drainage purposes during the following year. Thereupon the county auditor shall apportion the same to the several tracts or parcels of land within such pond within the project, the amount which each parcel or tract of land shall be assessable within said pond, such apportionment to be made on the basis on which the original benefits were assessed within the particular pond under the provisions of section 61-12-22, and shall extend such amount upon the tax lists as a special tax on the lands in such pond. The taxes so collected for drainage shall be credited to a drainage fund for the pond of the project involved.

Source:

S.L. 1945, ch. 321, § 1; R.C. 1943, 1957 Supp., § 61-1247.

61-12-48. Transfer of sinking fund to maintenance fund — Duty of county treasurer.

The board of flood irrigation of any flood irrigation project shall have the right upon the payment of all the bonded debt of the flood irrigation project, by resolution, to transfer any and all funds then remaining in the sinking fund of the project to the maintenance fund of the project for use in maintenance, repair and care, and for payment of outstanding and unpaid warrants issued for maintenance of the project. The county treasurer as custodian of the funds of any flood irrigation project, of any county in this state, shall upon receipt of a certified copy of a resolution of any board of flood irrigation, showing that all bonded debt of a flood irrigation project has been fully paid, transfer any and all funds then remaining in the sinking fund of the project to the maintenance fund of the project.

Source:

S.L. 1945, ch. 324, §§ 1, 2; R.C. 1943, 1957 Supp., § 61-1248.

CHAPTER 61-13 Organization of Corporations for Irrigation Purposes

61-13-01. Corporations or limited liability companies may be organized for irrigation purposes.

A corporation or limited liability company may be formed for the purpose of acquiring water rights, or for the purpose of establishing, owning, leasing, operating, and maintaining an irrigation system and selling, distributing, supplying, and delivering water for irrigation purposes, or for domestic use, to its members or stockholders.

Source:

S.L. 1941, ch. 120, § 1; R.C. 1943, § 61-1301; S.L. 1993, ch. 54, § 106.

61-13-02. Powers of corporations and limited liability companies organized under chapter.

A corporation or limited liability company organized for irrigation purposes may:

  1. Engage in any corporate activity not otherwise prohibited by law and not inconsistent with the purposes mentioned in section 61-13-01.
  2. Acquire water rights, easements, sites, and all means, property, machinery, and equipment necessary or required in connection with the operation and maintenance of an irrigation system.
  3. Establish, construct, maintain, and operate pumping plants, wells, pipelines, canals, and ditches and all other necessary facilities required for the appropriation of water and the operation and maintenance of an irrigation system.
  4. Borrow money in an amount, whether in excess of the amount of its capital stock or membership interests or not, necessary to enable it to carry out the intent and purposes for which it is organized, and as security for the payment of any loan, to pledge or mortgage real or personal property acquired by the proceeds of such loan, or otherwise, including future earnings or income of the corporation or limited liability company.
  5. Acquire, purchase, or lease water rights, franchises, and irrigation works and facilities, or any part thereof, from any person, firm, corporation, limited liability company, or irrigation district, and from any state or federal agency.
  6. Furnish water for irrigation or domestic use, to its members or stockholders, and to furnish and sell water to any person, firm, corporation, or limited liability company.
  7. Adopt bylaws and rules for the furnishing of water, and for charges to be made therefor.
  8. Levy assessments against its members or stockholders necessary for the maintenance and operation of the irrigation system, if one is established and maintained.
  9. Fix rates of tolls and charges for water, to collect the same, to require that charges for water be paid in advance of the irrigation season, to suspend the delivery of water to any land for the irrigation of which the charges and tolls have not been paid, and to provide for the suspension of water delivery to any land upon which assessments, apportioned and levied, remain unpaid for one year after having become due and payable.
  10. Enter into contracts with any person, firm, association, corporation, limited liability company, irrigation district, this state, or any department or agency thereof, or the United States, or with any department or agency of the United States, for supplying water for the irrigation of the lands of its members or stockholders. Such supply of water may be either the entire supply of water necessary to irrigate said lands or to supplement waters supplied or controlled by the corporation or limited liability company.
  11. Do each and every thing necessary, suitable, or proper for the accomplishment of any one or more of the objects enumerated in this section, and to exercise and possess all powers, rights, and privileges necessary or incidental to the purposes for which the corporation or limited liability company is organized, or to the activities in which it is engaged.
  12. Exercise any other rights, powers, and privileges not inconsistent with the purposes of this chapter granted by this state to ordinary corporations or limited liability companies or to mutual aid corporations organized under chapter 10-12.

Source:

S.L. 1941, ch. 120, § 2; R.C. 1943, § 61-1302; S.L. 1983, ch. 680, § 51; 1993, ch. 54, § 106.

61-13-03. Articles of incorporation or bylaws may restrict sales to stockholders — When stock to become appurtenant to land — Sale of water to others.

Any corporation organized for irrigation purposes may provide in its articles of incorporation or bylaws that water shall be sold, distributed, supplied, or delivered only to owners of its shares of stock and that such shares shall be appurtenant to the lands described in the certificate issued and evidencing such shares of stock. When such certificate and a copy of such articles of incorporation or bylaws are recorded in the office of the recorder of the county in which such lands are situated, such shares of stock shall become appurtenant to said lands and shall be transferred only with the sale or transfer of such lands, except in the event of sale or forfeiture of such shares of stock for delinquent assessments thereon as provided in section 61-13-04. Notwithstanding such provision in its articles of incorporation or bylaws, any corporation organized for irrigation purposes may sell water to an irrigation district, this state, or any department or agency thereof, and to the United States, or any department or agency thereof, at the same rates as to holders of shares of such corporation. In the event lands to which any such stock is appurtenant are acquired by this state, the United States, or any department or agency thereof, such stock shall be canceled by the corporation, but shall be reissued to any persons subsequently acquiring title to such land.

Source:

S.L. 1941, ch. 120, § 3; R.C. 1943, § 61-1303; S.L. 2001, ch. 120, § 1.

61-13-03.1. Articles of organization or bylaws may restrict sales to members — When membership interest to become appurtenant to land — Sale of water to others.

Any limited liability company organized for irrigation purposes may provide in the articles of organization or bylaws that water must be sold, distributed, supplied, or delivered only to owners of the limited liability company’s membership interests and that these membership interests must be appurtenant to the land described in the document evidencing these membership interests. If a copy of the articles of organization or bylaws is recorded in the office of the recorder of the county in which the lands are situated, the membership interests become appurtenant to the lands and may be transferred only with the sale or transfer of the lands, except in the event of sale or forfeiture of the membership interests for delinquent assessments on the land as provided in section 61-13-04. Notwithstanding any provision in the limited liability company’s articles of organization or bylaws, any limited liability company organized for irrigation purposes may sell water to an irrigation district, this state, or any department or agency of this state, and to the United States, or any department or agency of the United States, at the same rates as to holders of membership interests of the limited liability company. If lands to which any membership interest is appurtenant are acquired by the state, the United States, or any department or agency of the state or the United States, the membership interest must be canceled by the limited liability company and must be reissued to any persons acquiring title to the land at a later date.

Source:

S.L. 1993, ch. 54, § 104; 1999, ch. 95, § 206; 2001, ch. 120, § 1.

61-13-04. Assessments may be levied upon capital stock.

Any corporation or limited liability company organized for irrigation purposes, unless otherwise provided in its articles of incorporation or bylaws, may levy assessments upon its capital stock whether or not such stock is paid in full. If any shares of stock of any such corporation or membership interests of any such limited liability company, which have been made appurtenant to any land as provided in section 61-13-03, become delinquent in the payment of assessments, the right to receive water thereunder or through dividends on such stock or membership interests may be denied and such shares or membership interests may be forfeited to the corporation or limited liability company.

Source:

S.L. 1941, ch. 120, § 4; R.C. 1943, § 61-1304; S.L. 1993, ch. 54, § 106.

CHAPTER 61-14 General Rules Governing Irrigation

61-14-01. Units of measurement.

The standard of measurement for the flow and volume of water shall be established by rule by the department of water resources.

Source:

S.L. 1905, ch. 34, § 47; R.C. 1905, § 7650; C.L. 1913, § 8285; R.C. 1943, § 61-1401; S.L. 1983, ch. 680, § 52; 2021, ch. 488, § 139, eff August 1, 2021.

61-14-02. Unused water reverts to public. [Repealed]

Repealed by S.L. 1963, ch. 417, § 26.

61-14-03. Amount of water for irrigation.

When issuing a permit to appropriate water for irrigation or adjudicating the rights to use water for irrigation, the department of water resources may not allow more than two acre-feet [2466.96 cubic meters] of water per acre [.40 hectare] per year, or the equivalent, to be delivered on the land, except during periods of sufficient water supply the department may allow up to three acre - feet per acre [3700.45 cubic meters per.40 hectare] per irrigation season to be delivered on the land for a specified period of time, in accordance with the method of irrigation being used, the type of soil to which the water is to be applied, and other criteria established by the department. The department may not allow more water to be delivered on the land than can be used beneficially.

Source:

S.L. 1905, ch. 34, § 49; R.C. 1905, § 7652; C.L. 1913, § 8287; R.C. 1943, § 61-1403; S.L. 1963, ch. 417, § 21; 1981, ch. 365, § 7; 1983, ch. 680, § 53; 2021, ch. 488, § 140, eff August 1, 2021.

61-14-04. Water appurtenant to land for irrigation purposes. [Repealed]

Repealed by S.L. 1963, ch. 417, § 26.

61-14-05. Change of use or place of diversion. [Repealed]

Repealed by S.L. 1977, ch. 569, § 27.

Note.

For present provisions, see N.D.C.C. § 61-04-15.1.

61-14-06. Measuring devices — Unlawful to take water without using.

Every ditch owner shall construct and maintain a substantial headgate at the point where the water is diverted and shall construct a measuring device, of a design approved by the department of water resources, at the most practicable point for measuring and apportioning the water as determined by the department. The department may order the construction of the measuring device by the ditch owner, and if construction is not completed within twenty days after receipt of the order, the person in charge of the irrigation works, upon instructions from the department, shall refuse to deliver water to the ditch owner. The ditch owner may not take water from the irrigation works until the measuring device is constructed and the department approves the device. Measuring devices must be arranged so they can be locked in place, and when locked by the person in charge of the irrigation works or that person’s authorized agent, for the measurement or apportionment of water, other persons may not interfere with, disturb, or change the devices. The use of water through a measuring device that was interfered with, disturbed, or changed constitutes prima facie evidence the person benefited by the interference, disturbance, or change violated this section.

Source:

S.L. 1905, ch. 34, § 52; R.C. 1905, § 7655; C.L. 1913, § 8290; R.C. 1943, § 61-1406; S.L. 1975, ch. 106, § 641; 2021, ch. 488, § 141, eff August 1, 2021.

61-14-07. Unlawful interference with rights to use of water — Penalty.

Any person interfering with or injuring or destroying any headgate, weir, benchmark, well, or other appliance or works for the appropriation, diversion, storage, apportionment, or measurement of water, or for any hydrographic or hydrologic surveys, or interfering with any person engaged in the discharge of duties connected with a headgate, weir, benchmark, well, or other appliance or works for those purposes, is guilty of a class A misdemeanor and liable for the injury or damage resulting from the unlawful act. The department of water resources and the person in charge of an irrigation work, and their authorized assistants and agents, may enter upon private property for the performance of their respective duties, but may not damage the property unnecessarily.

Source:

S.L. 1905, ch. 34, § 53; R.C. 1905, § 7656; C.L. 1913, § 8291; R.C. 1943, § 61-1407; S.L. 1975, ch. 106, § 642; 1983, ch. 680, § 54; 2021, ch. 488, § 142, eff August 1, 2021.

61-14-08. Unlawful use of water and waste — Penalty.

The unauthorized use of water to which another person is entitled, or the willful waste of water to the detriment of another, shall be unlawful. It also shall be unlawful to begin or carry on any construction of works for storing or carrying water until after the issuance of a permit to appropriate such waters. The penalty for any violation of this section is a class A misdemeanor.

Source:

S.L. 1905, ch. 34, § 54; R.C. 1905, § 7657; C.L. 1913, § 8292; R.C. 1943, § 61-1408; S.L. 1975, ch. 106, § 643; 1983, ch. 680, § 55.

Cross-References.

Penalties for classified offenses, see N.D.C.C. § 12.1-32-01.

61-14-09. Bridges over ditches or canals — Penalty.

The owner of any ditch, canal, or other structure for storing or carrying water shall construct and maintain a bridge where the same crosses any highway or publicly traveled road, in accordance with the requirements of the state agency or political subdivision which has control over the road, or shall reconstruct the road in a substantial manner and in a convenient location for public travel. The board of county commissioners shall be authorized to construct any bridge or road, if not built by the owner of the works within three days after the obstruction of the road, and may recover the expenses thereof and costs in a civil suit, unless the same shall be paid by the owner of the works within ten days after demand therefor. The board of county commissioners may make reasonable requirements as to the size and character of any such bridge along a public highway, or for the necessary reconstruction of such a road, and upon failure to comply therewith, may do the necessary work and collect the expense thereof and costs as hereinbefore provided. After the construction of such bridge or road as part of a public highway, the same shall be maintained by the board of county commissioners.

Source:

S.L. 1905, ch. 34, § 55; R.C. 1905, § 7658; C.L. 1913, § 8293; R.C. 1943, § 61-1409; S.L. 1975, ch. 106, § 644; 1983, ch. 680, § 56.

61-14-10. Obstructing works unlawful.

Whenever any appropriator of water has the right of way for the storage, diversion, or carriage of water, it shall be unlawful to place or maintain any obstruction which shall interfere with the use of the works or prevent convenient access thereto.

Source:

S.L. 1905, ch. 34, § 56; R.C. 1905, § 7659; C.L. 1913, § 8294; R.C. 1943, § 61-1410; S.L. 1975, ch. 106, § 645.

61-14-11. Penalty.

If no penalty is provided specifically, any violation of the provisions of this chapter, declared herein to be unlawful, shall be a class B misdemeanor.

Source:

S.L. 1905, ch. 34, § 57; R.C. 1905, § 7660; C.L. 1913, § 8295; R.C. 1943, § 61-1411; S.L. 1975, ch. 106, § 646.

Cross-References.

Penalties for classified offenses, see N.D.C.C. § 12.1-32-01.

61-14-12. Liens on land.

All liens on land, provided for in chapter 61-09, shall be superior in right to all mortgages or other encumbrances placed upon the land and the water appurtenant thereto or used in connection therewith.

Source:

S.L. 1905, ch. 34, § 58; R.C. 1905, § 7661; C.L. 1913, § 8296; R.C. 1943, § 61-1412.

61-14-13. Seepage water.

A person wishing to use seepage water from a constructed works shall apply to the department of water resources for the use in the same manner as applying for a permit to use unappropriated water and shall pay to the owner of the works a reasonable charge for the storage or carriage of the water in the works, if the appearance of the seepage water can be traced beyond reasonable doubt to the storage or carriage of water in the works. The department of water resources may not issue a permit to appropriate the seepage waters until any agreement for the payment of reasonable charges required by this section is executed.

Source:

S.L. 1905, ch. 34, § 59; R.C. 1905, § 7662; C.L. 1913, § 8297; R.C. 1943, § 61-1413; 2021, ch. 488, § 143, eff August 1, 2021.

61-14-14. Disposition of state lands.

No lands belonging to the state, within the areas to be irrigated from works constructed or controlled by the United States, or its duly authorized agencies, shall be sold except in conformity with the classification of farm units by the United States, and the title to such lands shall not pass from the state until the applicant therefor shall have complied fully with the provisions of the laws of the United States and the regulations thereunder concerning the acquisition of the right to use water from such works and shall produce the evidence thereof duly issued. After the withdrawal of lands by the United States for any irrigation project, no application for the purchase of state lands within the limits of such withdrawal shall be accepted, except upon the conditions prescribed in this section. Any state lands needed by the United States for irrigation works shall be sold to the United States at the lowest price authorized by law.

Source:

S.L. 1905, ch. 34, § 61; R.C. 1905, § 7664; C.L. 1913, § 8299; R.C. 1943, § 61-1414.

61-14-15. Unauthorized diversion of water from irrigation ditches.

It is unlawful for any person to divert any of the water from any irrigation works in this state without first having obtained the permission of the owner of the works or of the person or persons lawfully in charge thereof.

Source:

S.L. 1887, ch. 74, §§ 1, 2; R.C. 1895, §§ 7554, 7555; R.C. 1899, §§ 7554, 7555; R.C. 1905, §§ 9313, 9314; C.L. 1913, §§ 10044, 10045; R.C. 1943, § 61-1415; S.L. 1975, ch. 106, § 647; 1983, ch. 680, § 57.

61-14-16. Willfully allowing water to flow or fall upon roadway prohibited — Penalty.

No person may place, erect, or operate a sprinkler irrigation system, center pivot irrigation system, or other irrigation works or equipment upon or across any highway, street, or road or in such a manner as to willfully allow water from the irrigation works or equipment to flow or fall upon any highway, street, or road. This section does not apply to the transportation of irrigation works or equipment upon a highway, street, or road. A person violating this section is guilty of an infraction.

Source:

S.L. 1989, ch. 751, § 1.

CHAPTER 61-15 Water Conservation

61-15-01. Definitions. [Repealed]

Repealed by S.L. 2013, ch. 481, § 2.

61-15-02. Control of water and wildlife conservation projects vested in state. [Repealed]

Repealed by S.L. 2013, ch. 481, § 2.

61-15-03. Water and wildlife conservation projects — Supervision.

The authority, control, and supervision of all water and wildlife conservation projects and wildlife reservations is vested in the department of water resources. The department may accept cooperation, aid, and assistance from the United States of America, its instrumentalities or agencies, in the construction, maintenance, and operation of any structure for the purposes set forth in this chapter, and may do any act necessary to make aid, assistance, and cooperation from the federal government available. The department may grant easements to the United States of America, its instrumentalities or agencies, as may be required.

Source:

S.L. 1935, ch. 229, § 3; R.C. 1943, § 61-1503; 2021, ch. 488, § 144, eff August 1, 2021.

Cross-References.

State acquisition of land for water and wildlife conservation projects, see N.D.C.C. ch. 55-04.

61-15-04. Easements to United States of America for water and wildlife conservation.

An easement may be granted to the United States, its instrumentalities or agencies, over all lands now owned or hereafter acquired by the state of North Dakota for rights of way for ditches, dams, dikes, fills, spillways, or other structures now constructed or to be constructed for the purpose of water or wildlife conservation.

Source:

S.L. 1935, ch. 230, § 1; R.C. 1943, § 61-1504; S.L. 1963, ch. 417, § 22.

61-15-05. Recording or filing fees for documents required by United States or state for water or wildlife conservation project. [Repealed]

Repealed by S.L. 1947, ch. 189, § 1.

61-15-06. Board of university and school lands empowered to grant easements for water and wildlife conservation.

The board of university and school lands may grant to the United States of America, its instrumentalities or agencies, such easement rights as may be required for the construction, maintenance, and operation of any dam, dike, ditch, fill, spillway, or other structure erected or to be erected for water or wildlife conservation purposes on the public lands of this state.

Source:

S.L. 1935, ch. 256, § 2; R.C. 1943, § 61-1506.

61-15-07. Water and wildlife conservation projects not to diminish value of land. [Repealed]

Repealed by S.L. 1963, ch. 417, § 26.

61-15-08. Drainage of meandered lake — Penalty. [Repealed]

Repealed by S.L. 2013, ch. 481, § 2.

61-15-09. Conservation of lakes and streams of Turtle Mountain region.

The department of water resources shall take any necessary action to conserve the water levels and rehabilitate the streams and brooks in the Turtle Mountain region of North Dakota lying in Bottineau and Rolette Counties.

Source:

S.L. 1931, ch. 72, § 1; R.C. 1943, § 61-1509; 2021, ch. 488, § 145, eff August 1, 2021.

61-15-10. Permitting municipal corporations to dam Red River of the North.

Any municipality owning or permanently controlling land upon which a proposed dam is to be constructed may construct a dam thereon and across that portion of the Red River of the North which forms a part of the boundary common to the state of North Dakota and the state of Minnesota, for the purpose of conserving water for municipal, commercial, and domestic use, constructing in connection therewith such appliances, fishways, raceways, sluiceways, and wasteways as may be necessary or convenient for the proper construction and utility of such dam and as may be required by law. If required by law or treaty, the consent of the United States and of the state of Minnesota shall be obtained first.

Source:

S.L. 1925, ch. 187, §§ 1, 2; 1925 Supp., §§ 3989b1, 3989b2; R.C. 1943, § 61-1510.

CHAPTER 61-16 Creation of Water Resource Districts — Boards

61-16-01. Definitions. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-02. Petition for establishment of water conservation and flood control district — Hearing thereon and investigation — District when created. [Repealed]

Repealed by S.L. 1973, ch. 500, § 13.

61-16-03. Bond to accompany petition for district — When — Exception. [Repealed]

Repealed by S.L. 1973, ch. 500, § 13.

61-16-04. Resolution of governing body of public corporation filed with commission. [Repealed]

Repealed by S.L. 1973, ch. 500, § 13.

61-16-05. Water resource districts — Area to be included.

All land in North Dakota shall be within a water resource district.

Source:

S.L. 1957, ch. 383, § 5; R.C. 1943, 1957 Supp., § 61-1605; S.L. 1973, ch. 500, § 2; 1977, ch. 570, § 1; 1981, ch. 632, § 3.

61-16-06. Order creating water resource district.

A certified copy of the order creating a water resource district shall be filed with the county auditor of each county within the district. A like copy of the order shall be filed with the secretary of state. The secretary of state shall issue to the state water commission a certificate, bearing the seal of the state, of the due organization of the district, and shall file a copy of the certificate and the commission’s order creating the district. The secretary of state’s certificate, or a copy authenticated by the secretary of state, shall be prima facie evidence of the organization of the district. This new district shall be, and is hereby declared to be, a governmental agency, and a body politic and corporate with the authority to exercise the powers specified in this chapter, or which may be reasonably implied to exercise such powers. The commission’s order shall specify the name or number by which a district shall be known.

Source:

S.L. 1957, ch. 383, § 6; R.C. 1943, 1957 Supp., § 61-1606; S.L. 1967, ch. 98, § 37; 1973, ch. 500, § 3; 1981, ch. 632, § 4.

61-16-06.1. Consolidation of water resource districts.

  1. Any two or more water resource districts may be consolidated into a single district, or existing districts may be adjusted to reflect watershed boundaries, as determined by the department of water resources, by filing with the state water commission a petition signed by a majority of the members of the board of each of the districts or fifty percent or more of the landowners within each of the districts.
  2. The state water commission shall fix a time and place for a public hearing on a petition filed under this section at a site convenient and accessible for a majority of the affected individuals. At least fifteen days prior to the date of hearing, the commission shall publish notice of the hearing in at least one newspaper of general circulation in each of the districts being consolidated or adjusted. Additional notice of the hearing may be given in a manner prescribed by the state water commission.
  3. Prior to the hearing, the department of water resources shall make, or cause to be made, an investigation of the need for consolidation of the petitioning districts and shall submit a report of the findings to the state water commission. This report must be presented at the petition hearing. If the state water commission finds it is not feasible, desirable, or practical to consolidate the petitioning districts, the commission shall deny the petition and state the reasons for denial. If the state water commission finds problems of flood control, watershed development or improvement, drainage, water supply, or other reasons make consolidation or boundary adjustment and establishment of the proposed water resource district desirable, the commission shall grant the petition and create the district. Upon creation of the new water resource district, the state water commission shall dissolve the included districts or make necessary boundary adjustments to existing districts.

When the petition is filed by the district boards, it must be accompanied by a certified copy of the resolution of the governing boards authorizing the signing of the petition. The petition must contain a detailed plan for the disposition of the property, assets, and liabilities of each of the districts. This plan must be as equitable as practicable to every landowner within the districts and must fully protect creditors and the holders of improvement warrants of the petitioning districts. The plan may provide for a continuance of assessments upon properties in the petitioning districts to retire outstanding obligations, or for the assumption of outstanding obligations and the spreading of assessments for the payment of the outstanding obligations over properties in the newly created district. The state water commission may not approve the petition unless the petition fully meets the requirements of this section.

Source:

S.L. 1993, ch. 602, § 1; 2021, ch. 488, § 146, eff August 1, 2021.

61-16-07. Water resource board — Appointment and number.

When a water resource district has been created, and the state water commission has filed notice with the county auditor of a county where the district or a part thereof is situated, a water resource board shall be appointed within ninety days, as provided herein. If the district’s boundaries are confined to one county, the board of county commissioners shall appoint a water resource board consisting of three or five managers. When a district includes two counties, the water resource board shall consist of five managers, three appointed by the board of county commissioners of the county having the larger aggregate taxable valuation of property, and two appointed by the board of county commissioners of the other county. If a district includes three counties, the water resource board shall consist of five managers, one appointed by the board of county commissioners having the lowest aggregate taxable valuation of property in the district, and two appointed by the board of county commissioners of each of the other two counties. If a district includes four or six counties, the water resource board shall consist of two members from the county having the largest aggregate taxable valuation of property in the district, and one manager from each of the other counties. If a district includes five or seven counties, the water resource board shall consist of one manager from each county. Appointments to the water resource board shall be made by the boards of county commissioners of the respective counties.

Source:

S.L. 1957, ch. 383, § 7; R.C. 1943, 1957 Supp., § 61-1607; S.L. 1967, ch. 474, § 3; 1973, ch. 500, § 4; 1981, ch. 632, § 5.

DECISIONS UNDER PRIOR LAW

Failure to Appoint Board.

Failure of a legally established district to appoint a board or exercise its powers for a period of fourteen and one-half years did not result in a dissolution of its corporate powers. Snortland v. Nelson County, 123 N.W.2d 288, 1963 N.D. LEXIS 109 (N.D. 1963).

61-16-08. Eligibility for appointment to board — Term of office — Removal — Filling vacancies — Compensation of managers.

  1. When a water resource district has been created, any resident landowner in the district, except a county commissioner, is eligible, subject to the provisions of this section, for appointment to the water resource board. After June 30, 1985, when the term of office of a district manager has expired, the manager’s successor shall hold office for three years from the first day of January next following the date of the successor’s appointment. The term of office of a manager does not terminate until the successor in office is appointed and qualified. In case the office of any district manager becomes vacant, the manager appointed to fill the vacancy shall serve the unexpired term of the manager whose office became vacant. Within three months after the start of an individual’s term as a district manager, the individual shall attend a course on water management, and each district manager shall attend a course on water management every three years during the manager’s term.
  2. While performing duties as a member of a water resource board, each member is entitled to receive compensation of at least seventy-five dollars per day but not more than the rate set for a member of the legislative assembly under section 54-03-20, an allowance for meals at the same rates and under the same conditions as provided by law for state officials and employees, and reimbursement of lodging and other necessary travel expenses at the same rate and under the same conditions as provided by law for state officials and employees. A request for an allowance or reimbursement must be evidenced by a subvoucher or receipt as provided by section 21-05-01.
  3. A manager may be removed from the board by the board of county commissioners after it appears to the board of county commissioners by competent evidence, and after a public hearing, if so requested by the manager subject to removal, at which hearing the manager must be apprised of and allowed ample opportunity to repudiate the evidence, that the manager has been guilty of misconduct, malfeasance, crime in office, neglect of duty in office, habitual drunkenness, gross incompetency, or inability to perform the duties of office for reasons of health.

Source:

S.L. 1957, ch. 383, § 8; R.C. 1943, 1957 Supp., § 61-1608; S.L. 1963, ch. 417, § 24; 1965, ch. 447, § 14; 1969, ch. 545, § 2; 1971, ch. 119, § 4; 1973, ch. 500, § 5; 1979, ch. 640, § 1; 1979, ch. 641, § 1; 1981, ch. 632, § 6; 1985, ch. 673, § 1; 1985, ch. 674, § 1; 2009, ch. 595, § 1; 2009, ch. 596, § 1; 2017, ch. 420, § 1, eff April 13, 2017; 2021, ch. 491, § 1, eff August 1, 2021.

61-16-08.1. Appointment of alternate board member due to conflict of interest or illness.

When a member of a water resource board has a conflict of interest in a specific issue before the board or is unable to fulfill the duties of a board member because of physical or mental illness, the county commissioners may appoint a person to serve as an alternate to the disqualified board member. If the disqualification is for a conflict of interest, the alternate board member is to serve only for the purpose of deciding the particular issue causing the conflict. If the disqualification is for physical or mental illness, the alternate board member is to be appointed by the county commissioners only for one meeting at a time.

Source:

S.L. 1985, ch. 675, § 1.

Notes to Decisions

Decision Not Nullified Due to Conflict.

North Dakota Legislature did not envision nullification of a proceeding where a disqualified board member casts a non-determinative vote; therefore, a decision of a water resource board was not nullified due to a vote by members owning land in a watershed district because the votes were not determinative of the outcome. Klindt v. Pembina County Water Res. Bd., 2005 ND 106, 697 N.W.2d 339, 2005 N.D. LEXIS 123 (N.D. 2005).

61-16-09. Oath of office — Organization of water resource board — Appointment of employees — Meetings.

Upon receiving notice of appointment as member of the water resource board, such appointee shall take the oath of office prescribed for civil officers. Such oath shall be filed with the secretary of the board. Notice of the appointment of a member or members of a water resource board shall be mailed to the state water commission. Such notice shall state the name and post-office address of each appointee and the date of appointment.

A majority of the managers shall constitute a quorum for the transaction of such business as may come before the board but any number may adjourn a meeting for want of a quorum. The water resource board shall appoint a secretary and treasurer and such other employees as needed for the efficient conduct of the district’s business and shall fix their compensation. The offices of secretary and treasurer may be held by the same person. Officers and employees shall hold office at the pleasure of the board.

The board shall provide an office suitable for its use as a meeting place and for conducting the affairs of the district. It shall adopt such rules for transacting the business of the district as it may deem necessary, including the time and place of holding regular meetings of the board. Special meetings may be called by the secretary on order of the chairman of the board or upon written request of two members of the board. Notice of a special meeting shall be mailed to each member of the board at least five days before any such meeting provided, that a special meeting may be held whenever all members of the board are present or consent thereto in writing.

Source:

S.L. 1957, ch. 383, § 9; R.C. 1943, 1957 Supp., § 61-1609; S.L. 1981, ch. 632, § 7.

Cross-References.

Meetings of public agencies open to public, see N.D. Const., art. XI, § 5; N.D.C.C. §§ 44-04-19 to 44-04-21.

Oath required of civil officers, see N.D. Const., art. XI, § 4; N.D.C.C. § 44-01-05.

61-16-10. Bonds of treasurer and appointive officers. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-11. Powers and duties of board of commissioners. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-11.1. Joint exercise of powers. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-12. District budget — Tax levy — Financing by special assessment. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-13. District may issue warrants in anticipation of taxes levied to pay current expenses. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-14. County treasurer to collect and remit taxes to district treasurer — Deposit of district funds. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-15. Construction and repair of dam — Proposals for — Presented to whom — Hearing proposals. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-16. Commission and board of commissioners shall encourage construction of dams and other water control devices. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

61-16-17. Dams constructed within a district shall come under control of board of commissioners. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-18. When dams constructed by federal agency under control of water management district. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-19. May contract with federal and state governments — Local districts, persons and corporations — Canadian government, provinces and municipalities — Acquire property in adjoining states and provinces. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-19.1. Contracts for construction or maintenance of project. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-20. Exemption of federal agencies from provisions of chapter — Purpose of chapter. [Repealed]

Repealed by S.L. 1969, ch. 545, § 5.

61-16-21. Financing project through special assessments or partly through general taxes and partly through special assessments — Apportionment of benefits. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-22. Financing of special improvements — Procedure. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-23. Resolution of board to include provision for protesting and refusing authority to make general tax levy in certain cases — Election to be held. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-24. When assessments may be made. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-25. Assessment lists. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-26. Assessment list to be prepared — Contents — Certificate attached to assessment list — Preparation of assessment list and notice of hearing of objection to list — Alteration of assessments at hearing — Limitations — Confirmation of assessment list of board certifying list — Filing. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-26.1. Reassessment of benefits. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-27. Correction of errors, and mistakes in special assessments — Regulations governing. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-28. Certification of assessments to county auditor. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-28.1. Removal of an obstruction to a drain — Notice and hearing — Appeal — Injunction — Definition. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-29. Extension of special assessments on tax lists — Collection — Payment to water management district. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-30. Lien of special assessment. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-31. Sale of property when general and special assessment taxes are delinquent. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-32. Warrants — Issuance — When payable — Amounts — Interest — Interest coupons. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-33. Warrants may be used in making payments on contract — Warrants payable out of fund on which drawn — May be used to pay special assessments. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-34. Refunding special assessment warrants — Purposes for which such warrants may be issued — Payment of warrants. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-34.1. Refunding outstanding refunding warrants — Terms and conditions. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-35. Financial reports — Liability for deficiencies. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-36. Appeal from decision of commission or board of commissioners — Undertaking — Jurisdiction. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-37. Appeal from decision of commission or board of commissioners — How to be taken. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-38. Time for taking appeal from commission or board of commissioners. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-39. Filing appeal — Docketing and hearing appeals — Final judgment and sending back. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-40. State’s attorney and attorney general to assist boards — Employment of counsel. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-41. Construction of bridges and culverts — Cost. [Repealed]

Repealed by S.L. 1963, ch. 421, § 22.

61-16-42. How district may be dissolved or land excluded therefrom. [Repealed]

Repealed by S.L. 1973, ch. 500, § 13.

61-16-43. Proceedings to judicially confirm contracts, special assessments and other acts. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-44. Penalty for violation of chapter. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-45. Validating organization and acts of water conservation and flood control districts. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

61-16-46. Drains along and across public roads and railroads. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-47. Construction of bridges and culverts — Costs. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-47.1. Culvert and pipe arch bids and acceptance. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

61-16-48. Consolidation of water management districts. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-49. Division of a water management district. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-50. Closing a noncomplying drain — Notice and hearing — Appeal — Injunction. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

61-16-51. Closing a noncomplying dike or dam — Notice and hearing — Appeal — Injunction. [Repealed]

Repealed by S.L. 1981, ch. 632, § 11.

CHAPTER 61-16.1 Operation of Water Resource Districts

61-16.1-01. Legislative intent and purpose.

The legislative assembly of North Dakota recognizes and declares that the general welfare and the protection of the lives, health, property, and the rights of all people of this state require that the management, conservation, protection, development, and control of waters in this state, navigable or non-navigable, surface or subsurface, the control of floods, the prevention of damage to property therefrom, involve and necessitate the exercise of the sovereign powers of this state and are affected with and concern a public purpose. To realize these objectives it is hereby declared to be the policy of the state to provide for the management, conservation, protection, development, and control of water resources and for the prevention of flood damage in the watersheds of this state and thereby to protect and promote the health, safety, and general welfare of the people of this state.

The legislative assembly further recognizes the significant achievements that have been made in the management, conservation, protection, development, and control of our water and related land resources, and declares that the most efficient and economical method of accelerating these achievements is to establish water resource districts encompassing all of the geographic area of the state, and emphasizing hydrologic boundaries.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-02. Definitions.

In this chapter, unless the context or subject matter otherwise provides:

  1. “Affected landowners” means landowners whose land is subject to special assessment or condemnation for a project.
  2. “Assessment drain” means any natural watercourse opened, or proposed to be opened, and improved for the purpose of drainage, and any artificial drain of any nature or description constructed for the purpose of drainage, including dikes and appurtenant works, which are financed in whole or in part by special assessment. This definition may include more than one watercourse or artificial channel constructed for the purpose of drainage when the watercourses or channels drain land within a practical drainage area.
  3. “Commission” means the state water commission.
  4. “Conservation” means planned management of water resources to prevent exploitation, destruction, neglect, or waste.
  5. “Costs of the frivolous complaint” means all reasonable costs associated with the requisite proceedings regarding the removal of obstructions to a drain, removal of a noncomplying dike or dam, or closing a noncomplying drain, including all reasonable construction costs; all reasonable attorney’s fees and legal expenses; all reasonable engineering fees, including investigation and determination costs; compliance inspections; and necessary technical memorandum and deficiency review; and all costs associated with any hearing conducted by a district, including preparation and issuance of any findings of fact and any final closure order.
  6. “District” means a water resource district.
  7. “Frivolous” means allegations and denials in any complaint filed with a district made without reasonable cause and not in good faith.
  8. “Project” means any undertaking for water conservation, flood control, water supply, water delivery, erosion control and watershed improvement, drainage of surface waters, collection, processing, and treatment of sewage, or discharge of sewage effluent, or any combination thereof, including incidental features of any such undertaking.
  9. “Water resource board” means the water resource district’s board of managers.

Source:

S.L. 1981, ch. 632, § 1; 1993, ch. 54, § 106; 2013, ch. 482, § 1.

Cross-References.

Definitions relating to drainage projects, see N.D.C.C. § 61-21-01.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-16.1-03. Water resource districts — Boundaries. [Repealed]

Repealed by S.L. 1985, ch. 678, § 2.

61-16.1-04. Minutes, books, and records.

The water resource board shall keep accurate minutes of its meetings and accurate records and books of account, clearly setting out and reflecting the entire operation, management, and business of the district. These books and records shall be kept at the principal office of the district or at such other regularly maintained office or offices of the district as shall be designated by the board, with due regard to the convenience of the district, its customers, and residents. The books and records shall be open to public inspection during reasonable business hours.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-05. Bonds of treasurer and appointive officers.

The treasurer of a district shall be bonded in the amount set by the water resource board but the bond shall not be less than one thousand dollars. Other district employees shall be bonded in any amount set by the board. Every officer or employee of whom a bond is required shall be deemed bonded with the state bonding fund upon notice of that appointment given to the state insurance commissioner by the secretary of the district. Upon notification by the state bonding fund of the premium required, the district treasurer shall remit the same.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Bonds of district officers, see N.D.C.C. §§ 44-01-07 to 44-01-12.

State bonding fund, see N.D.C.C. ch. 26.1-21.

61-16.1-06. District budget — Financial report — Tax levy — Financing by special assessment.

The fiscal year of the district begins January first and ends December thirty-first. The water resource board shall estimate the expenses of the district before October first of each year. Estimates of district expenses may include costs of rights of way, easements, or other interests in property deemed necessary for the construction, operation, and maintenance of any projects. The district budget may also include an amount necessary for future projects which are part of a master plan. In the year for which the levy is sought, a water resource board seeking approval of a property tax levy under this chapter must file with the county auditor of each county in the district, at a time and in a format prescribed by the county auditors, a financial report for the preceding calendar year showing the ending balances of each fund held by the water resource district during that year. Upon completion and adoption of a budget covering necessary expenses, the board shall send a copy of the budget to the county auditor of each county in the district. Each county auditor shall transmit the same to the board of county commissioners of that county. The board of county commissioners shall either disapprove the budget, amend and approve the budget as amended, or approve the budget as submitted and, if approved as amended or as submitted, the board shall, by resolution, levy and authorize and direct the county auditor to extend and spread upon the tax roll of the county or portion of the county in the district a tax not exceeding the limitation in section 57-15-26.6 in the same manner, and with the same effect, as general property taxes are extended and spread. Funds produced each year by the tax levy shall be available until expended, and if the tax levy in any year will not produce sufficient revenue to cover district expenses, a fund sufficient to pay the district expenses may be accumulated. The acquisition of rights of way, easements, and the construction, operation, and maintenance of a project in a district may, in the discretion of the water resource board, be financed in whole or in part by special assessments against property benefited by such project, or from revenues realized from general tax collections, or from net revenues to be derived from service charges to be imposed and collected for the services of the project, or any combination of such sources.

Source:

S.L. 1981, ch. 632, § 1; 1983, ch. 606, § 103; 1985, ch. 676, § 1; 1989, ch. 69, § 70; 2015, ch. 92, § 23, eff January 1, 2016.

61-16.1-07. District may issue warrants in anticipation of taxes levied to pay current expenses.

After a district has been established and organized and a water resource board has been appointed, the water resource board, for the purpose of paying current district expenses, including per diem, compensation, and expenses of managers and wages or salaries of officers and employees, by resolution, may authorize and issue district warrants in anticipation of and pending collection and receipt of taxes levied. The warrants shall bear the rate of interest set by the board, which shall not exceed twelve percent per annum on those issues sold at private sale. There is no interest rate ceiling on warrants sold at public sale or to the state of North Dakota or any of its agencies or instrumentalities. The district treasurer shall keep a register in which to enter each warrant issued, showing the date and amount of each warrant, the date of payment, and the amount paid in redemption thereof. All warrants shall be paid in order of their presentation for payment to the district treasurer. The warrants shall be drawn to the claimant or bearer in the same manner as a county warrant and shall be signed by the chairman of the water resource board and countersigned by the treasurer of the district. The aggregate total amount of warrants issued in any year to pay current district expenses shall not exceed eighty percent of the district’s tax levy for that year.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-08. County treasurer to collect and remit taxes to district treasurer — Investment of district funds — Expenditure of district funds.

The treasurer of each county in which a district, or a part of a district, is situated shall collect all district taxes and special assessments together with any penalty and interest thereon in the same manner as county taxes are collected, and shall, within twenty days after the close of each month, pay to the treasurer of the district those taxes and assessments collected during the preceding month, and shall notify the secretary of the district of the payment. In June and December of each year, and as the county commission may otherwise require, the district treasurer shall report to each member of the water resource board the amount of money in the district treasury, the amount of receipts in the preceding month, and items and amounts of expenditures. At each regular meeting of the board the treasurer shall submit to the board a statement of the district’s finances.

Each district may invest any money in the district treasury, including money in any sinking fund established for the purpose of providing for the payment of the principal or interest of any contract, bond, or other indebtedness or for any other purpose, not required for the immediate needs of the district, in accordance with chapter 21-04.

Funds of the district shall be paid out or expended only upon the authorization or approval of the water resource board and by check, draft, warrant, or other instrument in writing, signed by the treasurer, assistant treasurer, or any other officer, employee, or agent of the district authorized by the treasurer to sign on behalf of the treasurer. The authorization shall be in writing and filed with the secretary of the district.

Source:

S.L. 1981, ch. 632, § 1; 1985, ch. 677, § 1.

61-16.1-09. Powers of water resource board.

Each water resource board shall have the power and authority to:

  1. Sue and be sued in the name of the district.
  2. Exercise the power of eminent domain as follows:
    1. Except as permitted under subdivision b, the board shall comply with title 32 for the purpose of acquiring and securing by eminent domain any rights, titles, interests, estates, or easements necessary or proper to carry out the duties imposed by this chapter, and particularly to acquire the necessary rights in land for the construction of dams, flood control projects, and other water conservation, distribution, and supply works of any nature and to permit the flooding of lands, and to secure the right of access to such dams and other devices and the right of public access to any waters impounded thereby.
      1. If the interest sought to be acquired is an easement for a right of way for any project authorized in this chapter for which federal or state funds have been made available, the district may acquire the right of way by quick take eminent domain as authorized by section 16 of article I of the Constitution of North Dakota, after the district attempts to purchase the easement for the right of way by:
        1. Conducting informal negotiations for not less than sixty days.
        2. If informal negotiations fail, the district shall engage in formal negotiations by:
          1. Sending the landowner an appraisal and written offer for just compensation, which includes a specific description of the exact location of the right of way, by certified mail or commercial delivery requiring a signed receipt, and receiving the signed receipt or documentation of constructive notice.
          2. Sending the landowner a written request for a meeting by certified mail or commercial delivery requiring a signed receipt if there is no agreement regarding compensation or no response to the written offer within fifteen days of receipt, and receiving the signed receipt or documentation of constructive notice.
          3. Sending the landowner a written notice, by certified mail or commercial delivery requiring a signed receipt, of intent to take possession of the right of way if there is no agreement regarding compensation or no response to the written request for a meeting within thirty days of receipt, and receiving the signed receipt or documentation of constructive notice.
      2. Any written communication to the landowner must include contact information for responding to the board and a description of the required negotiation timeline.
      3. A district may not include or utilize any reference to quick take eminent domain during negotiations to acquire the necessary easement for a right of way. If formal negotiation efforts fail, the district shall request approval from the board of county commissioners of the county in which the right of way is located to take possession of the right of way by quick take eminent domain. After receiving the request, the county commissioners shall hold a public meeting and give the landowner thirty days’ notice of the meeting to allow the landowner to attend. After receiving verification from the district that there has been no reference or threat of quick take eminent domain by the district during negotiations, the commissioners shall vote on whether to approve the taking of the easement for a right of way using quick take eminent domain. If the county commissioners approve the use of quick take eminent domain by a majority vote, the district may take immediate possession of the right of way, but not a blanket easement, if the district files an affidavit by the chairman of the water resource board which states the district has fulfilled the required negotiation steps and deposits the amount of the written offer with the clerk of the district court of the county in which the right of way is located.
      4. Within thirty days after notice has been given in writing to the landowner by the clerk of the district court that a deposit has been made for the taking of a right of way as authorized in this subsection, the owner of the property taken may appeal to the district court by serving a notice of appeal upon the acquiring agency, and the matter must be tried at the next regular or special term of court with a jury unless a jury be waived, in the manner prescribed for trials under chapter 32-15.
      5. If ownership of a right of way has not terminated, ownership of a right of way acquired under this subdivision terminates automatically when the district no longer needs the right of way for the purpose for which it was acquired.
  3. Accept funds and property or other assistance, financial or otherwise, from federal, state, and other public or private sources for the purposes of aiding the construction or maintenance of water conservation, distribution, and flood control projects; and cooperate and contract with the state or federal government, or any department or agency thereof, or any municipality within the district, in furnishing assurances and meeting local cooperation requirements of any project involving control, conservation, distribution, and use of water.
  4. Procure the services of engineers and other technical experts, and employ an attorney or attorneys to assist, advise, and act for it in its proceedings.
  5. Plan, locate, relocate, construct, reconstruct, modify, maintain, repair, and control all dams and water conservation and management devices of every nature and water channels, and to control and regulate the same and all reservoirs, artificial lakes, and other water storage devices within the district.
  6. Maintain and control the water levels and the flow of water in the bodies of water and streams involved in water conservation and flood control projects within the district and regulate streams, channels, or watercourses and the flow of water therein by changing, widening, deepening, or straightening the same, or otherwise improving the use and capacity thereof.
  7. Regulate and control water for the prevention of floods and flood damages by deepening, widening, straightening, or diking the channels or floodplains of any stream or watercourse within the district, and construct reservoirs or other structures to impound and regulate such waters.
  8. Make rules and regulations concerning the management, control, regulation, and conservation of waters and prevent the pollution, contamination, or other misuse of the water resources, streams, or bodies of water included within the district.
  9. Do all things reasonably necessary and proper to preserve the benefits to be derived from the conservation, control, and regulation of the water resources of this state.
  10. Construct, operate, and maintain recreational facilities, including beaches, swimming areas, boat docking and landing facilities, toilets, wells, picnic tables, trash receptacles, and parking areas, and to establish and enforce rules and regulations for the use thereof.
  11. Have, in addition to any powers provided in this chapter, the authority to construct an assessment drain in accordance with the procedures and provisions of chapter 61-21.
  12. Acquire by lease, purchase, gift, condemnation, or other lawful means and to hold in its corporate name for its use and control both real and personal property and easements and rights of way within or without the limits of the district for all purposes authorized by law or necessary to the exercise of any other stated power.
  13. Convey, sell, dispose of, or lease personal and real property of the district as provided by this chapter.
  14. Authorize and issue warrants to finance construction of water conservation and flood control projects, assess benefited property for part or all of the cost of such projects, and require appropriations and tax levies to maintain sinking funds for construction warrants on a cash basis at all times.
  15. Borrow money within the limitations imposed by this chapter for projects herein authorized and pledge security for the repayment of such loans.
  16. Order or initiate appropriate legal action to compel the entity responsible for the maintenance and repair of any bridge or culvert to remove from under, within, and around such bridge or culvert all dirt, rocks, weeds, brush, shrubbery, other debris, and any artificial block which hinders or decreases the flow of water through such bridge or culvert.
  17. Order or initiate appropriate legal action to compel the cessation of the destruction of native woodland bordering within two hundred feet [60.96 meters] of that portion of a riverbank subject to overflow flooding that will cause extensive property damage, or in the alternative, order, that, if such destruction is permitted, the party or parties responsible for the destruction must, when the board has determined that such destruction will cause excessive property damage from overflow flooding due to the erosion or blocking of the river channel, plant a shelterbelt which meets the specifications of the board. In the event the native woodland within such area has already been destroyed, the board may, in its discretion, order the planting of a shelterbelt which, in the judgment of the board, will curtail the erosion or blocking of such river channel where overflow flooding has caused extensive property damage. For purposes of this subsection, the words “riverbank” and “river channel” relate to rivers as defined in the United States geological survey base map of North Dakota, edition of 1963. The provisions of this subsection shall not be construed to limit, impair, or abrogate the rights, powers, duties, or functions of any federal, state, or local entity to construct and maintain any flood control, irrigation, recreational, or municipal or industrial water supply project.
  18. Petition any zoning authority established pursuant to chapter 11-33, 11-35, or 40-47 or section 58-03-13 to assume jurisdiction over a floodplain for zoning purposes when such zoning is required to regulate and enforce the placement, erection, construction, reconstruction, repair, and use of buildings and structures to protect and promote the health, safety, and general welfare of the public within a floodplain area. In the event such zoning authority fails to act or does not exist, the board may request the state water commission to assist it in a study to determine and delineate the floodplain area. Upon completion of such study, the board shall make suitable recommendations for the establishment of a floodplain zone to all zoning authorities and the governing bodies of all political subdivisions having jurisdiction within the floodplain area.
  19. Plan, locate, relocate, construct, reconstruct, modify, extend, improve, operate, maintain, and repair sanitary and storm sewer systems, or combinations thereof, including sewage and water treatment plants, and regulate the quantity of sewage effluent discharged from municipal lagoons; and contract with the United States government, or any department or agency thereof, or any private or public corporation or limited liability company, the government of this state, or any department, agency, or political subdivision thereof, or any municipality or person with respect to any such systems.
  20. Develop water supply systems, store and transport water, and provide, contract for, and furnish water service for domestic, municipal, and rural water purposes, irrigation, milling, manufacturing, mining, metallurgical, and any and all other beneficial uses, and fix the terms and rates therefor. Each district may acquire, construct, operate, and maintain dams, reservoirs, ground water storage areas, canals, conduits, pipelines, tunnels, and any and all works, facilities, improvements, and property necessary therefor.
  21. Coordinate proposals for installation, modification, or construction of culverts and bridges in an effort to achieve appropriate sizing and maximum consistency of road openings. The department of transportation, railroads, counties, and townships shall cooperate with the districts in this effort. Each district shall also consider the possibility of incorporating appropriate water control structures, where appropriate, as a part of such road openings.
  22. Plug abandoned water wells and participate in cost-sharing arrangements with water well owners to plug water wells to protect aquifers from pollution or depletion, maintain pressure, and prevent damage to surrounding property.
  23. Have, in addition to any powers provided in this chapter, the authority to conduct weather modification operations in accordance with the procedures and provisions of chapter 61-04.1.

Source:

S.L. 1981, ch. 632, § 1; 1987, ch. 492, § 2; 1989, ch. 746, § 2; 1993, ch. 54, § 106; 1993, ch. 599, § 2; 1993, ch. 603, § 1; 2009, 597, § 1; 2017, ch. 421, § 1, eff August 1, 2017.

Notes to Decisions

Decision Making Authority.

Although this section allows a water resource board to advise a township on the installation of a culvert, the statute does not give the board any decision making authority to control the process. Kadlec v. Greendale Twp. Bd. of Twp. Supervisors, 1998 ND 165, 583 N.W.2d 817, 1998 N.D. LEXIS 183 (N.D. 1998), limited, Pembina County Water Res. Bd. v. Cavalier County Water Res. Bd., 2010 ND 148, 787 N.W.2d 295, 2010 N.D. LEXIS 152 (N.D. 2010).

Water Resource Board did not have authority to order installation of a culvert under a township road in a natural watercourse because township boards have supervisory authority to decide whether to install a culvert beneath a township road to preserve a natural drainway for surface waters under N.D.C.C. § 24-03-06. Burlington Northern & Santa Fe Ry. v. Benson County Water Resource Dist., 2000 ND 182, 618 N.W.2d 155, 2000 N.D. LEXIS 199 (N.D. 2000).

Eminent Domain.

There is nothing in the general language of subsection 12 of this section, relating to methods of acquiring property, which indicates a legislative intent to deviate from the specific language of subsection 2 of this section limiting the county water resource board’s exercise of the power of eminent domain to the manner provided by title 32. Johnson v. Wells County Water Resource Bd., 410 N.W.2d 525, 1987 N.D. LEXIS 389 (N.D. 1987).

Quick Take Authority.

Without legislation specifically granting quick take authority to the county water resource board to carry into effect the quick take provision of N.D. Const., Art. I, § 16, the board lacks authority to acquire flowage easements through the quick take provision of the constitution in its exercise of the power of eminent domain conferred upon it in this section. Johnson v. Wells County Water Resource Bd., 410 N.W.2d 525, 1987 N.D. LEXIS 389 (N.D. 1987).

Wildlife Refuge Act.

The terms of the Wildlife Refuge Act are to be given their full effect, and any conflict with state law should be dealt with on a case-by-case basis. United States v. Vesterso, 828 F.2d 1234, 1987 U.S. App. LEXIS 11509 (8th Cir. N.D. 1987).

Law Reviews.

Waterfowl Production Areas: A State Perspective, 60 N.D. L. Rev. 659 (1984).

61-16.1-09.1. Watercourses, bridges, and low-water crossings.

  1. A water resource board may undertake the snagging, clearing, and maintaining of natural watercourses and the debrisment of bridges and low-water crossings. The board may finance the project in whole or in part with funds raised through the collection of a special assessment levied against the land and premises benefited by the project. The benefits of a project must be determined in the manner provided in section 61-16.1-17. Revenue from an assessment under this section may not be used for construction of a drain or reconstruction or maintenance of an existing assessment drain. Any question as to whether the board is maintaining a natural watercourse or is constructing a drain or reconstructing or maintaining an existing assessment drain must be resolved by the department of water resources. All provisions of this chapter apply to assessments levied under this section except:
    1. An assessment may not exceed fifty cents per acre [.40 hectare] annually on agricultural lands and may not exceed fifty cents annually for each five hundred dollars of taxable valuation of nonagricultural property; and
    2. If the assessment is for a project costing less than one hundred thousand dollars, no action is required for the establishment of the assessment district or the assessments except the board must approve the project and assessment by a vote of two-thirds of the members and the board of county commissioners of the county in which the project is located must approve and levy the assessments to be made by a vote of two-thirds of its members.
      1. If a board that undertakes a project finds the project will benefit lands outside water resource district boundaries, the board shall provide notice to the water resource board where the benefited lands are located together with the report prepared under section 61-16.1-17.
      2. The board of each water resource district containing lands benefited by a project must approve the project and assessment by a vote of two-thirds of its members. The board of county commissioners in each county that contains lands benefited by a project must approve and levy the assessment to be made by a vote of two-thirds of its members.
      3. If a project and assessment is not approved by all affected water resource boards and county commission boards, the board of each water resource district and the board of county commissioners of each county shall meet to ensure all common water management problems are resolved pursuant to section 61-16.1-10. In addition, the water resource board that undertakes the project may proceed with the project if the board finances the cost of the project and does not assess land outside the boundaries of the district.
    3. All revenue from an assessment under this section must be exhausted before a subsequent assessment covering any portion of lands subject to a prior assessment may be levied.
  2. Before an assessment may be levied under this section, a public hearing must be held and attended by a quorum of the affected water resource boards and a quorum of the affected boards of county commissioners. The hearing must be preceded by notice as to date, time, location, and subject matter published in the official newspaper in the county or counties in which the proposed assessment is to be levied. The notice must be published at least ten days but not more than thirty days before the public hearing.

Source:

S.L. 2001, ch. 566, § 1; 2003, ch. 552, § 1; 2005, ch. 592, § 1; 2021, ch. 488, § 147, eff August 1, 2021.

Notes to Decisions

Persons Benefited.

There is nothing in the language of N.D.C.C. § 61-16.1-09.1(1) or in the legislative history of the 2003 amendment that precludes a water resource board from finding that an entire watershed would be benefited by a snagging and clearing project, even if the legislative intention of the amendment was to allow assessments of less than all of the land within a watershed. Klindt v. Pembina County Water Res. Bd., 2005 ND 106, 697 N.W.2d 339, 2005 N.D. LEXIS 123 (N.D. 2005).

Although there was sufficient evidence to support a decision that an entire watershed would have benefited from a snagging and clearing project under N.D.C.C. § 61-16.1-09.1(1), it was arbitrary and unreasonable to decide to assess the costs of the project only against certain landowners in the district under N.D.C.C. § 61-16.1-15; however, the decision to dissolve the entire project was too harsh a remedy. Klindt v. Pembina County Water Res. Bd., 2005 ND 106, 697 N.W.2d 339, 2005 N.D. LEXIS 123 (N.D. 2005).

Review of Assessment Procedure.

In a dispute regarding a clearing and snagging project, several landowners were not required to appeal a determination of benefited land to a state engineer to exhaust their administrative remedies prior to appealing to a district court because the cost of the project was less than $100,000; therefore, N.D.C.C. § 61-16.1-23 did not apply as N.D.C.C. § 61-16.1-23 applies only after the provisions of N.D.C.C. § 61-16.1-22 have been followed and projects costing less than $ 100,000 are not subject to the assessment procedures required by N.D.C.C. § 61-16.1-22. N.D.C.C. § 61-16.1-09.1(1)(b) makes provision for approval of a project and assessments for a project costing less than one hundred thousand dollars. Klindt v. Pembina County Water Res. Bd., 2005 ND 106, 697 N.W.2d 339, 2005 N.D. LEXIS 123 (N.D. 2005).

61-16.1-09.2. Release of easements — Procedure.

When it deems such action to be in the best interests of the district or other political subdivision, a water resource board or governing body of another political subdivision may release easements assigned to it from the state for the construction, operation, and maintenance of dams, along with access to the dams, if the dams are no longer useful.

Source:

S.L. 2003, ch. 550, § 2.

61-16.1-10. Responsibilities and duties of water resource board.

Each water resource board shall:

  1. Meet jointly with other water resource boards within a common river basin at least twice each year at times and places as mutually agreed upon for the purpose of reviewing and coordinating efforts for the maximum benefit of the entire river basin.
  2. Cooperate with other water resource boards of a common river basin and provide mutual assistance to the maximum extent possible.
  3. Exercise jointly with other water resource districts within a river basin to effectively resolve the significant and common water resource management problem or problems of the river basin or region and to jointly develop a comprehensive plan for the river basin or region.
  4. Encourage all landowners to retain water on the land to the maximum extent possible in accordance with sound water management policies, and carry out to the maximum extent possible the water management policy that upstream landowners and districts that have artificially altered the hydrologic scheme must share with downstream landowners the responsibility of providing for proper management and control of surface waters.
  5. Address and consider fully in the planning of any surface water project the downstream impacts caused by the project. A determination of whether to proceed with the construction of a project shall be based on the following principles:
    1. Reasonable necessity of the project.
    2. Reasonable care to be taken to avoid unnecessary injury by fully considering all alternatives.
    3. Consideration of whether the utility or benefit accruing from the project reasonably outweighs the adverse impacts resulting from the project.
  6. Require that appropriate easements be obtained in accordance with applicable state and federal law when projects will cause an adverse impact to lands of other landowners.

Source:

S.L. 1981, ch. 632, § 1; 1985, ch. 678, § 1.

61-16.1-11. Joint exercise of powers.

  1. Two or more districts may, by agreement, jointly or cooperatively exercise any power which is authorized a board by this title. The agreement shall state its purpose and the powers to be exercised, and shall provide for the method by which the power or powers shall be exercised. When the agreement provides for the use of a joint water resource board, the joint board shall be representative of the boards which are parties to the agreement. Notwithstanding other provisions of law, the agreement may specify the number, composition, terms, or qualifications of the members of the joint board. A joint board created under this section is a political subdivision of the state.
  2. The districts which are parties to such an agreement may provide for disbursements from their individual budgets to carry out the purpose of the agreement. In addition, a joint board established pursuant to this section may adopt, by resolution, on or before July first of each year, a budget showing estimated expenses for the ensuing fiscal year and the proposed contributions of each member district as determined by the agreement. The boards of the member districts then shall levy by resolution a tax not to exceed two mills upon the taxable valuation of the real property within each district within the river basin or region subject to the joint agreement. The levy may be in excess of any other levy authorized for a district.
  3. The proceeds of one-half of this levy shall be credited to the joint board’s administrative fund and shall be used for regulatory activities and for the construction and maintenance of projects of common benefit to the member districts. The remainder shall be credited to the construction funds of the joint board and shall be used for the construction and maintenance of projects of common benefit to more than one district.
  4. Funds may be paid to and disbursed by the joint board as agreed upon, but the method of disbursement shall agree as far as practicable with the method provided by law for the disbursement of funds by individual districts. Contracts let and purchases made under the agreements shall conform to the requirements applicable to contracts and purchases by individual districts. The joint board shall be accountable for all funds and reports of all receipts and disbursements to the state water commission in a manner prescribed by the commission.
  5. The agreement may be continued for a definite term or until rescinded or terminated in accordance with its terms. The agreement shall provide for the disposition of any property required as the result of a joint or cooperative exercise of powers, and the return of any surplus moneys in proportion to contributions of the several contracting districts after the purpose of the agreement has been completed.
  6. Residence requirements for holding office in a district shall not apply to any officer appointed to carry out any agreement.
  7. This section does not dispense with procedural requirements of any other statute providing for the joint or cooperative exercise of any governmental power.

Source:

S.L. 1981, ch. 632, § 1; 1985, ch. 679, § 1; 2003, ch. 553, § 1.

Cross-References.

Joint exercise of governmental powers, see N.D.C.C. ch. 54-40.

61-16.1-12. Scope of water resource board’s extraterritorial contractual authority — Board may acquire property in adjoining states and provinces.

A water resource board shall have the right, power, and authority to enter into contracts or other arrangements for water conservation, water supply, flood control, or other authorized projects with the United States government or any department thereof, with the Canadian government or any department thereof or any of its provinces or municipalities, with persons, railroads, other corporations, or limited liability companies, with public corporations, and state governments of this or other states, with drainage, water resource, conservation, conservancy, or improvement districts, or other such districts in this or other states. Such contracts or arrangements can provide for cooperation or assistance in planning, constructing, maintaining, and operating such projects and in making investigations and reports thereon, and for the carrying out of any other provision of this chapter. A water resource board may purchase, lease, or acquire land or other property in adjoining states or provinces to secure outlets to construct and maintain dikes or dams, or for other purposes authorized by this chapter and may let contracts or spend money for securing such outlets or works in adjoining states or provinces. No water resource board of any district shall have the right, power, or authority to connect boundary waters having different natural outlets by artificial means so that the waters of one may be discharged into the other.

Source:

S.L. 1981, ch. 632, § 1; 1993, ch. 54, § 106.

61-16.1-12.1. Water resource boards — Agreements with state or federal agencies for certain improvements.

A water resource board may enter into an agreement with any federal or state agency, or any combination thereof, for the construction of a project, under the terms of which the contract for the work is to be let by the federal or state agency or any combination thereof. If under the terms of the agreement at least fifty percent of the total cost of constructing the project is to be paid by the agency or agencies and if any portion of the cost of the project is to be paid by the levy of special assessments, the board may by resolution create a project assessment district for the purpose of levying special assessments to finance the amount that the district will be obligated to pay in accordance with the agreement, over and above any other funds which are on hand and properly available for that purpose. The assessment district must be of a size and form as to include all properties which in the judgment of the board, after consultation with a registered engineer designated by the board for that purpose, will be benefited by the construction of the proposed project, and the board shall direct the engineer to prepare a map showing the boundaries of the proposed assessment district. The board shall by resolution declare the necessity of the project, set forth the general nature and purpose of the proposed project, estimate the total cost of the project, and the approximate amount or fraction of the cost which the district will be obligated to pay under the agreement, and the fact that this amount, or a lesser amount as the board may specify, is proposed to be paid by the levy of special assessments upon property within the assessment district determined to be benefited by the project. The board shall cause the resolution of necessity together with a copy of the map showing the boundaries of the assessment district and a notice stating the date and time by which the owners of any property liable to be specially assessed for the proposed project must file their votes on the proposed project with the secretary of the board to be mailed to each landowner affected by the proposed project as determined by the tax rolls of the county in which the affected property is located. The board may send the material by certified mail or by regular mail attested by an affidavit of mailing signed by the attorney or secretary of the board. The notice must also set forth the time and place where the board shall meet to determine whether the project is approved. The notice must also be published once in a newspaper of general circulation in the district and once in the official county newspaper of each county in which the benefited lands are located. Within five days after the first mailing of the resolution the board shall cause a copy of the resolution to be personally served upon any county, city, or township, in its corporate capacity which may be benefited directly or indirectly from the construction of the proposed project and upon any county which may become liable for any deficiency in the fund to be created for the project, by delivering a copy of the resolution to any member of the governing body thereof. The meeting must be held not less than thirty days after the mailing of the resolution, at which time the board shall determine whether the project is approved. If the board finds that fifty percent or more of the total votes filed are against a proposed project, then the board may not proceed further with the proposed project. If the board finds that less than fifty percent of votes filed are against the proposed project, the board may proceed with the project. In any assessment district created under this section the board may dispense with all other requirements of this chapter, other than those stated in this section. After the contract for the work has been let, the board may issue warrants on the fund of the project for the total amount of the cost thereof, and the board, without holding the hearing required by section 61-16.1-18, shall proceed to determine and levy any assessments against property benefited by the project and prepare an assessment list all in accordance with the procedures required by sections 61-16.1-21 through 61-16.1-24. The provisions of sections 61-16.1-25 through 61-16.1-36 are applicable to the assessments and the special warrants issued pursuant to this section.

Source:

S.L. 1987, ch. 741, § 1; 1989, ch. 752, § 1.

61-16.1-13. Master plans. [Repealed]

Repealed by S.L. 1985, ch. 678, § 2.

61-16.1-14. Contracts for construction or maintenance of project.

If the cost of construction or maintenance of a project does not exceed the amount provided for construction of a public improvement under section 48-01.2-02, the work may be done on a day work basis or a contract may be let without being advertised. If the cost of the construction or maintenance exceeds the amount provided for construction of a public improvement under section 48-01.2-02, the board must let a contract in accordance with chapter 48-01.2.

Source:

S.L. 1981, ch. 632, § 1; 1993, ch. 604, § 1; 1995, ch. 443, § 25; 2003, ch. 554, § 1; 2007, ch. 403, § 21.

Cross-References.

Contracts for cleaning or repairing drains, see N.D.C.C. § 61-21-45.

Letting contracts for construction of drains, see N.D.C.C. §§ 61-21-24, 61-21-25.

Licensing contractors, see N.D.C.C. ch. 43-07.

Preferences in awarding public contracts, see N.D.C.C. §§ 44-08-01 to 44-08-02.

61-16.1-15. Financing project through revenue bonds, general taxes, or special assessments — Apportionment of benefits.

A water resource board shall have the authority, either upon request or by its own motion, to acquire needed interest in property and provide for the cost of construction, alteration, repair, operation, and maintenance of a project through issuance of improvement warrants or with funds raised by special assessments, general tax levy, issuance of revenue bonds, or by a combination of general ad valorem tax, special assessments, and revenue bonds. Whenever a water resource board decides to acquire property or interests in property to construct, operate, alter, repair, or maintain a project with funds raised in whole or in part through special assessments, such assessments shall be apportioned to and spread upon lands or premises benefited by the project in proportion to and in accordance with benefits accruing thereto. The board shall assess the proportion of the cost of the project, or the part of the cost to be financed with funds raised through levy and collection of special assessments which any lot, piece, or parcel of land shall bear in proportion to the benefits accruing thereto and any county, city, or township which is benefited thereby. In determining assessments, the water resource board shall carry out to the maximum extent possible the water management policy of this chapter that upstream landowners must share with downstream landowners the responsibility to provide for the proper management of surface waters.

Source:

S.L. 1981, ch. 632, § 1.

Notes to Decisions

Assessment Improper.

Although there was sufficient evidence to support a decision that an entire watershed would have benefited from a snagging and clearing project under N.D.C.C. § 61-16.1-09.1(1), it was arbitrary and unreasonable to decide to assess the costs of the project only against certain landowners in the district under N.D.C.C. § 61-16.1-15; however, the decision to dissolve the entire project was too harsh a remedy. Klindt v. Pembina County Water Res. Bd., 2005 ND 106, 697 N.W.2d 339, 2005 N.D. LEXIS 123 (N.D. 2005).

61-16.1-16. Revenue bonds.

Each district shall have the power and authority to issue revenue bonds, not exceeding an aggregate total outstanding of fifty million dollars, for the purpose of financing construction of projects and incidental facilities authorized by this chapter. Issuance of revenue bonds must be approved by two-thirds of all of the members of the water resource board. The district shall pledge sufficient revenue from any revenue-producing facility constructed with the aid of revenue bonds for the payment of principal and interest on the bonds and shall establish rates for the facilities at a sufficient level to provide for the operation of such facilities and for the bond payments. Revenue bonds shall not be a general obligation of any county and shall not be secured by property taxes.

Source:

S.L. 1981, ch. 632, § 1; 1987, ch. 259, § 14; 2017, ch. 422, § 1, eff August 1, 2017.

61-16.1-17. Financing of special improvements — Procedure.

When it is proposed to finance in whole or in part the construction of a project with funds raised through the collection of special assessments levied against lands and premises benefited by construction and maintenance of such project, the water resource board shall examine the proposed project, and if in its opinion further proceedings are warranted, it shall adopt a resolution and declare that it is necessary to construct and maintain the project. The resolution shall briefly state the nature and purpose of the proposed project and shall designate a registered engineer to assist the board. For the purpose of making examinations or surveys, the board or its employees, after written notice to each landowner, may enter upon any land on which the proposed project is located or any other lands necessary to gain access. The engineer shall prepare profiles, plans, and specifications of the proposed project and estimates of the total cost thereof. The estimate of costs prepared by the engineer shall include acquisition of right of way and shall be in sufficient detail to allow the board to determine the probable share of the total costs that will be assessed against each of the affected landowners in the proposed project assessment district.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-18. Hearing — Notice — Contents.

Upon the filing of the engineer’s report provided for in section 61-16.1-17, and after satisfying the requirements of section 61-16.1-21, the water resource board shall fix a date and place for public hearing on the proposed project. The place of hearing must be in the vicinity of the proposed project and must be convenient and accessible for the majority of the landowners subject to assessment for the project or whose property is subject to condemnation for the proposed project. The board shall cause a complete list of the benefits and assessments to be made, setting forth each county, township, or city assessed in its corporate capacity as well as each lot, piece, or parcel of land assessed, the amount each is benefited by the improvement and the amount assessed against each. At least ten days before the hearing, the board shall file with the county auditor of each county or counties in which the project is or will be located the list showing the percentage assessment against each parcel of land benefited by the proposed project and the approximate assessment in terms of money apportioned thereto. Notice of the filing must be included in the notice of hearing. Notices of the hearing must contain a copy of the resolution of the board as well as the time and place where the board will conduct the hearing. The notice of hearing must specify the general nature of the project as finally determined by the engineer and the board. The notice of hearing must also specify when and where votes concerning the proposed project may be filed. The assessment list showing the percentage assessment against each parcel of land benefited by the proposed project and the approximate assessment in terms of money apportioned thereto, along with a copy of the notice of the hearing, must be mailed to each affected landowner at the landowner’s address as shown by the tax rolls of the county or counties in which the affected property is located. The board may send the assessment list and notice by regular mail attested by an affidavit of mailing signed by the attorney or secretary of the board. The board shall cause the notice of hearing to be published once a week for two consecutive weeks in the newspaper or newspapers of general circulation in the area in which the affected landowners reside and in the official county newspaper of each county in which the benefited lands are located. The date set for the hearing must not be less than twenty days after the mailing of the notice. A record of the hearing must be made by the board, including a list of affected landowners present in person or by agent, and the record must be preserved in the minutes of the meeting. Affected landowners, and the governing body of any county, township, or city to be assessed, must be informed at the hearing of the probable total cost of the project and their individual share of the cost and the portion of their property, if any, to be condemned for the project.

Source:

S.L. 1981, ch. 632, § 1; 1989, ch. 752, § 2; 1999, ch. 539, § 1.

Cross-References.

Official county newspaper, see N.D.C.C. ch. 46-06.

61-16.1-19. Voting on proposed projects.

At the hearing, the affected landowners, and any county, township, or city to be assessed, must also be informed when and where votes concerning the proposed project may be filed. Affected landowners, and the governing body of any county, township, or city to be assessed, have thirty days after the date of the hearing to file their votes with the secretary of the water resource board concerning the project. Once the deadline for filing votes has been reached, no more votes may be filed and no person may withdraw a vote. Any withdrawal of a vote concerning the proposed project before that time must be in writing. When the votes have been filed and the deadline for filing votes has passed, the board shall immediately determine whether the project is approved. If the board finds that fifty percent or more of the total votes filed are against the proposed project, then the vote constitutes a bar against proceeding further with the project. If the board finds that the number of votes filed against the proposed project is less than fifty percent of the votes filed, the board shall issue an order establishing the proposed project and may proceed, after complying with the requirements of sections 61-16.1-21 and 61-16.1-22, to contract or provide for the construction or maintenance of the project in substantially the manner and according to the forms and procedure provided in title 40 for the construction of sewers within municipalities. The board may enter into an agreement with any federal or state agency under the terms of which the contract for the project is to be let by the federal agency, the state agency, or a combination thereof. In projects in which there is an agreement that a party other than the board will let the contract, the board may dispense with all of the requirements of title 40. Upon making an order establishing or denying establishment of a project, the board shall publish notice of the order in a newspaper of general circulation in the area in which the affected landowners reside and in the official county newspaper of each county in which the benefited lands are located. Any right of appeal begins to run on the date of publication of the notice. As used in this section, “board” means water resource board.

Source:

S.L. 1981, ch. 632, § 1; 1987, ch. 492, § 3; 1989, ch. 752, § 3.

61-16.1-20. Voting right or powers of landowners.

In order that there may be a fair relation between the amount of liability for assessments and the power of objecting to the establishment of a proposed project, the voting rights of affected landowners on the question of establishing the project are as provided in this section. The landowner or landowners of tracts of land affected by the project have one vote for each dollar of assessment that the land is subject to or one vote for each dollar of the assessed valuation of land condemned for the project, as determined in accordance with title 57. The governing body of any county, township, or city to be assessed also has one vote for each dollar of assessment against such county, township, or city. There may be only one vote for each dollar of assessment, regardless of the number of owners of such tract of land. Where more than one owner of such land exists, the votes must be prorated among them in accordance with each owner’s property interest. A written power of attorney authorizes an agent to protest a project on behalf of any affected landowner or landowners.

Source:

S.L. 1981, ch. 632, § 1; 1989, ch. 69, § 71.

Cross-References.

Drainage projects, voting rights of affected landowners, see N.D.C.C. § 61-21-16.

61-16.1-21. Assessment of cost of project.

Whenever the water resource board proposes to make any special assessment under the provisions of this chapter, the board, prior to the hearing required under section 61-16.1-18, shall inspect any and all lots and parcels of land, which may be subject to assessment and shall determine from the inspection the particular lots and parcels of lands which, in the opinion of the board, will be especially benefited by the construction of the work for which the assessment is made and shall assess the proportion of the total cost of acquiring right of way and constructing and maintaining such improvement in accordance with benefits received but not exceeding such benefits, against:

  1. Any county, township, or city, in its corporate capacity, which may be benefited directly or indirectly thereby.
  2. Any lot, piece, or parcel of land which is directly benefited by such improvement.

In determining benefits the board shall consider, among other factors, property values, degree of improvement of properties, productivity, and the water management policy as expressed in section 61-16.1-15. Property belonging to the United States shall be exempt from such assessment, unless the United States has provided for the payment of any assessment which may be levied against its property for benefits received. Benefited property belonging to counties, cities, school districts, park districts, and townships shall not be exempt from such assessment and political subdivisions whose property is so assessed shall provide for the payment of such assessments, installments thereof, and interest thereon, by the levy of taxes according to law. Any county, township, or city assessed in its corporate capacity for benefits received shall provide for the payment of such assessments, installments thereof, and interest thereon from its general fund or by levy of a general property tax against all the taxable property therein in accordance with law. No tax limitation provided by any statute of this state shall apply to tax levies made by any such political subdivision for the purpose of paying any special assessments made in accordance with the provisions of this chapter. There shall be attached to the list of assessments a certificate signed by a majority of the members of the board certifying that the same is a true and correct assessment of the benefit therein described to the best of their judgment and stating the several items of expense included in the assessment.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Assessments for drainage projects, see N.D.C.C. §§ 61-21-20 to 61-21-30.

61-16.1-22. Assessment list to be published — Notice of hearing — Alteration of assessments — Confirmation of assessment list — Filing.

After entering an order establishing the project, the water resource board shall cause the assessment list to be published once each week for three successive weeks in the newspaper or newspapers of general circulation in the district and in the official county newspaper of each county in which the benefited lands are located together with a notice of the time when, and place where, the board will meet to hear objections to any assessment by any interested party, or an agent or attorney for that party. The board also shall mail a copy of the notice of the hearing in an envelope clearly marked “ASSESSMENT NOTICE” to each affected landowner at the landowner’s address as shown by the tax rolls of the county or counties in which the affected property is located. The date set for the hearing may not be less than thirty days after the mailing of the notice. At the hearing, the board may make such alterations in the assessments as in its opinion may be just and necessary to correct any error in the assessment but must make the aggregate of all assessments equal to the total amount required to pay the entire cost of the work for which the assessments are made, or the part of the cost to be paid by special assessment. An assessment may not exceed the benefit as determined by the board to the parcel of land or political subdivision assessed. The board shall then confirm the assessment list and the secretary shall attach to the list a certificate that the same is correct as confirmed by the board and shall file the list in the office of the secretary.

Source:

S.L. 1981, ch. 632, § 1; 1999, ch. 539, § 2; 2017, ch. 423, § 1, eff August 1, 2017.

Cross-References.

Official county newspaper, see N.D.C.C. ch. 46-06.

61-16.1-23. Appeal to department of water resources.

After the hearing provided for in section 61-16.1-22, affected landowners and any political subdivision subject to assessment, having not less than twenty percent of the possible votes as determined by section 61-16.1-20, who believe the assessment was not made fairly or equitably or the project is not located or designed properly, may appeal to the department of water resources by petition, within ten days after the hearing on assessments, to make a review of the assessments and to examine the location and design of the proposed project. Upon receipt of the petition the department shall examine the lands assessed and the location and design of the proposed project, and if it appears the assessments were not made equitably, the department may correct the assessments, and the department’s correction and adjustment of the assessment is final. If the department believes the project was located or designed improperly, the department may order a relocation and redesign that must be followed in the construction of the proposed project. Upon filing a bond for two hundred fifty dollars with the board for the payment of the costs of the department in the matter, any landowner or political subdivision claiming the landowner or political subdivision will receive no benefit from the construction of a new project may appeal that issue to the department within ten days after the hearing on assessments. Upon an appeal by an individual landowner or political subdivision, the department may determine whether there is any benefit to the landowner or political subdivision, but not the specific amount of benefit. The determination of the department regarding whether there is a benefit is final.

Source:

S.L. 1981, ch. 632, § 1; 1985, ch. 680, § 1; 1987, ch. 742, § 1; 2017, ch. 423, § 2, eff August 1, 2017; 2021, ch. 488, § 148, eff August 1, 2021.

Notes to Decisions

Appeals.

When read together, this section and former N.D.C.C. § 28-32-15 (now N.D.C.C. § 28-32-42) do not authorize an appeal from a decision by the state engineer regarding benefits from a proposed drainage project. However, a water resource board’s decision regarding assessments for drainage projects may be appealed to the district court pursuant to N.D.C.C. § 61-16.1-54. Investment Rarities v. Bottineau County Water Resource Dist., 396 N.W.2d 746, 1986 N.D. LEXIS 461 (N.D. 1986).

Applicability.

In a dispute regarding a clearing and snagging project, several landowners were not required to appeal a determination of benefited land to a state engineer to exhaust their administrative remedies prior to appealing to a district court because the cost of the project was less than $100,000; therefore, N.D.C.C. § 61-16.1-23 did not apply as N.D.C.C. § 61-16.1-23 applies only after the provisions of N.D.C.C. § 61-16.1-22 have been followed and projects costing less than $ 100,000 are not subject to the assessment procedures required by N.D.C.C. N.D.C.C. § 61-16.1-22. N.D.C.C. N.D.C.C. § 61-16.1-09.1(1)(b) makes provision for approval of a project and assessments for a project costing less than one hundred thousand dollars. Klindt v. Pembina County Water Res. Bd., 2005 ND 106, 697 N.W.2d 339, 2005 N.D. LEXIS 123 (N.D. 2005).

61-16.1-24. When assessments may be made.

After the requirements of this chapter have been satisfied and a contract and bond for any work for which a special assessment is to be levied have been approved by the water resource board, the board may direct special assessments to be levied for the payment of appropriate costs, and the secretary shall certify to the board the items of total cost to be paid by special assessments so far as they have been ascertained. The certificate shall include the estimated construction cost under the terms of any contract, a reasonable allowance for cost of extra work which may be authorized under the plans and specifications, acquisition of right of way, engineering, fiscal agents’ and attorney’s fees for any services in connection with the authorization and financing of the improvement, cost of publication of required notices, and printing of improvement warrants, cost necessarily paid for damages caused by such improvement, interest during the construction period, and all expenses incurred in making the improvement and levy of assessments.

In no event shall any contract or contracts be awarded which exceed, by twenty percent or more, the estimated cost of the project as presented to and approved by the affected landowners.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-25. Financial reports — Liability for deficiencies.

In June and December of each year and as otherwise required by the county commission appointing the managers of the district, the district treasurer shall report to the water resource board in writing the amount of money in the treasury, the receipts, if any, in the preceding period and the amount and items of expenditure during that period. The report shall be verified and filed with the secretary of the district. A verified copy of the report shall also be filed in the office of the county auditor of each county in which the district lies and shall be open to public inspection.

During the month of January of each year, the water resource board shall prepare a complete statement of the condition of the finances of the district for the past year and shall cause the same to be filed with the county auditor of each county in which the district lies on or before February first next following. Such statement shall show separately, and in detail, the condition and resources of each and every assessment fund for the payment of project warrants of the district, including the amount of any anticipated deficit and the apportionment thereof. At its February meeting next following the filing of the statement of condition of any district, the board of county commissioners shall examine the statement and make inquiry regarding the same to determine whether or not the district has defaulted or may soon default on payment of its financial obligations as the same become due.

Whenever all special assessments collected for a project are insufficient to pay the special assessment warrants issued against such project, coming due within the following thirteen months, with interest, the board of county commissioners of each of the counties wherein the district lies shall advance to the district project warrant fund an amount sufficient to pay the deficiency attributable to benefited property in each county. If it appears to the board at any time that a deficiency exists or is likely to occur within one year in such project warrant fund for the payment of principal or interest due or to become due on such warrants, the board of county commissioners of each of the counties wherein the district lies, in order to forestall imminent deficiency in such fund or to promptly restore the ability of such fund to pay principal and interest punctually as the same become due, shall advance to such project fund the amount necessary to cover the anticipated deficiency attributable to benefited property in such county. In order to make such advances, the board of county commissioners of each of the counties shall levy a general tax upon the taxable property in the county, and may issue certificates of indebtedness against levies so made, or shall pay such advances from its general fund. Advances made by the county or counties shall be obligations of the district to be met out of any surplus in the district project warrant fund, and future district budgets and tax levies for the district after provision has been made for necessary current expenses. No tax limitation provided by any statute of this state shall apply to tax levies made by any county for the purpose of making any advances in accordance with the provisions of this section.

Source:

S.L. 1981, ch. 632, § 1; 1985, ch. 676, § 2; 1985, ch. 677, § 2.

61-16.1-26. Reassessment of benefits.

The water resource board may hold at any time or, upon petition of any affected landowner or political subdivision which has been assessed after a project has been in existence for at least one year, shall hold a hearing for the purpose of determining the benefits of such project to each tract of land affected. Notice of the hearing must be given by publication once each week for three consecutive weeks, beginning at least thirty days before the hearing, in the newspaper or newspapers having general circulation in the district and in the official county newspaper of each county in which the benefited lands are located and by mailing notice of the hearing in an envelope clearly marked “ASSESSMENT NOTICE” to each owner of land in the assessed district at the landowner’s address as shown by the tax rolls of the counties in which the affected property is located. The provisions of this chapter governing the original determination of benefits and assessment of costs apply to any reassessment of benefits carried out under this section. The board may not be forced to make such reassessment more than once every ten years, nor may any assessment or balance thereof supporting a project fund be reduced or impaired by reassessment or otherwise so long as bonds payable out of such fund remain unpaid and moneys are not available in such fund to pay all such bonds in full, with interest. Costs of maintenance must be prorated in accordance with any plan for reassessment of benefits that has been adopted.

Source:

S.L. 1981, ch. 632, § 1; 1989, ch. 753, § 1; 2001, ch. 120, § 1; 2017, ch. 423, § 3, eff August 1, 2017.

Cross-References.

Official county newspaper, see N.D.C.C. ch. 46-06.

Reassessment of benefits of drainage project, see N.D.C.C. § 61-21-44.

61-16.1-27. Correction of errors and mistakes in special assessments — Requirements governing.

If mathematical errors or other such mistakes occur in making any assessment resulting in a deficiency in that assessment, the board shall cause additional assessments to be made in a manner substantially complying with chapter 40-26 as it relates to special assessments.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-28. Certification of assessments to county auditor.

When a water resource board, by resolution, has caused special assessments to be levied to cover the cost of constructing a project, the board shall determine the rate of interest unpaid special assessments shall bear, which rate shall not exceed one and one-half percent above the warrant rate. Interest on unpaid special assessments shall commence on the date the assessments are finally confirmed by the board. Special assessments may be certified and made payable in equal annual installments, the last of which shall be due and payable not more than thirty years after the date of the warrants to be paid. The secretary of the district shall certify to the county auditor of the county in which the district is situated, or if the district embraces more than one county, to the county auditor of each county in which district lands subject to such special assessments are situated, the total amount assessed against such lands in that county and the proportion or percentage of such amount assessed against each piece, parcel, lot, or tract of land. The secretary of the district shall also file with the county auditor of each county in which district lands lie a statement showing the cost of the project, the part thereof, if any, which will be paid out of the general taxes, and the part to be financed by special assessments. Funds needed to pay the cost of maintaining a project may be raised in the same manner as funds were raised to meet construction costs. If the project was financed in whole or in part through the use of special assessments, the water resource board shall prorate the costs of maintaining projects in the same proportion as were the original costs of construction or, in the event a reassessment of benefits has been adopted, the costs shall be prorated in accordance with the reassessment of benefits as authorized by section 61-16.1-54.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-29. Extension of special assessments on tax lists — Collection — Payment to district.

The county auditor of each county shall extend the special assessments certified to the county auditor on the tax list of the district for the current year and such assessments, with interest and penalties, if any, shall be collected by the county treasurer as general taxes are collected and shall be paid to the treasurer of the district.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Collection of drain taxes, see N.D.C.C. § 61-21-28.

61-16.1-30. Lien of special assessment.

A special assessment imposed by a district, together with interest and penalties which accrue thereon, shall become a lien upon the property on which the assessment is levied from the time the assessment list is approved by the water resource board until the assessment is fully paid. Such liens shall have precedence over all other liens except general tax liens and shall not be divested by any judicial sale. No mistake in the description of the property covered by the special assessment lien or in the name of the owner of such property shall defeat the lien if the assessed property can be identified by the description in the assessment list. This chapter shall be considered notice to all subsequent encumbrancers of the priority of special assessments imposed under this chapter.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Lien and enforcement of drain assessments, see N.D.C.C. § 61-21-52.

When special assessment becomes lien as between vendor and vendee, see N.D.C.C. § 61-01-20.

61-16.1-31. Foreclosure of tax lien on property when general and special assessment taxes are delinquent.

Special assessments imposed under this chapter shall become due and delinquent and shall be subject to penalties and nonpayment at the same date and rates as first installments of real estate taxes at the same time and in the same manner as provided in title 57.

If there is no delinquent general property tax against a tract or parcel of land and it is foreclosed for special assessments alone, the notice of foreclosure of tax lien shall state that the foreclosure is for special assessments and a tax deed in such case shall be issued in the usual course of procedure.

Source:

S.L. 1981, ch. 632, § 1; 1999, ch. 503, § 44.

61-16.1-32. Collection of tax or assessment levied not to be enjoined or declared void — Exceptions.

The collection of any tax or assessment levied or ordered to be levied to pay for the location and construction of any project under the provisions of this chapter shall not be enjoined perpetually or absolutely declared void by reason of any of the following:

  1. Any error of any officer or board in the location and establishment thereof.
  2. Any error or informality appearing in the record of the proceedings by which any project was established.
  3. A lack of any proper conveyance or condemnation of the right of way.

The court in which any proceeding is brought to reverse or declare void the proceedings by which any project has been established, or to enjoin the tax levied to pay therefor, on application of either party, shall order examination of the premises, or survey of the same, or both, as may be deemed necessary. The court, on a final hearing, shall enter an order which is just and equitable, and may order the tax or any part thereof to remain on the tax lists for collection, or if the tax were paid under protest, may order, if justice requires, the whole or any part thereof to be refunded. The costs of such proceedings shall be apportioned among the parties as justice may require.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Drainage assessments, actions to declare void or enjoin collection, see N.D.C.C. § 61-21-40.

61-16.1-33. Water resource board may apportion assessments for benefits of a project against a county or city or any tract of land benefited.

Whenever a water resource board discovers or ascertains that the county, a township, or city therein, or that any tract, parcel, or piece of land is being benefited by a project and that the county or such township, municipality, tract, piece, or parcel of land was not included in the project area assessed for the cost of construction and maintenance of the project when established, the board shall commence proceedings for reassessment of lands originally assessed for the cost of establishing and constructing such project and shall apportion and assess the part of the balance remaining unpaid, if any, of the cost of such project, and the expense of maintenance, which such county, township, or city and each tract of land found benefited thereby should bear.

Before making such reassessment or reapportionment of benefits, the board shall hold a hearing for the purpose of determining the benefits of the project to the county, such township, or city and to each tract, piece, or parcel of land being benefited. At least ten days’ notice of the hearing shall be given by publication in the newspaper or newspapers having general circulation in the county and by mailing notice thereof to each owner of land assessed for the cost of construction and maintenance when the project was established, and by mailing such notice to the governing body of the county, township, municipality, and to the owner, as determined by the records in the office of the recorder or county treasurer of each tract, piece, or parcel of land found to be benefited since the establishment of the project. The provisions of this chapter governing the original determination of benefits and assessment of costs shall apply to the reassessment and assessment of benefits carried out under the provisions of this section.

Source:

S.L. 1981, ch. 632, § 1; 2001, ch. 120, § 1.

61-16.1-34. Warrants — When payable — Amounts — Interest — Interest coupons.

A district may, at any time after entering into a contract for a project to be financed in whole or in part by special assessments, issue temporary and definitive warrants on the project fund, created for that purpose, in the manner and subject to the limitations prescribed in section 40-24-19. If the warrants are issued to finance a sewer or water project, the net revenues derived from the imposition of service charges to be imposed and collected with respect thereto as provided in section 40-22-16 may be pledged to payment of those warrants, except that the first maturity date of any such warrant shall not be less than two years from the date of issuance. Warrants issued under this section shall be in such amounts as in the judgment of the water resource board will be necessary for the project. The warrants shall bear interest at a rate or rates and be sold at a price resulting in an average net interest cost not exceeding twelve percent per annum if sold at private sale. There is no interest rate ceiling on warrant issues sold at public sale or to the state of North Dakota or any of its agencies or instrumentalities. Coupons evidencing the interest for each year or half year, as the case may be, may be attached to the warrants. The warrants shall state upon their face the purpose for which they are issued and the project fund from which they are payable and shall be signed by the chairman of the water resource board and countersigned by the secretary of the district. The warrants shall be payable serially in such amounts as the board determines, extending over a period of not more than thirty years.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-35. Warrants may be used in making payments on contract — Warrants payable out of fund on which drawn — May be used to pay special assessments.

Improvement warrants may be used in making payments on contracts for construction of the project for which the special assessment fund was created, or may be sold for cash at not less than ninety-eight percent of par and accrued interest, and the proceeds thereof, less accrued interest, shall be credited to the construction account of such fund and shall be used exclusively to pay such contracts and construction costs. Any balance remaining in any construction account after completion of a project shall be transferred to the sinking fund account of the assessment fund. The treasurer of the district shall pay special assessment warrants and any interest coupons attached thereto as they mature and are presented for payment out of the fund on which they are drawn and shall cancel the warrants and any coupons when paid.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-36. Refunding special assessment warrants — Purposes for which such warrants may be issued — Payment of warrants.

Any district having outstanding special assessment warrants, payable in whole or in part out of collections from special assessments, which are past due or which are redeemable, either at the option of the district or with the consent of the warrant holders, may issue refunding special assessment warrants or bonds if there is not sufficient money in the project fund against which such warrants are drawn to pay the same. The issuance of refunding warrants or bonds shall be authorized by resolution of the water resource board. The resolution shall describe the warrants to be refunded and the amount and maturity thereof. Refunding warrants may be issued for any of the following purposes:

  1. Extend the maturities of warrants payable in whole or in part by special assessments.
  2. Reduce the interest on such warrants.
  3. Equalize the general property tax which the district may be, or may become, obligated to levy in order to cover deficiencies in the fund against which warrants were issued.

Refunding warrants or bonds shall bear such date, be in such date, be in such denominations, and shall mature serially within such time, not exceeding thirty years from the date of issuance, as the water resource board shall determine. The average rate of interest on such warrants shall not exceed the average rate of interest on refunded warrants.

The treasurer of the district shall pay special assessment warrants, and the interest coupons attached thereto, as they mature and are presented for payment out of the fund against which they are drawn and shall cancel the warrants when paid.

Any deficiency in any fund created for the payment of district warrants payable in whole or in part out of collections of special assessment taxes shall be the general obligation of the water resource district.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-37. Commission, department of water resources, and water resource board shall encourage both structural and nonstructural alternatives.

The commission, department of water resources, and the appropriate water resource board shall encourage both structural and nonstructural solutions to water management problems within the district by federal and state agencies, private individuals, and other persons, and shall lend their assistance to facilitate appropriate solutions. All structural alternatives, including dams, dikes, drains, and other works, whether constructed by public authorities or private persons, are subject to all the provisions of this chapter unless specifically exempted.

Source:

S.L. 1981, ch. 632, § 1; 1993, ch. 54, § 106; 2021, ch. 488, § 149, eff August 1, 2021.

61-16.1-38. Permit to construct or modify dam, dike, or other device required — Penalty — Emergency.

No dikes, dams, or other devices for water conservation, flood control regulation, watershed improvement, or storage of water which are capable of retaining, obstructing, or diverting more than fifty acre-feet [61674.08 cubic meters] of water or twenty-five acre-feet [30837.04 cubic meters] of water for a medium-hazard or high-hazard dam, may be constructed within any district except in accordance with the provisions of this chapter. An application for the construction of any dike, dam, or other device, along with complete plans and specifications, must be presented first to the department of water resources. Except for low-hazard dams less than ten feet [3.05 meters] in height or agricultural dikes less than two feet [0.61 meters] in height, the plans and specifications must be completed by a professional engineer registered in this state. After receipt, the department shall consider the application in such detail as the department deems necessary and proper. The department shall refuse to allow the construction of any unsafe or improper dike, dam, or other device which would interfere with the orderly control of the water resources of the district, or may order such changes, conditions, or modifications as in the judgment of the department may be necessary for safety or the protection of property. Within forty-five days after receipt of the application, except in unique or complex situations, the department shall complete the initial review of the application and forward the application, along with any changes, conditions, or modifications, to the water resource board of the district within which the contemplated project is located. The board shall consider the application within forty-five days, and suggest any changes, conditions, or modifications to the department. If the board approves the application, the board shall forward the approved application to the department. If the board fails to respond within forty-five days, the board will be deemed to have no changes, conditions, or modifications to make. The department shall make the final decision on the application and forward that decision to the applicant and the local water resource board. The department may issue temporary permits for dikes, dams, or other devices in cases of an emergency. Any person constructing a dam, dike, or other device capable of retaining, obstructing, or diverting more than fifty acre-feet [61674.08 cubic meters] of water or twenty-five acre-feet [30837.04 cubic meters] of water for a medium-hazard or high-hazard dam, without first securing a permit to do so, as required by this section, is liable for all damages proximately caused by the dam, dike, or other device, and is guilty of a class B misdemeanor.

Source:

S.L. 1981, ch. 632, § 1; 1985, ch. 669, § 3; 1997, ch. 519, § 1; 2003, ch. 550, § 3; 2013, ch. 483, § 1; 2019, ch. 510, § 1, eff August 1, 2019; 2021, ch. 488, § 150, eff August 1, 2021.

Notes to Decisions

Applicability.

The legislature’s clearly expressed intent was that the provisions of N.D.C.C. § 61-16-15, now codified under this section, apply to dikes; thus the Pembina County Water Resource District did not err in determining these dikes were unauthorized and subject to removal because they were constructed without proper authorization. Douville v. Pembina County Water Resource Dist., 2000 ND 124, 612 N.W.2d 270, 2000 N.D. LEXIS 130 (N.D. 2000).

Because an unauthorized dam and slough on an owner’s land impounded sufficient water to require permits under N.D.C.C. §§ 61-04-02 and 61-16.1-38, and because no permits had been procured, the state engineer had authority under N.D.C.C. § 61-03-21.2 to order the owner to modify the unauthorized dam and to construct a ditch to drain the slough to 1543.5 feet mean sea level. Peterson v. Sando, 2011 ND 206, 806 N.W.2d 172, 2011 N.D. LEXIS 206 (N.D. 2011).

Property owner and farming association failed to show that a water resource district acted arbitrarily, capriciously, or unreasonably in finding that a dike system required a permit under N.D.C.C. § 61-16.1-38, that the evidence was not substantial, or that the district was estopped from requiring removal of the dikes under N.D.C.C. § 61-16.1-53. John Miller & J.D. Miller Farming Ass'n v. Walsh County Water Res. Dist., 2012 ND 152, 819 N.W.2d 526, 2012 N.D. LEXIS 158 (N.D. 2012).

Law Reviews.

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

61-16.1-39. Dams or other devices constructed within a district shall come under control of a water resource board.

All dams, dikes, and other water conservation and flood control works or devices constructed within any district, unless specifically exempted, are under the jurisdiction of the water resource board for the district within which the dam, dike, works, or device exists or is to be constructed. The district’s jurisdiction over the dam, dike, works, or device does not affect the commission’s or department’s authority relative to the dam, dike, works, or device. No changes or modification of any existing dams, dikes, or other works or devices may be made without complying fully with the provisions of this chapter.

Source:

S.L. 1981, ch. 632, § 1; 2021, ch. 488, § 151, eff August 1, 2021.

61-16.1-39.1. Petition for maintenance — Bond required.

A written petition for maintenance of a project other than an assessment drain may be made to the board under this section. The petition shall designate the maintenance requested. The petition must be signed by six, or if a majority is less than six, by a majority of the landowners within the area benefited by the project. The petitioners shall supply a surety bond in the amount of two hundred fifty dollars. The bond must be for the payment of costs if the board finds the petition was improvidently made.

Source:

S.L. 1987, ch. 744, § 1.

61-16.1-39.2. Maintenance of project — Exception.

If, upon receipt of a petition meeting the requirements of section 61-16.1-39.1, or upon the board’s own motion, the board determines a project established under the provisions of this chapter requires maintenance, the board may provide the required maintenance by using the same method used initially to finance the project. Unless otherwise provided by law or agreement, the participation of the state in financing the initial project does not bind the state to finance any maintenance. Any maintenance financed through special assessments may not exceed the maximum levy established by section 61-16.1-45. This section does not apply to maintenance of assessment drains.

Source:

S.L. 1987, ch. 744, § 2.

61-16.1-40. When dams constructed by federal agency under control of district.

Any dam, dike, or other water control device or flood control project constructed by or with the assistance of any federal agency but which is not maintained or operated by any federal agency shall become the responsibility of the district where it is located. The district may take any action concerning this dam, dike, or other water control device it deems feasible or necessary.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-40.1. Maintenance of federally constructed projects — Assessment district established.

With regard to projects constructed by a federal agency, including the soil conservation service or natural resources conservation service, the water resource board may finance in whole or in part the maintenance of the project with funds raised through the collection of a special assessment levied against the land and premises benefited by maintenance of the project. The assessments to be levied may not exceed four dollars per acre [.40 hectare] annually on agricultural lands and may not exceed two dollars annually for each five hundred dollars of taxable valuation of nonagricultural property. No action is required for the establishment of the assessment district or the assessments except the water resource board must approve the maintenance and assessment therefor by a vote of two-thirds of the members and the board of county commissioners of the county in which the project is located must approve and levy the assessments to be made by a vote of two-thirds of its members. If a board that undertakes a project finds that the project may benefit lands in this state outside water resource district boundaries, the board shall provide notice to the water resource board where the benefited lands are located. The board of each water resource district containing lands benefited by a project must approve the project and assessment by vote of two-thirds of its members. The board of county commissioners in each county that contains lands benefited by a project must approve and levy the assessment to be made by vote of two-thirds of its members. If a project and assessment is not approved by all affected water resource boards and boards of county commissioners, the board of each water resource district and the board of county commissioners of each county shall meet to ensure that all common water management problems are jointly addressed. In addition, the water resource board that undertakes the project may proceed with the project if the board finances the cost of the project and does not assess land outside of the district. Before an assessment may be levied under this section, a public hearing must be held. The hearing must be preceded by notice as to date, time, location, and subject matter published in the official newspaper in the county or counties in which the proposed assessment is to be levied. The notice must be published at least ten days but not more than thirty days before the public hearing.

Source:

S.L. 1987, ch. 745, § 1; 2003, ch. 555, § 1; 2007, ch. 555, § 1; 2009, ch. 598, § 1; 2013, ch. 482, § 2.

61-16.1-41. Permit to drain waters required — Penalty. [Repealed]

Repealed by S.L. 1987, ch. 642, § 13.

61-16.1-41.1. Removal or placement of fill.

Prior to removing or placing any fill adjacent to a watercourse, the person responsible shall provide written notice to the district describing the amount and type of fill to be placed or removed and the location of the activity.

For purposes of this section, “adjacent” means within two hundred feet [60.96 meters] of the bank of the body of water during normal flow or stage.

The requirements of this section do not apply to surface coal mining and reclamation operations for which a permit has been secured from the public service commission pursuant to chapter 38-14.1.

Source:

S.L. 1989, ch. 754, § 1.

61-16.1-42. Drains along and across public roads and railroads.

Drains may be laid along, within the limits of, or across any public road or highway, but not to the injury of such road. In instances where it is necessary to run a drain across a highway, the department of transportation, the board of county commissioners, or the board of township supervisors, as the case may be, when notified by the water resource board to do so, shall make necessary openings through the road or highway at its own expense, and shall build and keep in repair all required culverts or bridges as provided under section 61-16.1-43. In instances where drains are laid along or within the rights of way of roads or highways, the drains shall be maintained and kept open by and at the expense of the water resource district concerned. A drain may be laid along any railroad when necessary, but not to the injury of the railroad, and when it is necessary to run a drain across the railroad, the railroad company, when notified by the water resource board to do so, shall make the necessary opening through such railroad, shall build the required bridges and culverts, and shall keep them in repair.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Drains along and across public roads and railroads, see N.D.C.C. § 61-21-31.

Notes to Decisions

Constitutionality.

This section substantially advances a legitimate state interest in drainage and does not deny a railroad economically viable use of its track; it constitutionally places upon railroad the continuing responsibility for the costs of accommodating its track to necessary drainage improvements. Southeast Cass Water Resource Dist. v. Burlington N. R.R., 527 N.W.2d 884, 1995 N.D. LEXIS 23 (N.D. 1995).

Authority of Water Resource Districts.

Without a more explicit legislative declaration of an intent to extend the power and authority of water resource districts to manage diffused surface waters under this provision, Court declined to extend the authority of a water resource district to require Burlington Northern Railway Company to install a culvert through the bed of its railroad track. Burlington Northern & Santa Fe Ry. v. Benson County Water Resource Dist., 2000 ND 182, 618 N.W.2d 155, 2000 N.D. LEXIS 199 (N.D. 2000).

Water resource district had a right to intervene in a property owner’s action against a township involving a culvert because the district was situated so that the disposition of the action might, as a practical matter, impair or impede its ability to protect its interests. The impact of a new culvert would cause the flow of water to enter into the drain that the district was mandated to maintain. Eichhorn v. Waldo Twp. Bd. of Supervisors, 2006 ND 214, 723 N.W.2d 112, 2006 N.D. LEXIS 207 (N.D. 2006).

Responsibility for Drainage Improvements.

This section places continuing responsibility for the costs of accommodating increased drainage on the railroad. Southeast Cass Water Resource Dist. v. Burlington N. R.R., 527 N.W.2d 884, 1995 N.D. LEXIS 23 (N.D. 1995).

61-16.1-43. Construction of bridges and culverts — Costs.

The water resource board shall construct such bridges or culverts over or in connection with a drain as in its judgment may be necessary to furnish passage from one part to another of any private farm or tract of land intersected by such drain. The cost of such construction shall be charged as part of the cost of constructing the drain, and any such bridge, culvert, or passageway shall be maintained under the authority of the water resource board, and the necessary expense shall be deemed a part of the cost of maintenance.

Whenever any bridge or culvert is to be constructed on a county or township highway system over and across or in connection with a drain, the cost of constructing such bridge or culvert shall be shared in the following manner:

  1. The state water commission may, if funds are available, participate in accordance with such rules and regulations as it may prescribe. The remaining cost shall be borne forty percent by the county and sixty percent by the district which has created the need for such construction.
  2. If, however, moneys have not been made available to the commission for participation in accordance with subsection 1, then forty percent of the cost of a bridge or culvert shall be paid by the county and sixty percent shall be charged as the cost of the drain to the district.
  3. Where such bridges or culverts are constructed with federal financial participation, the costs exceeding the amount of the federal participation shall be borne by the district and county according to the provisions of this section, as the case may be.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-44. Culvert and pipe arch bids and acceptance.

A water resource board may advertise for bids to supply culverts and pipe arches and may accept one or more low bids. A board may utilize bids for such materials received by the county within which the board has jurisdiction and may accept one or more low bids. The board may then purchase materials from the accepted low bidder or bidders for a period of one year from the date of the original acceptance of the bids.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Bids to supply culverts and pipe arches, advertising, acceptance, see N.D.C.C. § 61-21-32.1.

Preferences in public purchases, see N.D.C.C. § 44-08-01.

61-16.1-45. Maintenance of drainage projects.

  1. If it is desired to provide for maintenance of an assessment drain in whole or in part by means of special assessments, the levy in any year for the maintenance may not exceed four dollars per acre [.40 hectare] on any agricultural lands benefited by the drain. The district, at its own discretion, may utilize either of the following methods for levying special assessments for the maintenance:
    1. Agricultural lands that carried the highest assessment when the drain was originally established, or received the most benefits under a reassessment of benefits, may be assessed the maximum amount of four dollars per acre [.40 hectare]. The assessment of other agricultural lands in the district must be based upon the proportion that the assessment of benefits at the time of construction or at the time of any reassessment of benefits bears to the assessment of the benefits of the agricultural land assessed the full four dollars per acre [.40 hectare]. Nonagricultural property must be assessed the sum in any one year as the ratio of the benefits under the original assessments or any reassessment bears to the assessment of agricultural lands bearing the highest assessment.
    2. Agricultural lands must be assessed uniformly throughout the entire assessed area. Nonagricultural property must be assessed an amount not to exceed two dollars for each five hundred dollars of taxable valuation of the nonagricultural property.
  2. In case the maximum levy or assessment on agricultural and nonagricultural property for any year will not produce an amount sufficient to cover the cost of cleaning out and repairing the drain, a water resource board may accumulate a fund in an amount not exceeding the sum produced by the maximum permissible levy for six years.
  3. If the cost of, or obligation for, the cleaning and repairing of any drain exceeds the total amount that may be levied by the board in any six-year period, the board shall obtain the approval of the majority of the landowners as determined by chapter 61-16.1 before obligating the district for the costs.

Source:

S.L. 1981, ch. 632, § 1; 1985, ch. 681, § 1; 1995, ch. 592, § 1; 2007, ch. 556, § 1; 2013, ch. 482, § 3.

61-16.1-46. Establishing new drains in location of invalid or abandoned drain.

If any of the proceedings for the location, establishment, or construction of any drain under the provisions of this chapter shall have been enjoined, vacated, set aside, declared void, or voluntarily abandoned by the water resource board, for any reason whatsoever, the board may proceed under the provisions of sections 61-16.1-17 through 61-16.1-22 to locate, establish, and construct a new drain at substantially the same location as the abandoned or invalid drain. For the purposes of this chapter, a drain that is not properly maintained shall be considered abandoned. When a new drain is established at substantially the same location, the board shall ascertain the real value of services rendered, moneys expended and work done under the invalid or abandoned proceedings, and the extent to which the same contributes to the construction and completion of the new drain. The board shall then issue warrants in an amount not exceeding the value to the new drain of the work completed on the invalid or abandoned drain and shall deliver such new warrants, pro rata, to the owners or holders of old warrants or bonds issued under the invalid or abandoned drainage proceedings, upon the surrender of such old warrants or bonds by the holder or holders thereof.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Establishment of drain at site of abandoned or invalid drain, see N.D.C.C. § 61-21-41.

61-16.1-47. Drain kept open and in repair by water resource board.

All assessment drains that have been constructed in any district, except township drains, shall be under the charge of the water resource board and it shall be the duty of the board to keep those drains open and in good repair. It shall be the mandatory duty of the board, within the limits of available funds, to clean out and repair any assessment drain when requested to do so by petition of the affected landowners having fifty percent or more of the possible votes, as determined according to section 61-16.1-20.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Contracts for cleaning and repairing drains, see N.D.C.C. § 61-21-45.

Duty to keep drain open and in repair, see N.D.C.C. § 61-21-42.

61-16.1-48. Assessment of costs of cleaning and repairing drains.

The cost of cleaning out and repairing an assessment drain or a drainage structure constructed by any governmental entity for which no continuing funds for maintenance are available must be assessed pro rata against the lands benefited in the same proportion as the original assessment of the costs in establishing such drain, or in accordance with any reassessment of benefits if there has been a reassessment of benefits under the provisions of section 61-16.1-26. If no assessment for construction costs or reassessment of benefits has been made, the water resource board shall make assessments for the cost of cleaning and repairing such drain or drainage structure constructed by any governmental entity for which no continuing funds for maintenance are available in accordance with the provisions of this chapter for the establishment of a new project. The governing body of any incorporated city, by agreement with the board, is authorized to contribute to the cost of cleaning out, repairing, and maintaining a drain in excess of the amount assessed under this section, and such excess contribution may be expended for such purposes by the board.

Source:

S.L. 1981, ch. 632, § 1; 1987, ch. 743, § 1.

Cross-References.

Assessment of costs of cleaning and repairing drains, see N.D.C.C. § 61-21-43.

61-16.1-49. Petition for a lateral drain — Bond of petitioners.

  1. For the purposes of this section, “lateral drain” means a drain constructed after the establishment of an original assessment drain or drainage system and which flows into such original drain or drainage system from outside the limits of the assessed area of the original drain; provided, that a determination by a water resource board as to whether an existing or proposed drain is a lateral or a new drain shall be conclusive when entered upon the records of the board.
  2. All property owners whose property would be affected by a lateral drain may jointly petition the board for the construction of such drain and shall deposit with the board a good and sufficient bond to be approved by the board, conditioned upon the petitioner or petitioners paying all costs of the proposed lateral drain. A petition for a lateral drain shall be sufficient if signed by one or more property owners whose property will be affected by the lateral drain. Whenever improvements of an original drain are made necessary by the construction of a lateral drain, the costs of such improvements to the original drain shall be charged as part of the cost of construction of the lateral drain and assessed against the property benefited thereby and collected as other assessments are collected. In the event the board determines that improvements to the original drain are also beneficial to property served by the original drain, the board may assess that portion of the cost of the improvements it determines appropriate to property benefited by the original drain. Unless the petitioners agree to construct the lateral drain, the board, within ten days, may commence proceedings for the construction of the lateral drain according to the provisions of this chapter. No person shall dig or construct any lateral ditch or drain which will conduct the flow of water from any land or lands into any drain constructed under the provisions of this chapter, except as provided in this section and with approval of the board. In all instances involving the construction of a lateral drain, the board shall estimate and determine the proportionate share of the cost of the main or original drain which should be paid by the petitioners. The petitioners shall pay into the district treasury the amount so determined, and shall then be allowed to connect such lateral ditches or drains with the original drain under the direction and superintendence of the board, but at their own cost and expense. The money paid into the county treasury shall be credited to the drainage fund of the specific drain involved.
  3. If one or more of the property owners to be benefited by the construction of a lateral drain or ditch petitions the district for the construction of a lateral drain or ditch, the district shall then proceed in the same manner as is used for the establishment of a new drain and thereafter such lateral drain shall constitute a part of the original drain to which it is connected and the affected property shall be a part of such drainage district.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Petition for lateral drain, see N.D.C.C. § 61-21-39.

61-16.1-50. Drains having a common outlet may be consolidated.

Whenever one or more drains which have from time to time been constructed, empty into a drain that supplies the outlet for waters flowing in all such drains, such drains may by resolution or order of the water resource board, if the cost of construction of such drains has been paid, be consolidated into one drain or drainage system and shall be renumbered and may be renamed.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Consolidation of drains with common outlet, see N.D.C.C. § 61-21-63.

61-16.1-51. Removal of obstructions to drain — Notice and hearing — Appeal — Injunction — Definition.

  1. If a water resource board determines that an obstruction to a drain has been caused by the negligent act or omission of a landowner or tenant, the board shall notify the landowner by registered mail at the landowner’s post-office address of record. A copy of the notice must also be sent to the tenant, if any. The notice must specify the nature and extent of the obstruction, the opinion of the board as to its cause, and must state that if the obstruction is not removed within such period as the board determines, but not less than fifteen days, the board shall procure removal of the obstruction and assess the cost of the removal, or the portion the board determines appropriate, 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 a landowner or tenant from maintaining an obstruction. Assessments levied under the provisions of this section must be collected in the same manner as other assessments authorized by this chapter. 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 accordance with the proportionate responsibility of the landowners. A landowner aggrieved by action of the board under this section may appeal the decision of the board to the district court of the county in which the land is located in accordance with the procedure provided in section 28-34-01. A hearing as provided for in this section is not a prerequisite to an appeal. If a complaint is frivolous in the discretion of the board, the board may assess the costs of the frivolous complaint against the complainant. If the obstruction is located in a road ditch, the timing and method of removal must be approved by the appropriate road authority before the notice required by this section is given and appropriate construction site protection standards must be followed.
  2. For the purposes of this section, “an obstruction to a drain” means a barrier to a watercourse, as defined by section 61-01-06, or an artificial drain, including if the watercourse or drain is located within a road ditch, which materially affects the free flow of waters in the watercourse or drain.
  3. Following removal of an obstruction to a 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.

Source:

S.L. 1981, ch. 632, § 1; 1989, ch. 83, § 27; 1999, ch. 540, § 1; 2007, ch. 557, § 1; 2013, ch. 482, § 4.

Cross-References.

Removal of obstructions from drains, procedure, see N.D.C.C. § 61-21-43.1.

61-16.1-52. Closing a noncomplying drain — Notice and hearing — Appeal — Injunction. [Repealed]

Repealed by S.L. 1987, ch. 642, § 13.

61-16.1-53. Removal of a noncomplying dike, dam, or other device — Notice and hearing — Appeal — Injunction.

  1. Upon receipt of a complaint of unauthorized construction of a dike, dam, or other device for water conservation, flood control, regulation, watershed improvement, or storage of water, the water resource board shall promptly investigate and make a determination thereon. If the board determines that a dike, dam, or other device, capable of retaining, obstructing, or diverting more than fifty acre-feet [61674.08 cubic meters] of water or twenty-five acre-feet [30837.04 cubic meters] of water for a medium-hazard or high-hazard dam, has been established or constructed 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 any. The notice must specify the nature and extent of the noncompliance and must state that if the dike, dam, or other device is not removed within the period the board determines, but not less than fifteen days, the board shall cause the removal of the dike, dam, or other device and assess the cost of the removal, 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 upon 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 dike, dam, or other device, or ordering the landowner to remove the dike, dam, or other device. Assessments levied under this section must be collected in the same manner as other assessments authorized by this chapter. 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 removal of an unauthorized dike, dam, or other device, 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.

Source:

S.L. 1981, ch. 632, § 1; 1989, ch. 83, § 28; 1999, ch. 540, § 2; 2003, ch. 550, § 4; 2013, ch. 482, § 5; 2013, ch. 484, § 1.

Notes to Decisions

Removal of Unauthorized Dike.

The District did not misapply the law of prescriptive easements when it ordered the removal of the dikes, because landowners cannot defeat the State’s authority to protect the health, safety, and welfare of the public by claiming a prescriptive right to maintain dikes which were constructed in violation of state law. Douville v. Pembina County Water Resource Dist., 2000 ND 124, 612 N.W.2d 270, 2000 N.D. LEXIS 130 (N.D. 2000).

Property owner and farming association failed to show that a water resource district acted arbitrarily, capriciously, or unreasonably in finding that a dike system required a permit under N.D.C.C. § 61-16.1-38, that the evidence was not substantial, or that the district was estopped from requiring removal of the dikes under N.D.C.C. § 61-16.1-53. John Miller & J.D. Miller Farming Ass'n v. Walsh County Water Res. Dist., 2012 ND 152, 819 N.W.2d 526, 2012 N.D. LEXIS 158 (N.D. 2012).

61-16.1-53.1. Appeal of board decisions — Department of water resources review — Closing of noncomplying dams, dikes, or other devices for water conservation, flood control, regulation, and watershed improvement.

  1. The board shall make the decision required by section 61-16.1-53 within a reasonable time, not exceeding 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 department of water resources. The appeal to the department 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 department which must state specifically the reason why the board’s decision is erroneous. The appealing party also shall 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 removal of a dam, dike, or other device, is relieved of its obligation to procure the removal of the dam, dike, or other device. The department shall handle the appeal by conducting an independent investigation and making an independent determination of the matter. The department may enter property affected by the complaint to investigate the complaint.
  2. If the board fails to investigate and make a determination concerning the complaint within a reasonable time, not exceeding one hundred twenty days, the person filing the complaint may file the complaint with the department of water resources within one hundred fifty days of the submittal date of the original complaint. Without reference to chapter 28-32, the department shall cause the investigation and determination to be made, either by action against the board or by conducting the investigation and making the determination.
  3. If the department of water resources determines a dam, dike, or other device has been constructed or established by a landowner or tenant contrary to title 61 or any rules adopted by the board, the department shall take one of these three actions:
    1. Notify the landowner by certified mail at the landowner’s post-office address of record;
    2. Return the matter to the jurisdiction of the board along with the investigation report; or
    3. Forward the dam, dike, or other device complaint and investigation report to the state’s attorney.
  4. If the department of water resources decides to notify the landowner, the notice must specify the nature and extent of the noncompliance and state that if the dam, dike, or other device is not removed within a reasonable time as determined by the department, but not less than thirty days, the department shall procure the removal of the dam, dike, or other device and assess the cost of removal against the responsible landowner’s property. The notice from the department also must state that, within fifteen days of the date the notice is mailed, the affected landowner may demand, in writing, a hearing on the matter. Upon receipt of the demand, the department shall set a hearing date within fifteen days from the date the demand is received. If, in the opinion of the department, 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 department shall certify the assessment to the county auditor of the county where the noncomplying dam, dike, or other device 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 department under this section may appeal the decision of the department to the district court under chapter 28-32. A hearing by the department as provided for in this section is a prerequisite to an appeal.
  5. If the department of water resources, 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 must include the nature and extent of the noncompliance. Upon having the matter returned to its jurisdiction, the board shall carry out the department’s decision under the terms of this section.
  6. If the department of water resources, after completing the investigation required under this section, decides to forward the dam, dike, or other device complaint to the state’s attorney, a complete copy of the investigation report must also be forwarded and 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.
  7. In addition to the penalty imposed by the court on conviction under this statute, the court shall order the dam, dike, or other device removed within a reasonable time period as the court determines, but not less than thirty days. If the dam, dike, or other device is not removed within the time prescribed by the court, the court shall procure the removal of the dam, dike, or other device, 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.

Source:

S.L. 1999, ch. 541, § 1; 2013, ch. 484, § 2; 2015, ch. 473, § 1, eff August 1, 2015; 2021, ch. 488, § 152, eff August 1, 2021.

61-16.1-54. Appeal from decision of water resource board — Undertaking — Jurisdiction.

An appeal may be taken to the district court from any order or decision of the water resource board by any person aggrieved. An appellant shall file an undertaking in the sum of two hundred dollars with such sureties as may be approved by the clerk of the district court to which the appeal is taken. The undertaking must be conditioned that the appellant will prosecute the appeal without delay and will pay all costs adjudged against the appellant in the district court. The undertaking must be in favor of the water resource board as obligee, and may be sued on in the name of the obligee. The appeal must be taken to the district court of the county in which the land claimed to be affected adversely by the order or decision appealed from is located and is governed by the procedure provided in section 28-34-01.

Source:

S.L. 1981, ch. 632, § 1; 1989, ch. 83, § 29.

Cross-References.

Drainage project decisions of board, appeal from, see N.D.C.C. §§ 61-21-17, 61-21-18.

Notes to Decisions

In General.

When read together, N.D.C.C. § 61-16.1-23 and former N.D.C.C. § 28-32-15 (now N.D.C.C. § 28-32-42) do not authorize an appeal from a decision by the state engineer regarding benefits from a proposed drainage project. However, a water resource board’s decision regarding assessments for drainage projects may be appealed to the district court pursuant to this section. Investment Rarities v. Bottineau County Water Resource Dist., 396 N.W.2d 746, 1986 N.D. LEXIS 461 (N.D. 1986).

District court properly dismissed a landowner's appeal from a county water resource district decision amending approval of an application for a subsurface drain because the landowner failed to file a timely appeal from the resource district decision; the terms of the statutes conferring appellate jurisdiction controlled whether the time for appeal could be tolled, and nothing in the plain language of the statute tolled the time for appeal. Zajac v. Traill Cnty. Water Res. Dist., 2016 ND 134, 881 N.W.2d 666, 2016 N.D. LEXIS 130 (N.D. 2016).

Aggrieved Person.

County was an aggrieved party and could have appealed under N.D.C.C. § 11-11-39 or N.D.C.C. § 61-16.1-54 from the adverse decisions of a board of commissioners, refusing to create an assessment district as requested by the county. Since the county failed to do so, it was precluded from seeking relief in mandamus as it had an adequate alternative remedy by appeal. Pembina County Water Res. Bd. v. Cavalier County Water Res. Bd., 2010 ND 148, 787 N.W.2d 295, 2010 N.D. LEXIS 152 (N.D. 2010).

District court erred in dismissing the landowners' appeal from a resolution of necessity where the resolution provided the legal description of their property, stated that the property was necessary for the construction, operation, and maintenance of a diversion project, stated that the water district would proceed with eminent domain to acquire an interest in the property, and as a result, the owners were aggrieved under N.D.C.C. § 61-16.1-54. Cossette v. Cass Cty. Joint Water Res. Dist., 2017 ND 120, 894 N.W.2d 858, 2017 N.D. LEXIS 116 (N.D. 2017).

61-16.1-55. Appeal from decision of water resource board — How to be taken. [Repealed]

Repealed by S.L. 1989, ch. 83, § 36.

Note.

For present provisions, see N.D.C.C. ch. 28-34.

61-16.1-56. Time for taking appeal from water resource board decision. [Repealed]

Repealed by S.L. 1989, ch. 83, § 36.

Note.

For present provisions, see N.D.C.C. ch. 28-34.

61-16.1-57. Filing appeal — Docketing and hearing appeals — Final judgment and sending back. [Repealed]

Repealed by S.L. 1989, ch. 83, § 36.

Note.

For present provisions, see N.D.C.C. ch. 28-34.

61-16.1-58. Attorney general to assist boards — Employment of counsel.

The attorney general shall render legal opinions or such other assistance to water resource boards as is required to be rendered to state officers by section 54-12-01. The water resource board, however, may employ other counsel to advise and represent it in such actions and appeals and in its proceedings.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-59. Proceedings to confirm contracts, special assessments, and other acts.

Any water resource board, before making any contract, or before levying special assessments, or issuing special assessment warrants, or before taking any special action, may commence a special proceeding in district court by which the proceeding leading up to the making of such contract, levying special assessments, issuing special assessment warrants, or leading up to any other special action, shall be judicially examined, approved, and confirmed. Such judicial proceedings shall comply substantially with the procedure required in the case of judicial confirmation of proceedings, acts, and contracts of an irrigation district.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-60. Authorization to organize association of water resource districts.

  1. Water resource districts, organized and established pursuant to this chapter, are authorized upon resolution of the water resource boards to organize and participate in an association of districts.
  2. The association or associations authorized hereunder shall be organized pursuant to chapter 10-33.

Source:

S.L. 1981, ch. 632, § 1; 1997, ch. 105, § 12.

61-16.1-61. Water resource districts — Assumption of assets and liabilities of drain boards.

Beginning on July 1, 1981, each water resource district shall assume all assets, liabilities, and obligations of any county drain board whose territory is included within the boundaries of the district. When the jurisdiction of any county drain board is included within two or more districts, the county auditor shall determine the apportionment of any assets, liabilities, and obligations. Such apportionment shall be based on the proportionate amount of taxable valuation included in each district, except that special assessment projects and funds, property interests, and physical assets attached to the land shall be assumed by the district in which the project is located. Property interests and physical assets attached to the land shall be assumed by the district in which they are located. Prior to February 1, 1983, and for review by each affected water resource board, each water resource district and county drain board shall have a certified public accountant prepare a final audit of its financial records, including all special assessment funds and obligations, assets, and other liabilities. All necessary actions to accomplish the transfer of assets and obligations under this section shall be complete prior to January 1, 1982.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-62. Validating organization and acts of water resource districts and county drain boards.

Nothing contained in this chapter shall be construed as impairing, invalidating, or in any manner affecting the validity of acts or proceedings of water resource districts or county drain boards which existed prior to the passage and approval of this chapter.

Source:

S.L. 1981, ch. 632, § 1.

61-16.1-63. Penalty for violation of chapter.

Any person violating any of the provisions of this chapter shall, if no other criminal penalty is specifically provided, be guilty of a class B misdemeanor.

Source:

S.L. 1981, ch. 632, § 1.

Cross-References.

Penalties for classified offenses, see N.D.C.C. § 12.1-32-01.

CHAPTER 61-16.2 Floodplain Management

61-16.2-01. Legislative intent and purpose.

The legislative assembly finds and declares that a large portion of the state’s land resources is subject to recurrent flooding by overflow of streams and other watercourses causing loss of life and property, disruption of commerce and governmental services, unsanitary conditions, and interruption of transportation and communications, all of which are detrimental to the health, safety, welfare, and property of the occupants of flooded lands and the people of this state. The legislative assembly further finds that public interest necessitates that the floodplains of this state be developed in a manner which will alleviate loss of life and threat to health, and reduce private and public economic loss caused by flooding.

It is the policy of this state and the purpose of this chapter to guide development of the floodplains of this state in accordance with the enumerated legislative findings, to reduce flood damages through sound floodplain management, stressing nonstructural measures such as floodplain zoning and floodproofing, acquisition and relocation, and flood warning practices; and to ensure as far as practicable that the channels and those portions of the floodplains of watercourses which are the floodways are not inhabited and are kept free and clear of interference or obstructions which may cause any undue restriction of the capacity of the floodways.

It is also the policy of this state and purpose of this chapter to provide state coordination and assistance to communities in floodplain management activities, to encourage communities to adopt, administer, and enforce sound floodplain management ordinances, and to provide the department of water resources the authority necessary to carry out and enforce a floodplain management program for the state and to coordinate federal, state, and local floodplain management activities in this state.

Source:

S.L. 1981, ch. 633, § 2; 2021, ch. 488, § 153, eff August 1, 2021.

Law Reviews.

Various Aspects of Flood Plain Zoning, 55 N.D. L. Rev. 409 (1979).

61-16.2-02. Definitions.

  1. In this chapter, unless the context or subject matter otherwise provides:
    1. “Commission” means state water commission.
    2. “Community” means any political subdivision that has the authority to zone.
    3. “Conveyance” or “hydraulic conveyance” means a geometric characteristic of a river or watercourse at a given point that determines the flow-carrying capacity at that point.
    4. “Department” means the department of water resources.
    5. “District” means a water resource district, as defined in chapter 61-16.1.
    6. “Flood fringe” means that portion of a floodplain outside of the floodway.
    7. “Floodway” or “regulatory floodway” means the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot [30.48 centimeters].
    8. “Person” means any person, firm, partnership, association, corporation, limited liability company, agency, or any other private or governmental organization, which includes any agency of the United States, a state agency, or any political subdivision of the state.
  2. For the purposes of this chapter, the department shall follow the definitions in this section and the definitions under the national flood insurance program [42 U.S.C. 4001 et seq.] and implementing regulations.

Source:

S.L. 1981, ch. 633, § 3; 1993, ch. 54, § 106; 1999, ch. 542, § 6; 2003, ch. 556, § 1; 2021, ch. 488, § 154, eff August 1, 2021.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-16.2-03. Duties of the department.

The department shall:

  1. Collect and distribute information relating to flooding and floodplain management.
  2. Coordinate local, state, and federal floodplain management activities to the greatest extent possible, and encourage appropriate federal agencies to make their flood control planning data available to communities and districts for planning purposes, in order to allow adequate local participation in the planning process and in the selection of desirable alternatives.
  3. Assist communities and districts in their floodplain management activities within the limits of available appropriations and personnel in cooperation with the division of homeland security.
  4. Do all other things, within lawful authority, which are necessary or desirable to manage the floodplains for uses compatible with the preservation of the capacity of the floodplain to carry and discharge the base flood. In cooperation with communities and districts, the department shall conduct, whenever possible, periodic inspections to determine the effectiveness of local floodplain management programs, including an evaluation of the enforcement of and compliance with local floodplain management ordinances.

Source:

S.L. 1981, ch. 633, § 4; 2005, ch. 16, § 32; 2021, ch. 488, § 155, eff August 1, 2021.

61-16.2-04. Delineation of floodplains and floodways.

The department shall assist communities in preparing and obtaining data and other necessary information for the delineation of floodplains and floodways. When the department determines sufficient technical information is available for the delineation of floodplains and floodways on a watercourse or lake, the department shall consult with the appropriate district and each affected community. The department, the affected community, and the appropriate district shall consider flooding experiences, plans to avoid potential hazards, estimates of economic impacts of flooding on the community, both historical and prospective, and other data as the district and community may consider appropriate. Upon obtaining and developing the necessary information for delineation of the floodplain and floodway, the department and the affected community shall notify the appropriate federal agency and request that the information be used to delineate the floodplain and floodway under the national flood insurance program [42 U.S.C. 4001 et seq.]. The regulatory floodway must be able to carry the waters of the base flood without cumulatively increasing the water surface elevation of the base flood more than one foot [30.48 centimeters] at any point.

Source:

S.L. 1981, ch. 633, § 5; 1999, ch. 542, § 7; 2021, ch. 488, § 156, eff August 1, 2021.

61-16.2-05. Floodplain management ordinances.

  1. Each community shall submit the floodplain management ordinances adopted under the national flood insurance program [42 U.S.C. 4001 et seq.] to the department for review.
  2. If the department determines there is a failure by a community to comply with the intent, purposes, and provisions of this chapter and the minimum ordinances adopted under the national flood insurance program [42 U.S.C. 4001 et seq.], the department shall notify the appropriate federal agency and the community of those findings. The department also shall notify the community of the state and federal penalties for such noncompliance and shall work with the community until such time as the department determines the community will comply or is complying.

Source:

S.L. 1981, ch. 633, § 6; 2021, ch. 488, § 157, eff August 1, 2021.

Collateral References.

Local use zoning of wetlands or flood plain as taking without compensation, 19 A.L.R.4th 756.

61-16.2-06. Permissible floodway uses.

Upon delineation of the floodway under the national flood insurance program [42 U.S.C. 4001 et seq.], uses shall be permitted within the floodway to the extent that they do not result in any increase in flood levels during the occurrence of the base flood discharge. Any exception to the national flood insurance program [42 U.S.C. 4001 et seq.] in implementing regulations granted by the appropriate federal agency to a community participating in the national flood insurance program is an approved exception pursuant to this section.

Source:

S.L. 1981, ch. 633, § 7; 2003, ch. 556, § 2; 2021, ch. 492, § 1, eff August 1, 2021.

61-16.2-07. Prohibited uses within floodway. [Repealed]

Repealed by S.L. 1983, ch. 682, § 1.

61-16.2-08. Community standards — Permissible uses within flood fringe.

  1. Upon delineation of the floodplain or floodway under the national flood insurance program [42 U.S.C. 4001 et seq.], the following uses must be permitted within the flood fringe to the extent the uses are not prohibited by any other ordinance, regulation, or statute:
    1. Any use permitted in the regulatory floodway pursuant to section 61-16.2-06.
    2. Structures, including residential and nonresidential structures; provided:
      1. Residential structures are constructed so the lowest floor, including basements, is elevated to at least one foot [30.48 centimeters] above the base flood elevation unless granted a residential basement floodproof exception under the national flood insurance program.
      2. Nonresidential structures either are constructed as specified in subdivision a and elevated to at least one foot [30.48 centimeters] above the base flood elevation or are floodproofed adequately up to an elevation no lower than two feet [.61 meter] above the base flood elevation. The floodproofing must be in accordance with the standards either adopted by the community under the national flood insurance program [42 U.S.C. 4001 et seq.] or under this chapter, whichever are more restrictive.
  2. Any exception to this section must be approved by the regulatory authority as a variance, established in local floodplain development ordinances.
  3. Any exception to the national flood insurance program [42 U.S.C. 4001 et seq.] in implementing regulations granted by the appropriate federal agency to a community participating in the national flood insurance program is an approved exception under this section.

Source:

S.L. 1981, ch. 633, § 9; 1999, ch. 542, § 8; 2003, ch. 556, § 3; 2019, ch. 511, § 1, eff August 1, 2019; 2021, ch. 492, § 2, eff August 1, 2021.

61-16.2-09. Enforcement and penalties.

  1. It is unlawful for any person to establish any use that does not comply with this chapter within any floodplain without prior written approval of the affected community. Every use placed in the floodplain in violation of this chapter or a floodplain management ordinance adopted under or in compliance with the provisions of this chapter, or adopted under the national flood insurance program [42 U.S.C. 4001 et seq.], is a public nuisance, and the construction or installation of the use may be enjoined by an action brought by the department or the appropriate community. The department or community may obtain a court order directing the removal or elimination of the public nuisance, or authorizing the department or community to remove the public nuisance or cause the public nuisance to be removed, at the expense of the owner. A person who violates any of the provisions of this chapter is guilty of a class B misdemeanor.
  2. Any community which fails to adopt or enforce floodplain management ordinances as required under the national flood insurance program [42 U.S.C. 4001 et seq.] by this chapter shall not be eligible to receive any flood disaster assistance, financial or otherwise, from this state pursuant to chapter 37-17.1 or any other state funds available under any other authority for flood relief.

Source:

S.L. 1981, ch. 633, § 10; 2003, ch. 556, § 4; 2021, ch. 488, § 158, eff August 1, 2021.

Cross-References.

Nuisances, see N.D.C.C. ch. 42-01.

61-16.2-10. Exceptions.

This chapter shall not apply to the following actions or construction, as long as the flood-carrying capacity within the altered or relocated portion of any watercourse is maintained, and the cumulative effect of any such action or construction will not increase the water surface elevation of the base flood more than one foot [30.48 centimeters] at any point:

  1. Ring dikes around individual farmsteads which are not constructed with tiebacks to existing roadways or dikes. For the purposes of this section, “ring dike” means an embankment constructed of earth or other suitable materials for purposes of enclosing a farmstead consisting of a farm dwelling and associated farm buildings.
  2. Agricultural dikes along the Red River of the North and Bois de Sioux River which are constructed pursuant to and in accordance with any joint and cooperative agreements between North Dakota and Minnesota for the establishment of criteria for authorizing dikes and other flood control structures and measures on the Red River of the North and Bois de Sioux River.

Any exception to the national flood insurance program [42 U.S.C. 4001 et seq.] and implementing regulations granted by the appropriate federal agency to a community which is participating in the national flood insurance program [42 U.S.C. 4001 et seq.] shall be an approved exception pursuant to this section.

Source:

S.L. 1981, ch. 633, § 11; 2003, ch. 556, § 5.

61-16.2-11. Authority to enter and investigate lands or waters.

The department or any community must notify all landowners prior to making any entry upon any lands and waters in the state for the purpose of making an investigation, survey, removal, or repair contemplated by this chapter. An investigation of a nonconforming use or existing construction or structure must be made by the department either on the department’s own initiative, on the written request of an owner of land abutting the watercourse involved, or on the written request of a community.

Source:

S.L. 1981, ch. 633, § 12; 2021, ch. 488, § 159, eff August 1, 2021.

61-16.2-12. State property.

Notwithstanding any other statutes or regulations, all state property and structures thereon shall be subject to the provisions of this chapter and any ordinances adopted pursuant to this chapter or the national flood insurance program [42 U.S.C. 4001 et seq.].

Source:

S.L. 1981, ch. 633, § 13.

61-16.2-13. Flood insurance.

Communities that have residential and nonresidential structures in areas subject to excessive flooding, as determined by the department, shall participate in the national flood insurance program administered by the federal emergency management agency. A community is not required to participate in the program if all of the land under the jurisdiction of the community is enrolled as a result of another community’s participation in the program.

Source:

S.L. 1981, ch. 633, § 14; 1999, ch. 542, § 9; 2003, ch. 556, § 6; 2021, ch. 488, § 160, eff August 1, 2021.

Note.

The major portion of P.L. 90-448 concerning national flood insurance is compiled as 42 USCS § 4001 et seq.

61-16.2-14. Department review of development in regulatory floodways — Exceptions.

Before issuing a permit or authorization to allow a use in a regulatory floodway, the community responsible for permitting or authorizing the use shall notify the department of the proposed use. The department shall determine whether a functioning hydraulic model is needed to measure the effect of the proposed use. Upon the request of the department, the community shall submit to the department for review all technical documentation, including a functioning hydraulic model and other technical information needed for the department’s review to analyze the proposed use and to identify its proposed impact. The department shall complete the review within thirty days after receiving the technical documentation. Upon completion of the review, the department shall notify the community whether the proposed use is in compliance with state and federal law. A community may apply to the department for an exemption on a case-by-case basis from this section. The department may grant the exemption if the department determines the community, by using its own technical review, can determine whether the proposed use is in compliance with state and federal law.

Source:

S.L. 1999, ch. 542, § 10; 2003, ch. 556, § 7; 2021, ch. 488, § 161, eff August 1, 2021.

CHAPTER 61-17 Tri-State Water Compact [Repealed]

[Repealed by S.L. 1971, ch. 590, § 1]

CHAPTER 61-18 Erection and Maintenance of Dams [Repealed]

[Repealed by S.L. 1961, ch. 381, § 1]

CHAPTER 61-19 Revetment Works [Repealed]

[Repealed by S.L. 1989, ch. 755, § 1]

CHAPTER 61-20 Artesian Wells

61-20-01. Valve or valves required on artesian well — Flow permitted from artesian wells — Preventing flow.

Every person, stock company, association, corporation, or limited liability company owning or controlling the real estate upon which is located an artesian or flowing well shall provide for each such well a valve or valves capable of controlling the discharge from such well and shall keep such valve or valves so adjusted that only such supply of water shall escape as is necessary for ordinary use by the owner, or the person in control, of such land, in conducting the owner’s or person’s business. In the winter, such flow may be permitted as will prevent freezing of the well, and when it is necessary, a sufficient flow may be allowed for the purposes of developing the well. The owner of an artesian well shall be required, by means of the construction of a reservoir or otherwise, to prevent the flow of the owner’s well from running upon land belonging to another or from running into any ditch along any public highway except a regularly established drainage ditch.

Source:

S.L. 1921, ch. 17, § 1; 1925, ch. 89, § 1; 1925 Supp., § 2790b1; R.C. 1943, § 61-2001; S.L. 1985, ch. 682, § 1; 1993, ch. 54, § 106.

Law Reviews.

Rights to Ground Water in North Dakota: Trends and Opportunities, 71 N.D. L. Rev. 619 (1995).

61-20-02. Drilling artesian or flowing well — Requirements.

Every person, stock company, association, corporation, or limited liability company that shall drill an artesian or flowing well shall comply with the rules of the department of water resources regarding such activity.

Source:

S.L. 1921, ch. 17, § 2; 1925 Supp., § 2790b2; R.C. 1943, § 61-2002; S.L. 1985, ch. 682, § 2; 1993, ch. 54, § 106; 2021, ch. 488, § 162, eff August 1, 2021.

61-20-03. Wild wells.

The provisions of this chapter apply to a wild well, or a well out of control, except if it is determined by the department of water resources the well cannot be repaired for use, no valve may be attached, but every effort must be made by the owner to seal, plug, or cut off the well. Old wells that might be damaged by so doing need not be shut off, but such wells must be put in repair at the earliest possible date and must be regulated after the repair.

Source:

S.L. 1921, ch. 17, § 3; 1925 Supp., § 2790b3; R.C. 1943, § 61-2003; S.L. 1985, ch. 682, § 3; 2021, ch. 488, § 163, eff August 1, 2021.

61-20-04. Artesian or flowing wells — Penalty for certain actions.

The owner or person in control of an artesian or flowing well, who:

  1. Allows it to flow without a valve or other device for checking the flow as required by law, or without proper repair of pipes and valves;
  2. Interferes with the well, valve, or other device;
  3. Permits the water to waste unnecessarily; or
  4. Permits the water to run upon the lands of another or into the ditches along any public road except a regularly established drainage ditch,

shall be guilty of a class B misdemeanor. The provisions of this section shall also apply to the officer or members of a board in charge of wells belonging to the state, or any county, township, or municipality.

Source:

S.L. 1921, ch. 17, § 4; 1925, ch. 89, § 2; 1925 Supp., § 2790b4; R.C. 1943, § 61-2004; S.L. 1975, ch. 106, § 650.

Cross-References.

Penalties for classified offenses, see N.D.C.C. § 12.1-32-01.

61-20-05. Township and county assessors shall list all artesian and flowing wells annually — Forwarding data to state water commission. [Repealed]

Repealed by S.L. 1983, ch. 598, § 25.

61-20-06. Duties of the department of water resources.

The department of water resources shall advise the citizens of the state as to the practicability of measures affecting the underground waters of this state by:

  1. Counseling, consulting, and assisting the owner to work out the most desirable control and use of the owner’s well.
  2. Selecting at least three representative flowing wells in each county having that number, and as many more as the department may deem advisable.
  3. Causing the record of the wells’ flows and pressures to be taken, from time to time, to learn as much as possible of the decline, fluctuations, and permanence of the artesian supply.
  4. Planning and conducting other investigations as the department may find advisable to ascertain the best method of prolonging the utility of the same.
  5. Keeping a record of the location, size, depth, flow, size of flow, character of water, construction, and history of all artesian wells of the state, and keeping the record on file for public reference.
  6. Securing the enforcement of all laws pertaining to artesian and phreatic waters of the state.
  7. Publishing bulletins containing information concerning the artesian wells and phreatic waters of the state as often as the department deems advantageous.
  8. Making any additional, reasonable rules governing artesian wells as the department determines are necessary.

Source:

S.L. 1921, ch. 17, § 6; 1925 Supp., § 2790b6; R.C. 1943, § 61-2006; S.L. 1963, ch. 417, § 25; 1965, ch. 447, § 20; 1993, ch. 605, § 1; 2021, ch. 488, § 164, eff August 1, 2021.

61-20-07. Enforcement of chapter — Appeal.

The provisions of this chapter must be enforced by the department of water resources. The department may issue administrative orders requiring compliance with this chapter. An appeal from a ruling of the department may be taken under the provisions of chapter 28-32.

Source:

S.L. 1921, ch. 17, § 8; 1925 Supp., § 2790b7; S.L. 1927, ch. 88, § 1; R.C. 1943, § 61-2007; S.L. 1965, ch. 447, § 21; 1993, ch. 605, § 2; 2021, ch. 488, § 165, eff August 1, 2021.

61-20-08. Deputy — Appointment by state geologist — Removal — Salary. [Repealed]

Repealed by S.L. 1965, ch. 447, § 24.

CHAPTER 61-21 Drainage Assessment Projects

61-21-01. Definitions.

In this chapter, unless the subject matter otherwise requires:

  1. “Affected landowners” means landowners whose land is subject to assessment or condemnation.
  2. “Board” means the board of managers of a water resource district.
  3. “Cleaning out and repairing of drain” means deepening and widening of drains as well as removing obstructions or sediment, and any repair necessary to return the drain to a satisfactory and useful condition.
  4. “Drain” means any natural watercourse opened, or proposed to be opened, and improved for drainage and any artificial drains of any nature or description constructed for that purpose, including dikes and appurtenant works. This definition may include more than one watercourse or artificial channel constructed for the aforementioned purpose when the watercourses or channels drain land within a practical drainage area as determined by the written petition called for in section 61-21-10 and the survey and examination called for in section 61-21-12.
  5. “Lateral drain” means a drain constructed after the establishment of the original drain or drainage system and which flows into such original drain or drainage system from outside the limits of the original drain; provided, that a determination by the board as to whether an existing or proposed drain is a lateral or a new drain within the meaning of this subsection shall be conclusive when entered upon the records of such board.

Source:

S.L. 1955, ch. 347, § 1; R.C. 1943, 1957 Supp., § 61-2101; S.L. 1963, ch. 421, § 12; 1965, ch. 448, § 2; 1977, ch. 571, § 3; 1981, ch. 632, § 8; 2015, ch. 473, § 2, eff August 1, 2015.

Cross-References.

Definitions relating to water resource districts, see N.D.C.C. § 61-16.1-02.

Water resource district board of managers, see N.D.C.C. §§ 61-16-07 to 61-16-09, 61-16.1-09, 61-16.1-10.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

Collateral References.

Municipal liability arising from negligence or other wrongful act in carrying out construction or repair of sewers and drains, 61 A.L.R.2d 874.

61-21-02. Watercourses, ditches, and drains may be constructed, maintained, repaired, improved, or extended.

Watercourses, ditches, drains, and improvements thereto for the drainage of sloughs and other lowlands may be surveyed and investigated and established, constructed, maintained, repaired, improved, and cleaned out in the several counties of this state under the provisions of this chapter wherever the same shall be conducive to the public health, convenience, or welfare. The powers conferred by this chapter and this section shall extend to and include:

  1. The deepening and widening or any necessary improvement of drains which have been or hereafter may be constructed.
  2. The straightening, clearing, or cleaning out and deepening of channels of creeks, streams, and rivers, and the construction, maintenance, remodeling, repairing, and extension of levees, dikes, and barriers for the purpose of drainage.
  3. The location or extension of any drain if such location or extension is necessary to provide a suitable outlet or reasonably drain lands within a practical drainage area of such drains.
  4. The establishment, in whole or in part, of a drain and the completion of the same on the line of an abandoned or invalid drain.
  5. The establishment and construction of lateral drains with outlets in drains already constructed.
  6. The installation of artificial subsurface drainage systems.

Source:

S.L. 1955, ch. 347, § 2; R.C. 1943, 1957 Supp., § 61-2102; 2011, ch. 498, § 1; 2011, ch. 499, § 1.

DECISIONS UNDER PRIOR LAW

Obstruction of Watercourse.

Where board of drain commissioners having jurisdiction diverted flow of watercourse into another channel to relieve flooding in district such diversion of watercourse did not violate N.D.C.C. § 61-01-07 prohibiting unlawful obstruction of natural watercourse. Braaten v. Brenna, 63 N.W.2d 302, 1954 N.D. LEXIS 69 (N.D. 1954).

Power to Secure Outlet.

Improvement of watercourse after it passed beyond drainage district into foreign territory for purpose of making watercourse in this state efficacious, was not an unreasonable exercise of power to secure an outlet for drainage. Freeman v. Trimble, 21 N.D. 1, 129 N.W. 83 (N.D. 1910).

Law Reviews.

Waterfowl Production Areas: A State Perspective, 60 N.D. L. Rev. 659 (1984).

61-21-02.1. Assessment drain culverts.

As part of the design and construction of a proposed assessment drain or the maintenance or reconstruction of an existing assessment drain, the board, upon approval of the appropriate road authority, may locate, relocate, size, and install culverts through roads which are not on the routes of assessment drains but which are within the assessment area and which are necessary for surface water to reach the assessment drain. The design and installation of culverts under this section must be consistent with chapters 24-03 and 24-06 and the streamcrossing and construction site protection standards prepared by the department of transportation and the department of water resources.

Source:

S.L. 2007, ch. 558, § 1; 2021, ch. 488, § 166, eff August 1, 2021.

61-21-03. Board of drainage commissioners — Appointment — Term — Removal — Compensation. [Repealed]

Repealed by S.L. 1981, ch. 632, § 12.

61-21-04. State and county officers not eligible as drain commissioners — Matters of personal interest to drain commissioners. [Repealed]

Repealed by S.L. 1981, ch. 632, § 12.

61-21-05. Powers of board. [Repealed]

Repealed by S.L. 1981, ch. 632, § 12.

61-21-06. Board’s report to board of county commissioners — Contents — Inspection — Liability of drain commissioner on bond. [Repealed]

Repealed by S.L. 1981, ch. 632, § 12.

61-21-07. Oath and bond filed by drain commissioners — Organization of board — Quorum. [Repealed]

Repealed by S.L. 1981, ch. 632, § 12.

61-21-08. Office, records, clerk, and employment of personnel. [Repealed]

Repealed by S.L. 1981, ch. 632, § 12.

61-21-09. Levy for administrative expense — Payment of commissioners’ salaries and overhead expense. [Repealed]

Repealed by S.L. 1981, ch. 632, § 12.

61-21-10. Petition for construction of drain — Purposes of drain — Signers to petition.

A written petition for the construction of a drain may be made to the board. Such petition shall designate the starting point, terminus, and general course of the proposed drain. If among the leading purposes of the proposed drain are benefits to the health, convenience, or welfare of the people of any city, the petition shall be signed by a sufficient number of the property owners of such city to satisfy the board that there is a public demand for such drain. The petition shall be signed by at least six property owners or a majority of the landowners within the proposed district whose property will be drained by the proposed drain.

Source:

S.L. 1955, ch. 347, § 10; R.C. 1943, 1957 Supp., § 61-2110.

DECISIONS UNDER PRIOR LAW

Analysis

Contents of Petition.

Petition did not need to contain facts other than those expressly prescribed by statutes. Hackney v. Elliott, 23 N.D. 373, 137 N.W. 433, 1912 N.D. LEXIS 113 (N.D. 1912).

Petition was required to show public demand for drain. State ex rel. Bale v. Morrison, 24 N.D. 568, 140 N.W. 707, 1913 N.D. LEXIS 26 (N.D. 1913); Stoltze v. Sheridan, 28 N.D. 194, 148 N.W. 1, 1914 N.D. LEXIS 100 (N.D. 1914).

Cure of Defects in Petition.

Finding of essential facts by drainage commissioners cured defects in petition upon which findings were based. Hackney v. Elliott, 23 N.D. 373, 137 N.W. 433, 1912 N.D. LEXIS 113 (N.D. 1912).

Jurisdiction.

Board of drain commissioners had jurisdiction to enter upon inquiry with respect to proposed drain when petition was filed. Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 1948 N.D. LEXIS 71 (N.D. 1948).

Withdrawal of Names.

Jurisdiction of drain commissioners could not be divested by withdrawal of names from petition filed. Sim v. Rosholt, 16 N.D. 77, 112 N.W. 50, 11, 1907 N.D. LEXIS 24 (N.D. 1907).

61-21-11. Bond required from petitioners.

The board may require the petitioners referred to in section 61-21-10 to file a bond with the petition in a sum sufficient to pay all expenses of surveys and of the board should the petition be later denied. However, in no event shall the petitioners be required to pay expenses of surveys and of the water resource board, and any other expenses that may be incurred, if the petition is later approved, but the drain is not constructed.

Source:

S.L. 1955, ch. 347, § 11; R.C. 1943, 1957 Supp., § 61-2111; S.L. 1979, ch. 646, § 1; 1981, ch. 632, § 9.

61-21-12. Examination of line for drain — Designation of surveyor — Specifications — Cost estimates.

Upon presentation of a petition as provided in section 61-21-10, the board shall examine the line of the proposed drain, and if in its opinion further proceedings are warranted, it shall adopt a resolution to that effect and designate a competent surveyor or engineer to assist the board. For the purpose of making examinations or surveys, the board or its employees may enter upon any land traversed by any proposed drain or any other lands necessary to gain access thereto. The surveyor or engineer shall prepare profiles, plans, and specifications of the proposed drain, estimates of the total cost thereof, and a map or plan of the lands to be drained showing the regular subdivisions thereof, which map or plan shall be filed in the office of the county auditor for inspection by the public. In determining the best location for the proposed drain, the board may in its discretion set the location on lines differing from the lines described in the petition. When the length of line described in the petition does not give sufficient fall to drain the land sought to be drained, the board may extend the drain below the outlet named in the petition. The estimate of costs prepared by the surveyor or engineer shall be in sufficient detail to allow the board to determine the probable share of the total costs that will be assessed against each of the affected landowners in the proposed drainage district.

Source:

S.L. 1955, ch. 347, § 12; R.C. 1943, 1957 Supp., § 61-2112.

DECISIONS UNDER PRIOR LAW

Analysis

Authority to Secure Outlet.

Joint boards of drainage commissioners had authority to secure outlet in foreign territory to drain established within their jurisdiction, if there was public necessity for such outlet. Freeman v. Trimble, 21 N.D. 1, 129 N.W. 83 (N.D. 1910).

Duty upon Filing of Petition.

Upon filing of petition for construction of drain it became duty of board of drain commissioners, as soon as practicable, to examine proposed drain, and if in its opinion proposed drain was necessary for public good to adopt resolution to that effect, and also adopt resolution designating surveyor to survey line of proposed drain and establish commencement and terminus and determine route, width, length and depth thereof. Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 1948 N.D. LEXIS 71 (N.D. 1948); Braaten v. Brenna, 63 N.W.2d 302, 1954 N.D. LEXIS 69 (N.D. 1954).

Surveyor’s Report.

Failure to file surveyor’s report with county auditor prior to hearing on feasibility of establishing drain, did not defeat authority of drainage board to hold hearing and by order establish drain if prior to hearing duplicate of such report was on file before board, if no prejudice resulted from omission. Edwards v. Cass County, 23 N.D. 555, 137 N.W. 580, 1912 N.D. LEXIS 126 (N.D. 1912).

61-21-13. Hearing on petition to establish drain and surveyor’s report — Notice — Contents.

Upon the filing of the surveyor’s or engineer’s report provided for in section 61-21-12, the board shall fix a date and place for public hearing on the petition. Such place of hearing shall be in the vicinity of the proposed drain and shall be convenient and accessible for the majority of the landowners subject to assessment for such drain or whose property shall be subject to condemnation for the proposed drain. At least ten days before such hearing, the board shall file with the county auditor a list showing the percentage assessment against each parcel of land benefited by the proposed drain and the approximate assessment in terms of money apportioned thereto. Notice of such filing shall be included in the notice of hearing on the petition. At least ten days’ notice of such hearing shall be given by publishing a notice at least once in the official newspaper of the county in which the proposed drain is located. In addition, each owner of land subject to assessment for the proposed drain and each landowner whose property shall be subject to condemnation for the proposed drain as shown by the record in the office of the recorder shall be mailed a notice of such hearing at the owner’s post-office address as shown by such records. Notices of such hearing shall contain a copy of the petition and the time and place where the board will act upon the petition. The notice of hearing shall specify the point or place of beginning of the proposed drain and where it terminates, and shall describe the general course of the drain as finally determined by the engineer and the board. The notice of hearing shall also specify when and where votes for and against such proposed drain shall be filed. The final date when votes must be filed shall not be less than ten days after the date of the hearing on the petition. A form of ballot shall be mailed with the notice of hearing for use by the affected landowners in voting for or against the proposed drain. An affidavit of mailing signed by the attorney or clerk of the board or other person mailing such notices shall be filed with the county auditor who shall file such affidavit with the records of the proceedings pertaining to that drain. All persons whose land may be subject to assessment for such drain or whose property shall be subject to condemnation for such drain may appear before the board, fully express their opinions, and offer evidence upon the matters pertaining thereto.

Source:

S.L. 1955, ch. 347, § 13; R.C. 1943, 1957 Supp., § 61-2113; S.L. 1961, ch. 382, § 1; 1965, ch. 448, § 3; 2001, ch. 120, § 1.

Cross-References.

Official newspaper of county, see N.D.C.C. ch. 46-06.

DECISIONS UNDER PRIOR LAW

Analysis

Continuance of Hearing.

Board of drain commissioners had authority to continue hearing, including consideration of petitions for discontinuance of proceedings presented at such hearing. Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 1948 N.D. LEXIS 71 (N.D. 1948).

Notice of Hearing.

Upon filing of surveyor’s report board was required to fix date and public place for hearing objections to petition and to give notice of such hearing. Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 1948 N.D. LEXIS 71 (N.D. 1948).

Petition for Discontinuance.

If majority of owners of land subject to assessment for construction of proposed drain petitioned for discontinuance of proceedings, board was required to adopt resolution ordering that further proceedings be discontinued. Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 1948 N.D. LEXIS 71 (N.D. 1948).

Surveyor’s Report.

Failure to file surveyor’s report with county auditor did not defeat authority of drainage board to hold hearing and establish drain if prior to hearing duplicate of such report was on file before board, and if no prejudice resulted from omission. Edwards v. Cass County, 23 N.D. 555, 137 N.W. 580, 1912 N.D. LEXIS 126 (N.D. 1912).

61-21-14. Conduct of hearing on petition to establish drain.

Prior to the hearing provided for in section 61-21-13, the board shall first prepare a roster or roll of affected landowners subject to assessment for such drain or whose property shall be subject to condemnation for such drain, and shall limit voting rights to such landowners. A record shall be made by the board of affected landowners present in person or by agent and such records shall be preserved in the minutes of the meeting. Affected landowners shall then be informed of the probable total cost of the project and their individual share of such cost and the amount of their property to be condemned for such project. The board shall fix a time, which shall not be less than ten days after the hearing on the petition, within which the votes for and against the establishment of the proposed drain shall be filed with the board. Objections to or approvals of the drain in writing may be filed with the board and shall be considered as votes for or against the proposed drain, as the case may be. A telegram shall be deemed writing, and any form of written approval or objection which sufficiently indicates the intention of the writer shall be sufficient. Once the deadline for filing votes for or against the proposed drain has been reached, no more votes for or against such drain shall be filed and no person shall withdraw that person’s name from the list of those voting for or against the proposed drain after the deadline for filing votes has been reached. Any withdrawals of objections to or approvals of the proposed drain before that time shall be in writing only. When the votes of affected landowners have been filed and the deadline for filing votes for and against such drain has been reached, the board shall immediately proceed to determine whether or not more than fifty percent of the votes filed, as determined by section 61-21-16, are in favor of the construction of the drain. Until such determination is made, the board is without jurisdiction to take any further steps in the matter except to determine whether more than fifty percent of the votes filed are in favor of the drain and to adopt a resolution for discontinuance, if not more than fifty percent of the votes filed favor construction of the drain.

Source:

S.L. 1955, ch. 347, § 14; R.C. 1943, 1957 Supp., § 61-2114; S.L. 1961, ch. 382, § 2; 1965, ch. 448, § 4.

DECISIONS UNDER PRIOR LAW

Analysis

“Affected Landowner.”

Under former law providing for roster of “affected landowners”, an affected landowner was one whose land was subject to assessment for his proportionate share of cost of proposed drain. Braaten v. Brenna, 63 N.W.2d 302, 1954 N.D. LEXIS 69 (N.D. 1954).

Petitioner for Discontinuance.

Petition for discontinuance of further proceedings could be presented to board of drain commissioners at any time upon and during hearing on petition for establishment of drain; and one who petitioned for discontinuance could withdraw his petition or his signature to any petition seeking discontinuance at any time before hearing was closed, or board had taken final action. Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 1948 N.D. LEXIS 71 (N.D. 1948).

Withdrawal of Names.

Jurisdiction of drain commissioners cannot be divested by withdrawal of names from petition filed. Sim v. Rosholt, 16 N.D. 77, 112 N.W. 50, 11, 1907 N.D. LEXIS 24 (N.D. 1907).

61-21-15. Denying or making order establishing drain — Costs when petition denied.

If, upon the examination by the board before the survey has been made, or, if upon the hearing upon the petition or upon the trial in the district court, it shall appear that there was not sufficient cause for making such petition, or that the proposed drain would cost more than the amount of the benefits to be derived therefrom or that fifty percent or more of the votes of affected landowners as determined by section 61-21-16, which were filed with the board, are opposed to such drain, the board shall deny the petition. An objection in writing filed with the board shall, as provided in section 61-21-13, be considered the same as a vote by ballot. The board may bring an action against the petitioners or upon their bond for all costs and expenses incurred in the proceedings, in which case the petitioners shall be jointly and severally liable, or the board may pay the costs and expenses out of any moneys available. If it shall appear, after due hearing as provided in sections 61-21-13 and 61-21-14, that the proposed drain will not cost more than the amount of the benefits to be derived therefrom and is approved by more than fifty percent of the votes of the affected landowners filed with the board as determined by section 61-21-16, the board shall make an order establishing the drain, accurately describing it, and giving the same a name under which it shall be recorded and indexed.

Source:

S.L. 1955, ch. 347, § 15; R.C. 1943, 1957 Supp., § 61-2115; S.L. 1961, ch. 382, § 3; 1979, ch. 646, § 2.

DECISIONS UNDER PRIOR LAW

Analysis

Cost-Benefit Analysis.

Board of drain commissioners was required to determine whether construction cost would exceed benefits derived from drain. Bergen Township v. Nelson County, 33 N.D. 247, 156 N.W. 559, 1915 N.D. LEXIS 45 (N.D. 1915).

Cure of Defects in Petition.

Finding of essential facts by drainage commissioners cured defects in petition upon which findings were based. Hackney v. Elliott, 23 N.D. 373, 137 N.W. 433, 1912 N.D. LEXIS 113 (N.D. 1912).

Establishment of Drain.

Board of drain commissioners could make order establishing drain after receiving petition for construction, making proper inspection, preparing survey, estimating cost, and giving notice to affected landowners, if it found that cost would not exceed benefits of drain. Braaten v. Brenna, 63 N.W.2d 302, 1954 N.D. LEXIS 69 (N.D. 1954).

61-21-16. Voting right or power of landowners.

In order that there may be a fair relation between the amount of liability for assessments and the power of objecting to the establishment of a proposed drain, the voice or vote of affected landowners on the question of establishing the drain shall be arrived at in the following manner:

The landowner or landowners of tracts of land affected by the drain shall have one vote for each dollar of assessment that the owner’s land is subject to or one vote for each dollar of the assessed valuation of land condemned for the drain, as estimated by the board under the provisions of section 61-21-12. It is the intent of this section to allow one vote for each dollar of assessment, regardless of the number of owners of such tract of land. Where more than one owner of such land exists, the votes shall be prorated among them in accordance with each owner’s interest.

A written power of attorney shall authorize an agent to cast the votes of any affected landowners.

Source:

S.L. 1955, ch. 347, § 16; R.C. 1943, 1957 Supp., § 61-2116; S.L. 1961, ch. 383, § 1; 1965, ch. 448, § 5.

Cross-References.

Water resource district projects, voting rights of affected landowners, see N.D.C.C. § 61-16.1-20.

Notes to Decisions

Constitutionality.

Voting formula set forth in this section is not repugnant to section 21 or section 22 of article I of state constitution nor violative of equal protection clause of U.S. constitution; the construction of water control devices in areas of state susceptible to periodic flooding establish a “compelling state interest” and an exception to the “one man — one vote” doctrine. Wallegham v. Thompson, 185 N.W.2d 649, 1971 N.D. LEXIS 182 (N.D. 1971).

Reassessments.

A vote on whether to build a proposed drain, under this section, by its terms, does not apply to reassessments for an existing drain. Accordingly, N.D.C.C. § 61-21-62 does not provide for an owner vote for or against reassessments. Anderson v. Richland County Water Resource Bd., 506 N.W.2d 362, 1993 N.D. LEXIS 167 (N.D. 1993).

DECISIONS UNDER PRIOR LAW

One Vote per Owner.

Under former law each landowner was entitled to at least one vote and an additional vote for each one hundred dollars or major fraction thereof of assessment to which land was subject; and majority of landowners was determined in accordance with number of votes cast by each landowner. Lee v. Thorenson, 65 N.W.2d 675, 1954 N.D. LEXIS 98 (N.D. 1954).

61-21-17. Notice of order establishing drain and period for appeal.

Upon the making of an order establishing or denying establishment of a drain, the board shall give notice to all affected landowners by publishing a notice in a newspaper of general circulation in the county. The notice must include a copy of the order and must advise the affected landowners of their right to appeal under section 61-21-18.

Source:

S.L. 1955, ch. 347, § 17; R.C. 1943, 1957 Supp., § 61-2117; S.L. 1989, ch. 83, § 30.

Cross-References.

Appeals from water resource district boards, see N.D.C.C. §§ 61-16.1-54 to 61-16.1-58.

61-21-18. Appeal to district court — Time — Undertaking — Hearing.

Any person whose land is assessed or may be assessed or is condemned or may be condemned for the construction of a drain under the provisions of this chapter may appeal to the district court from the order of the board establishing or denying the establishment of the drain. The appeal must be taken in accordance with the procedure provided in section 28-34-01. The appellant must give an undertaking to be approved by the clerk of district court in the sum of two hundred fifty dollars for the payment of the costs in the event that the appellant is unsuccessful in the district court. The undertaking must run in favor of the county in which the drain is located, and, if located in more than one county, it may run in the name of either of the counties in which the drain is located. The judge shall hear the appeal not less than ten days nor more than thirty days after the filing of the appeal with the clerk, the day of hearing to be fixed by the court, but such time for hearing may be extended by the court for good cause for a period not to exceed thirty days. The case must be tried in all respects as a court case without a jury. Where the appeal is perfected, the district court upon the hearing may try and determine the question as to whether, in the first instance, there was sufficient cause for making the petition for the establishment of the drain, whether the proposed drain will cost more than the amount of the benefits to be derived therefrom, and whether such drain was objected to by a majority of the affected landowners in accordance with the weighted voting provisions of section 61-21-16.

Source:

S.L. 1955, ch. 347, § 18; R.C. 1943, 1957 Supp., § 61-2118; S.L. 1965, ch. 448, § 6; 1989, ch. 83, § 31.

DECISIONS UNDER PRIOR LAW

Analysis

Finality of Board Action.

When the board of drain commissioners proceeded by statute, its action was final, and the court would not inquire into correctness of determinations upon questions within board’s jurisdiction, except for fraud or other ground for equitable interference. Bergen Township v. Nelson County, 33 N.D. 247, 156 N.W. 559, 1915 N.D. LEXIS 45 (N.D. 1915).

Proof of fraud or other ground for equitable interference was insufficient to require court of equity to review findings and determinations of drain commissioners. Barnes v. Cass County, 59 N.D. 135, 228 N.W. 839, 1929 N.D. LEXIS 240 (N.D. 1929).

No Jury on Appeal.

Appeal to district court from order of board establishing drain was to be tried in all respects without a jury and court was not concluded by any determination made by board. Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 1948 N.D. LEXIS 71 (N.D. 1948).

Right of Appeal.

Any person whose land was assessed or subject to assessment for construction of drain could appeal from order establishing drain. Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 1948 N.D. LEXIS 71 (N.D. 1948); Braaten v. Brenna, 63 N.W.2d 302, 1954 N.D. LEXIS 69 (N.D. 1954).

Scope of Review.

District court could review and determine all questions involved in proceeding for establishment of drain, including questions of sufficient cause for petition and of cost exceeding amount of benefits. Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 1948 N.D. LEXIS 71 (N.D. 1948); Braaten v. Brenna, 63 N.W.2d 302, 1954 N.D. LEXIS 69 (N.D. 1954).

61-21-19. Right of way — How acquired — Assessment of damages — Issuance of warrants.

Subject to chapter 32-15, the right of way for the construction, operation, and maintenance of a proposed drain, if not conveyed to the county by the owner, may be acquired by eminent domain. If lands assessed for drainage benefits are not contiguous to the drain, access right of way thereto over the land of others may be acquired in the same manner. The right of way, when acquired, is the property of the county. The board may issue warrants in a sum sufficient to pay the damages assessed for the right of way. The warrants must be drawn upon the proper county treasurer or, if the water resource district treasurer is custodian of the drain funds, water resource district treasurer, and are payable out of drain funds in the hands of the treasurer that have been collected for the construction of the drain for which the right of way is sought to be obtained. The board shall negotiate the warrants at not less than the par value thereof and shall pay into court for the benefit of the owners of the right of way the amount to which each is entitled according to the assessment of damages, paying the surplus, if any, to the county treasurer or water resource district treasurer, who shall place the same to the credit of the proper drain fund.

Source:

S.L. 1955, ch. 347, § 19; R.C. 1943, 1957 Supp., § 61-2119; S.L. 1963, ch. 421, § 14; 2001, ch. 567, § 1; 2007, ch. 293, § 42.

Cross-References.

Eminent domain, see N.D.C.C. ch. 32-15.

DECISIONS UNDER PRIOR LAW

Improvement of Watercourses.

Statute which made it necessary to secure right-of-way to land through which drains in this state pass had no application to improvement of watercourses for drainage purposes. Freeman v. Trimble, 21 N.D. 1, 129 N.W. 83 (N.D. 1910).

Jury.

Former law did not contemplate assessment of benefits of drain by jury. Ross v. Prante, 17 N.D. 266, 115 N.W. 833, 1908 N.D. LEXIS 30 (N.D. 1908); Heskin v. Herbrandson, 21 N.D. 232, 130 N.W. 836, 1911 N.D. LEXIS 90 (N.D. 1911).

No Liability on Warrants.

Warrants issued by county drain commissioners created no general liability against county. Redmon v. Chacey, 7 N.D. 231, 73 N.W. 1081 (1898), decided prior to the amendment to former R.L. 1899, §§ 2318 and 2326d (now see N.D.C.C. § 40-22-36), by Session Laws 1905, ch. 62; distinguished, Pine Tree Lumber Co. v. Fargo, 12 N.D. 360, 96 N.W. 357, 1903 N.D. LEXIS 36 (N.D. 1903).

Collateral References.

Compensation for diminution in value of the remainder of property resulting from taking or use of adjoining land of others for the same undertaking, 59 A.L.R.3d 488.

61-21-20. Assessing cost of constructing and maintaining drain.

After the making of the order establishing the drain, the board shall assess the percentage of the cost of acquiring right of way and constructing and maintaining such drain in accordance with benefits received, against:

  1. Any county, township, or city which is benefited thereby; and
  2. Any lot, piece, parcel, or interest in land which is either directly or indirectly benefited by such drain or by such drain in connection with other existing or proposed drains.

No land already included in and being assessed by an existing drainage district shall be included and assessed in any newly formed drainage district unless it can be shown that such land will be benefited by the construction of the new drain. The board in considering the benefit and assessing the percentage of costs to each affected tract, parcel, or piece of land may, among other things, take into consideration the present drainage facilities under any existing drainage district, potential use of the proposed drain by such land, whether any such lands will be benefited or harmed by any change in the existing flow and course of drainage water by reason of the construction of the drain, and such other matters as may be pertinent to the question of benefits.

Source:

S.L. 1955, ch. 347, § 20; R.C. 1943, 1957 Supp., § 61-2120.

Cross-References.

Assessments for water resource district projects, see N.D.C.C. §§ 61-16.1-21 to 61-16.1-33.

DECISIONS UNDER PRIOR LAW

Constitutionality.

Special assessment for local drain upon railway right-of-way did not violate Commerce Clause or Fourteenth Amendment to federal constitution.Northern Pac. Ry. v. Richland County, 28 N.D. 172, 148 N.W. 545, 1914 N.D. LEXIS 106 (N.D. 1914); Northern Pac. Ry. v. Sargent County, 43 N.D. 156, 174 N.W. 811, 1919 N.D. LEXIS 30 (N.D. 1919).

Citizen Petition Requirement.

No authority was vested in drain commissioners to assess for establishment and construction of drain lying in one township against another township, in absence of signatures on petition of citizens of township attempted to be assessed. State ex rel. Bale v. Morrison, 24 N.D. 568, 140 N.W. 707, 1913 N.D. LEXIS 26 (N.D. 1913).

Judicial Review.

Court does not inquire into correctness of judgment of drainage board as to alleged benefits in absence of fraud or manifest abuse of discretion. Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841, 1902 N.D. LEXIS 244 (N.D. 1902); Freeman v. Trimble, 21 N.D. 1, 129 N.W. 83 (N.D. 1910); Barnes v. Cass County, 59 N.D. 135, 228 N.W. 839, 1929 N.D. LEXIS 240 (N.D. 1929).

Assessment of benefits by board was final unless assailed for fraud or other ground for equitable interference. State ex rel. Dorgan v. Fisk, 15 N.D. 219, 107 N.W. 191, 1906 N.D. LEXIS 33 (N.D. 1906).

Jury.

Former law did not contemplate assessment of benefits by jury. Ross v. Prante, 17 N.D. 266, 115 N.W. 833, 1908 N.D. LEXIS 30 (N.D. 1908).

Jury was not authorized to consider benefits to land about to be condemned in determining amount of compensation; benefits were to be determined by board of drain commissioners. Heskin v. Herbrandson, 21 N.D. 232, 130 N.W. 836, 1911 N.D. LEXIS 90 (N.D. 1911).

Laches.

In an action to determine adverse claims, in which validity of special assessment for drain was attacked, where plaintiff knew of drain during its construction, and shared in its benefits, and where no proof was offered to show what assessment should have been, and no tender of payment had been made, plaintiff was guilty of laches, and relief was denied. Northern Pac. Ry. v. Sargent County, 43 N.D. 156, 174 N.W. 811, 1919 N.D. LEXIS 30 (N.D. 1919).

“Speculative Benefits.”

Assessments authorized were for benefits special to land assessed and not “conjectural” or “speculative” benefits. Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841, 1902 N.D. LEXIS 244 (N.D. 1902).

Collateral References.

Tax sale as freeing property from possibility of further assessments for benefits to land, 11 A.L.R.2d 1133.

61-21-21. Assessment subject to review — Notice of time and place.

The percentage assessments provided for in section 61-21-20 shall be subject to review, and ten days’ notice of the time and place where such percentage assessments will be reviewed by the board shall be given by publication in a newspaper having general circulation in the county. In addition, each owner of land affected by the proposed drain as shown by the record in the office of the recorder or county treasurer shall be mailed a notice of such hearing at the owner’s post-office address as shown by such records, and an affidavit of mailing shall be filed with the proceedings of such drain.

Source:

S.L. 1955, ch. 347, § 21; R.C. 1943, 1957 Supp., § 61-2121; S.L. 2001, ch. 120, § 1.

DECISIONS UNDER PRIOR LAW

Analysis

Constitutionality.

The so-called Drainage Act did not violate Fourteenth Amendment to constitution of United States since review was provided and hearing was granted for production of evidence in assessing benefits. Soliah v. Cormack, 17 N.D. 393, 117 N.W. 125, 1908 N.D. LEXIS 63 (N.D. 1908), aff'd, 222 U.S. 522, 32 S. Ct. 103, 56 L. Ed. 294, 1912 U.S. LEXIS 2205 (U.S. 1912).

Notice.

Failure to post notices of time and place of review of special percentage assessments of benefits in one of three townships within drainage area amounted to noncompliance with statute and rendered proceedings for review in such township invalid. Edwards v. Cass County, 23 N.D. 555, 137 N.W. 580, 1912 N.D. LEXIS 126 (N.D. 1912).

61-21-22. Hearing on assessment — Appeal — Correction of assessments — Relocating drain — Fees .

At the hearing provided for in section 61-21-21, the board shall proceed to hear all complaints relative to the percentage assessments and shall correct or confirm the same. Should landowners subject to assessment or whose property is subject to condemnation for the construction of the proposed drain having a majority of the possible votes, as determined by section 61-21-16, believe that the assessment had not been fairly or equitably made, or that the drain is not properly located or designed, they may appeal to the department of water resources by petition within ten days after the hearing on assessments, to review the percentage assessments and to examine the location and design of the proposed drain. Upon the receipt of the petition, the department shall examine the lands assessed and the location and design of the proposed drain, and should the department determine the assessments have not been made equitably, the department may correct the assessments, and the department’s correction and adjustment of assessments are final. Should the department determine the drain has been improperly located or designed, the department may order a relocation and redesign. The relocation and redesign must be followed in the construction of the proposed drain. For the department’s services in reviewing the assessments and examining the location and design, the department is entitled to ten dollars per day and actual and necessary expenses during the time the department is engaged upon the work. All moneys received by the department must be paid into the state treasury and credited to the general fund. After the hearing provided in this section, the board shall make a finding that the benefits to all tracts of land will exceed the costs that will be assessed against the lands. Any landowner who claims the landowner will receive no benefit from the construction of a new drain may appeal the question of whether there is any benefit to the department upon the filing of a bond in the sum of two hundred fifty dollars with the board for the payment of the costs of the department in the matter. The department may not determine the specific amount of benefits upon an appeal by an individual landowner, but shall determine only whether there is any benefit to the landowner, and the determination of the department is final.

Source:

S.L. 1955, ch. 347, § 22; R.C. 1943, 1957 Supp., § 61-2122; S.L. 1965, ch. 448, § 7; 2021, ch. 488, § 167, eff August 1, 2021.

Notes to Decisions

Appeal.

The proper place to assert a challenge to the water resource board’s determination of benefit is before the state engineer under this section, not the supreme court. Anderson v. Richland County Water Resource Bd., 506 N.W.2d 362, 1993 N.D. LEXIS 167 (N.D. 1993).

61-21-23. Recording assessment.

After the percentage assessment of benefits has been made, as provided in section 61-21-20 and confirmed upon hearing as provided in section 61-21-22, the board shall record such percentage assessments in the permanent records of the drain and such percentage assessment shall further be permanently recorded by the county auditor in a book of drainage assessments.

Source:

S.L. 1955, ch. 347, § 23; R.C. 1943, 1957 Supp., § 61-2123.

DECISIONS UNDER PRIOR LAW

Record of Filing of Return.

Failure to make record of filing of return of proceedings concerning assessment of benefits did not make assessment invalid. Hackney v. Elliott, 23 N.D. 373, 137 N.W. 433, 1912 N.D. LEXIS 113 (N.D. 1912).

61-21-24. Notice of letting of contracts.

After the recording of percentage assessments as provided in section 61-21-23, the board shall then give at least ten days’ notice of the time and place where contracts will be let for the construction of the drain. Such notice shall be published at least once in a newspaper having general circulation in the county.

Source:

S.L. 1955, ch. 347, § 24; R.C. 1943, 1957 Supp., § 61-2124; S.L. 1963, ch. 421, § 15.

Cross-References.

Contracts for construction and maintenance of water resource district projects, see N.D.C.C. § 61-16.1-14.

DECISIONS UNDER PRIOR LAW

Timing of Acceptance of Bids.

Under former law, board of drain commissioners, pursuant to valid order establishing drain, could accept bids for construction contract although ten days’ time had not intervened between hearing upon review of assessment and time specified in notice when board would meet for purpose of considering bids. Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418, 1948 N.D. LEXIS 71 (N.D. 1948).

61-21-25. Letting of contracts for drains.

The board shall let contracts for the construction of the drain, culverts, bridges, and appurtenances thereto, or portions thereof, in accordance with chapter 48-01.2.

Source:

S.L. 1955, ch. 347, § 25; R.C. 1943, 1957 Supp., § 61-2125; S.L. 1977, ch. 571, § 4; 1995, ch. 443, § 26; 2007, ch. 403, § 22.

DECISIONS UNDER PRIOR LAW

Injunction.

Collection of assessments for drain was not permanently enjoined because of irregularities in letting contracts where permanent injunction was not requested until after drain was completed. Alstad v. Sim, 15 N.D. 629, 109 N.W. 66, 1906 N.D. LEXIS 82 (N.D. 1906).

61-21-26. Extension of time to contractors — Reletting unfinished part of contract.

The board may grant a reasonable extension of time for the completion of any contract. When any contract shall not be finished within the time specified, or to which it may be extended, the board in its discretion at any time thereafter may relet such unfinished portion or any part thereof to the lowest responsible bidder, and shall take security as before. The cost of completing such unfinished portions over and above the contract price, and the expense of notices and reletting shall be collected by the board from the parties first contracting. In no case shall the board forfeit and annul a contract without giving five days’ notice to the contractor, if the contractor can be found or has a known place of residence in the county. Such notice may be given to such contractor personally or may be left at the contractor’s place of residence.

Source:

S.L. 1955, ch. 347, § 26; R.C. 1943, 1957 Supp., § 61-2126.

61-21-27. Apportionment and taxation of costs.

After the letting of contracts or a portion thereof, the board shall compute the cost of the drain, including estimated costs of any unfinished portions. The board shall determine the sum to be levied to pay such cost, which sum shall be prorated and assessed against lands in accordance with the percentage determined under section 61-21-20. A copy of the list of assessments shall be served on the clerk or auditor of each municipality against which taxes are to be assessed and shall also be filed in the office of the county auditor of the county or counties in which municipalities and lands benefited by the drain are situated. The provisions of section 61-21-52 shall apply to the levies and assessments provided for in this section.

Source:

S.L. 1955, ch. 347, § 27; R.C. 1943, 1957 Supp., § 61-2127.

DECISIONS UNDER PRIOR LAW

Analysis

Apportionment of Benefits.

Fact that actual cost might far exceed estimated cost did not affect validity of apportionment of benefits by percentages. Hackney v. Elliott, 23 N.D. 373, 137 N.W. 433, 1912 N.D. LEXIS 113 (N.D. 1912).

Compensation.

Jury was not authorized to consider benefits to land condemned in determining compensation. Heskin v. Herbrandson, 21 N.D. 232, 130 N.W. 836, 1911 N.D. LEXIS 90 (N.D. 1911).

Interest.

Special drain assessments bore interest only from time they had to be paid. Hackney v. Elliott, 23 N.D. 373, 137 N.W. 433, 1912 N.D. LEXIS 113 (N.D. 1912).

Railroad.

Railroad right-of-way was subject to assessment for local drain. Northern Pac. Ry. v. Richland County, 28 N.D. 172, 148 N.W. 545, 1914 N.D. LEXIS 106 (N.D. 1914).

61-21-28. Collection of drain taxes.

The county treasurer shall collect the drain taxes and shall credit all moneys so collected to the drain fund to which they belong. The county treasurer shall act as the custodian of the drain funds unless the board of the water resource district having jurisdiction over the drain requests otherwise in writing. Upon receiving a written request from the water resource district board, the county treasurer shall pay all moneys collected, and the earnings thereon, to the treasurer of the water resource district, who shall then act as the custodian of the drain funds. A direction by a board is effective for all moneys then in the custody of the county treasurer and all moneys subsequently collected thereafter unless and until the board directs in writing that the county treasurer act as the custodian of the moneys.

Source:

S.L. 1955, ch. 347, § 28; R.C. 1943, 1957 Supp., § 61-2128; S.L. 2001, ch. 567, § 2.

Cross-References.

Collection of special assessments for water resource district projects, see N.D.C.C. § 61-16.1-29.

Lien and sale of property for special assessments levied under this title, see N.D.C.C. §§ 61-01-20, 61-01-21.

DECISIONS UNDER PRIOR LAW

Funds Held Until Disbursed.

Interest and penalty paid into particular drain fund as part of drain assessment must remain in hands of county treasurer until disbursed for drainage purposes. State ex rel. Viking Township v. Mikkelson, 24 N.D. 175, 139 N.W. 525, 1912 N.D. LEXIS 26 (N.D. 1912).

61-21-29. Payment of costs and expenses of locating, constructing, maintaining, and improving drain — Warrants issued.

Payment of all expenses and costs of locating and constructing a drain must be made upon order of the board and warrants therefor must be signed by the chairman and one other member of the board. All warrants drawn by the board in payment of items of expense of a drain are payable from the proper drain fund and must be accepted by the treasurer in payment of taxes levied in regard to the drain. All warrants, after presentation to the county treasurer or, if the water resource district treasurer is custodian of the drain funds, the water resource district treasurer for payment, if not paid for want of funds, must be registered by the county treasurer or water resource district treasurer and thereafter bear interest at a rate not to exceed eight percent per annum. The county commissioners, by proper resolution, are authorized to purchase drainage warrants from general county funds in instances when the warrants will be funded by a bond issue within six months from the date of purchase.

Source:

S.L. 1955, ch. 347, § 29; R.C. 1943, 1957 Supp., § 61-2129; S.L. 1971, ch. 249, § 35; 2001, ch. 567, § 3.

DECISIONS UNDER PRIOR LAW

Analysis

Liability Against County.

No general liability against county was created by drainage warrants. Redmon v. Chacey, 7 N.D. 231, 73 N.W. 1081 (1898), decided prior to the amendment to former R.L. 1899, §§ 2318 and 2326d (now see N.D.C.C. § 40-22-36), by Session Laws 1905, ch. 62; distinguished, Pine Tree Lumber Co. v. Fargo, 12 N.D. 360, 96 N.W. 357, 1903 N.D. LEXIS 36 (N.D. 1903).

Warrants As Obligations of the Board.

Warrants issued by county drainage board to pay expenses incurred in furtherance of established drain, which was abandoned before completion, were obligations of board and authorized board to procure funds for discharge of such warrants. Walstad v. Dawson, 64 N.D. 333, 252 N.W. 64, 1934 N.D. LEXIS 204 (N.D. 1934).

61-21-30. Additional assessment to meet deficit or additional expense.

In case the amount realized from the assessment made for the acquisition of right of way or for the construction, improvement, repair, and maintenance of any drain is not sufficient to pay all necessary expenses in regard thereto, or to pay and retire any bonds issued in connection with such operations, a further assessment shall be made to meet such deficit and such additional amount shall be levied and collected in the manner provided in sections 61-21-27, 61-21-28, and 61-21-52.

Source:

S.L. 1955, ch. 347, § 30; R.C. 1943, 1957 Supp., § 61-2130.

61-21-31. Drains along and across public roads and railroads.

Drains may be laid along, within the limits of, or across any public road or highway, but not to the injury of such road. Where it is necessary to run a drain across such highway, the department of transportation, board of county commissioners, or the board of township supervisors, as the case may be, when notified by the board to do so, shall make necessary openings through such road or highway and shall build and keep in repair all suitable culverts or bridges at its own expense, as provided under the applicable provisions of section 61-21-32. Where drains are laid along or within the limits of roads or highways, such drains shall be maintained and kept open by the board at the expense of the drainage district concerned. A drain may be laid along any railroad when necessary, but not to the injury of such road, and when it shall be necessary to run a drain across a railroad, the railroad company, when notified by the board to do so, shall make the necessary opening through said road and shall build suitable bridges and culverts and keep them in repair.

Source:

S.L. 1955, ch. 347, § 31; R.C. 1943, 1957 Supp., § 61-2131.

Cross-References.

Drains along and across public roads and railroads, see N.D.C.C. § 61-16.1-42.

Notes to Decisions

Constitutionality.

Expenditures of highway funds for construction and maintenance of bridge or culvert where drain crossed highway did not violate N.D. Const. Art, X, § 11 since fact that bridge or culvert was required because of construction of drain, rather than because of presence of regular watercourse or rough spot in terrain, would not alter fact that such bridge or culvert would be part of highway. Brenna v. Hjelle, 161 N.W.2d 356, 1968 N.D. LEXIS 83 (N.D. 1968).

Cost of Drain.

N.D.C.C. § 61-21-32 does not apply to provisions of this section requiring state highway department to pay expense of running drain across state highway since N.D.C.C. § 61-21-32 applies only to those cases where drain crosses private land or township or county road; since both sections were portions of same legislative enactment, they must be read together and, if possible, meaning should be given to every word, clause and sentence in each enactment. Brenna v. Hjelle, 161 N.W.2d 356, 1968 N.D. LEXIS 83 (N.D. 1968).

Installation of Culvert.

Property owner’s petition for writ of mandamus, compelling a township to install a bigger culvert to aid in drainage, was properly denied because, although better drainage could have been provided, the law did not require perfect drainage, and the court found that the rain event, which the owner claimed demonstrated the drainage problems and the failure to meet the stream crossing standards on his property, was a cataclysmic event, and in excess of a 100-year flood, not a 10-year event as contemplated by the stream crossing standards for a township road. Eichhorn v. Waldo Twp. Bd. of Supervisors, 2006 ND 214, 723 N.W.2d 112, 2006 N.D. LEXIS 207 (N.D. 2006).

DECISIONS UNDER PRIOR LAW

Removal of Bridge.

County drainage board could not compel railroad to remove bridge from nonnavigable stream so that contractor appointed to improve such stream as drain could float his equipment along such stream. State ex rel. Trimble v. Minneapolis St. P. & S. St. M. Ry., 28 N.D. 621, 150 N.W. 463, 1914 N.D. LEXIS 145 (N.D. 1914).

Collateral References.

What constitutes “construction or maintenance” of highways or roads in constitutional provision or statute allowing disbursements from state road fund for that purpose, 36 A.L.R.5th 657.

61-21-32. Construction of bridges and culverts — Cost.

The board shall construct such bridges or culverts over or in connection with a drain as in its judgment may be necessary to furnish passage from one part to another of any private farm or tract of land intersected by such drain. The cost of the construction thereof shall be charged as part of the cost of constructing such drain, and such bridge or passageway shall be maintained under the authority of the board, and the necessary expense thereof shall be deemed a part of the cost of keeping such drain open and in repair. Whenever any bridge or culvert is to be constructed on a county or township highway system over and across or in connection with a drain, and the cost thereof shall exceed five hundred dollars, the cost of constructing such bridge or culvert shall be shared in the following manner: The state water commission may, if funds are available therefor, participate in the portion of the cost thereof that exceeds five hundred dollars in accordance with such rules and regulations as it may prescribe. The remaining cost thereof shall be borne on the basis of forty percent by the county and sixty percent by the water resource district or the drainage district which has created the need for such construction. If, however, moneys have not been made available to the commission for such participation, then and in that case, forty percent of the cost of a bridge or culvert costing in excess of one hundred dollars shall be paid by the county and sixty percent shall be charged as cost of the drain to the drainage district. Whenever any bridge or culvert costing one hundred dollars or less is needed on any such road, the cost of such bridge or culvert shall be charged on the basis of sixty percent to the water resource district or the drainage district and forty percent shall be borne by the township in which such bridge or culvert is located.

In the case of such bridge or culvert construction when there is federal financial participation, if there are costs exceeding the amount of such federal participation then the excess balance shall be borne by the water resource district, drainage district, county, or township, according to the foregoing provisions of this section, as the case may be.

Source:

S.L. 1955, ch. 347, § 32; 1957, ch. 387, § 1; R.C. 1943, 1957 Supp., § 61-2132.

Cross-References.

Construction of bridges and culverts, cost, see N.D.C.C. § 61-16.1-43.

Notes to Decisions

Cost of Drain.

This section does not apply to provisions of N.D.C.C. § 61-21-31 requiring state highway department to pay expense of running drain across state highway but applies only to those cases where drain crosses private land or township or county road; since both sections were portions of same legislative enactment, they must be read together and, if possible, meaning should be given to every word, clause and sentence in each enactment. Brenna v. Hjelle, 161 N.W.2d 356, 1968 N.D. LEXIS 83 (N.D. 1968).

61-21-32.1. Culvert and pipe arch bids and acceptance.

A board may advertise for bids to supply culverts and pipe arches and may accept one or more low bids. A board may utilize bids for such materials received by the county within which the board has jurisdiction and may accept one or more low bids. The board may then purchase materials from the accepted low bidder or bidders for a period of one year from the date of the original acceptance of the bids.

Source:

S.L. 1977, ch. 571, § 2.

Cross-References.

Bids to supply culverts and pipe arches, advertising, acceptance, see N.D.C.C. § 61-16.1-44.

61-21-33. Boards of two or more counties may construct drains through counties.

Whenever it shall be deemed necessary by the boards of two or more counties in this state to construct or extend a drain through or into two or more counties in this state, the several boards in the counties into or through which such proposed drain may extend when completed may establish, construct, and maintain such drain through or into two or more counties in the manner provided in section 61-21-34.

Source:

S.L. 1955, ch. 347, § 33; R.C. 1943, 1957 Supp., § 61-2133.

DECISIONS UNDER PRIOR LAW

Analysis

Canadian Treaty.

Joint action by boards of drain commissioners of two counties in securing drain outlet in Canada was not in violation of treaty between United States and Canada. McHenry County v. Brady, 37 N.D. 59, 163 N.W. 540, 1917 N.D. LEXIS 78 (N.D. 1917).

Collective Consideration of Land.

Tri-county board of drain commissioners did not deal with individual tracts as such, but with county apportionment of benefits, lands in each county being considered collectively. Hackney v. Elliott, 23 N.D. 373, 137 N.W. 433, 1912 N.D. LEXIS 113 (N.D. 1912).

Intercounty Drain Project.

Board of drain commissioners could order drain as part of intercounty drainage project. Northern Pac. Ry. v. Sargent County, 43 N.D. 156, 174 N.W. 811, 1919 N.D. LEXIS 30 (N.D. 1919).

Outlet in Foreign Territory.

Joint boards of drain commissioners could secure outlet in foreign territory for drain established within their district by deepening or widening stream. Freeman v. Trimble, 21 N.D. 1, 129 N.W. 83 (N.D. 1910).

61-21-34. Procedure to construct or extend a drain through or into two or more counties.

In order to construct or extend a drain through or into two or more counties in this state, a petition must be presented to the several boards for the establishment of the drain in their several counties as provided in this chapter. The boards of the counties shall hold a joint meeting and shall determine the necessity or expediency of the establishment of the drain. The several boards of all counties through or into which the proposed drain may run shall agree upon the proportion of damages and benefits to accrue to the lands affected in each county, and for this purpose the boards shall consider the entire course of the drain through all the counties as one drain. Should the boards fail to agree upon the benefits to accrue to the lands in each county, the boards shall submit the points in controversy to the department of water resources, and the department’s decision is final. The boards may apportion the cost of establishing and constructing the entire drain ratably and equitably upon the lands in each county in proportion to the benefits to accrue to the county’s lands. When the boards have apportioned the costs, the boards shall make written reports of the apportionment to the auditors of the several counties affected. The reports must show the portion of cost of the entire drain to be paid by taxes upon the lands in each of the counties and must be signed by the boards of all counties affected. Upon the filing of the reports, the several boards shall meet and assess against the lands in each of the counties, ratably and equitably as provided by this chapter, an amount sufficient to pay the proportion of the cost of the drain in each county. The provisions of this chapter relating to drains within a single county govern the establishment, construction, maintenance, repair, and cleanout of the drains.

Source:

S.L. 1955, ch. 347, § 34; R.C. 1943, 1957 Supp., § 61-2134; 2021, ch. 488, § 168, eff August 1, 2021.

Notes to Decisions

Drainage Channels and Outlets.

There is nothing in N.D.C.C. ch. 61-21 which allows counties to establish drainage outlets or channels in neighboring counties without their consent; therefore, Barnes County water resource district could not establish a multi-county drainage project with outlets or channels in Griggs County without conferring with Griggs County as required by this section. Messer v. State Water Comm'n, 332 N.W.2d 66, 1983 N.D. LEXIS 259 (N.D. 1983).

61-21-35. Settlement of unpaid warrants.

In the event that drain warrants which have been issued pursuant to the establishment of a drain in two or more counties remain unpaid and the amounts realized from the original assessments made are not sufficient to pay said warrants and an additional assessment would be necessary to meet such deficit, the board of county commissioners of any county affected, if such board finds that such county has received benefits from such drain by reasons of public health, convenience, or welfare, as provided by law, and might therefore be liable for assessment or reassessment and that the credit of the county is or might be affected by the existence of such outstanding and unpaid warrants, may negotiate and execute a settlement with the owners of such warrants and pay the amount of such settlement from the general fund of the county.

Source:

S.L. 1957, ch. 386, § 1; R.C. 1943, 1957 Supp., § 61-2135.

61-21-36. Cooperating with drainage boards or officials of other states in drainage matters.

Any board established under the laws of this state, either severally or jointly with other boards, may cooperate with any similar drainage districts or drainage boards in any adjoining state in the establishment of any drainage area or drainage basin for the control of boundary waters between such states.

Source:

S.L. 1955, ch. 347, § 35; R.C. 1943, 1957 Supp., § 61-2136.

61-21-37. Drainage boards or commissioners of different states may meet in joint conference to effectuate cooperation.

In order to effectuate the cooperation provided for in section 61-21-36, any board may:

  1. Meet in joint conference to agree upon joint plans of procedure.
  2. Employ jointly with other similar boards a competent engineer.
  3. Carry into effect the plans and suggestions adopted at any such joint conference in accordance with the laws of this state with reference to the construction of drains and drain improvements.
  4. Assess the costs thereof upon the drainage district or area affected in accordance with the benefits received.

Source:

S.L. 1955, ch. 347, § 36; R.C. 1943, 1957 Supp., § 61-2137.

61-21-38. Proceedings in drainage matters other than establishment and construction of drains — Establishment of lateral drains.

Unless otherwise specified, all proceedings under the provisions of this chapter affecting the rights of persons and property shall be taken in accordance with the procedure governing the establishment and construction of drains in the first instance, except that a petition for the establishment and construction of a lateral drain shall be sufficient if signed by one or more freeholders whose property will be affected by the lateral drain.

Source:

S.L. 1955, ch. 347, § 37; R.C. 1943, 1957 Supp., § 61-2138.

61-21-39. Petition for a lateral drain — Bond of petitioners — Penalty.

  1. All property owners whose property would be affected by a lateral drain may jointly petition the board for the construction of such drain and shall deposit with the board a good and sufficient bond to be approved by the board, conditioned upon the petitioner or petitioners paying all costs of the proposed lateral drain. Whenever improvements of an original drain are made necessary by the construction of a lateral drain, the costs of such improvements to the original drain shall be charged as part of the cost of construction of the lateral drain and assessed against the property benefited thereby and collected as other assessments are collected. In the event that the board shall determine that such improvements to the original drain are also beneficial to property served by the original drain, the board may assess such portion of the cost of the improvements as it shall determine to property benefited by the original drain. Unless the petitioners agree to construct the lateral drain, the board within ten days shall commence proceedings for the construction of such lateral drain according to the provisions of this chapter. No person shall dig or construct any lateral ditch or drain which will conduct the flow of water from any land or lands into any drain constructed under the provisions of this chapter, except the petitioners as provided in this section. In all instances involving the construction of a lateral drain, the board shall estimate and determine the proportionate share of the cost of the main or original drain which should be paid by such petitioners. The petitioners shall pay into the county treasury the amount so determined, and they shall then be allowed to connect such lateral ditches or drains with the original drain under the direction and superintendence of the board, but at their own cost and expense. The money paid into the county treasury shall be credited to the drainage fund of the specific drain involved.
  2. When one or more of the property owners to be benefited by the construction of a lateral drain or ditch petition the board for the construction of a lateral drain or ditch, the board shall then proceed in the same manner as is used for the establishment of a new drain and thereafter such lateral drain shall constitute a part of the original drain to which it is connected and the affected property shall be a part of such drainage district.
  3. Repealed by S.L. 1975, ch. 569, § 4.
  4. Any person violating any of the provisions of this section shall be guilty of a class B misdemeanor.

Source:

S.L. 1955, ch. 347, § 38; 1957, ch. 388, § 1; R.C. 1943, 1957 Supp., § 61-2139; S.L. 1963, ch. 421, § 16; 1975, ch. 106, § 651; 1975, ch. 569, § 4.

Cross-References.

Penalties for classified offenses, see N.D.C.C. § 12.1-32-01.

Petition for lateral drain, see N.D.C.C. § 61-16.1-49.

61-21-40. Collection of tax or assessment levied not to be enjoined or declared void — Exceptions.

The collection of any tax or assessment levied or ordered to be levied to pay for the location and construction of any drain laid out and constructed under the provisions of this chapter shall not be enjoined perpetually or absolutely declared void by reason:

  1. Of any error of any officer or board in the location and establishment thereof;
  2. Of any error or informality appearing in the record of the proceedings by which any drain shall have been located or established; or
  3. Of a lack of any proper conveyance or condemnation of the right of way.

The court in which any proceeding may be brought to reverse or to declare void the proceedings by which any drain has been located or established, or to enjoin the tax levied to pay therefor, on application of either party, shall appoint such person or persons to examine the premises, or to survey the same, or both, as may be deemed necessary. The court, on a final hearing, shall make such order in the premises as shall be just and equitable, and may order such tax or any part thereof to remain on the tax lists for collection, or if the same shall have been paid under protest, shall order the whole or such part thereof as may be just and equitable to be refunded. The costs of such proceedings shall be apportioned among the parties as justice may require.

Source:

S.L. 1955, ch. 347, § 39; R.C. 1943, 1957 Supp., § 61-2140.

Cross-References.

Water resource district project assessments, actions to declare void or enjoin collection, see N.D.C.C. § 61-16.1-32.

DECISIONS UNDER PRIOR LAW

Analysis

Collateral Affair.

Board’s determination of benefits was not open to collateral attack and courts would not inquire into correctness of determination. Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841, 1902 N.D. LEXIS 244 (N.D. 1902).

Delay by Complainant.

Special assessment was not subject to attack for invalidity five years after it was made where complainant had actual notice of construction of drain. Hackney v. Elliott, 23 N.D. 373, 137 N.W. 433, 1912 N.D. LEXIS 113 (N.D. 1912).

Delay in Procuring Deed.

Delay in procuring deed to portion of right-of-way, which was obtained after hearing and review, did not invalidate special assessment. Edwards v. Cass County, 23 N.D. 555, 137 N.W. 580, 1912 N.D. LEXIS 126 (N.D. 1912).

61-21-41. Establishing new drains in location of invalid or abandoned drain.

If any of the proceedings for the location, establishment, or construction of any drain under the provisions of this chapter shall have been enjoined, vacated, set aside, declared void, or voluntarily abandoned by the board, for any reason whatsoever, the board may proceed under the provisions of this chapter to locate, establish, and construct a new drain at substantially the same location as the abandoned or invalid drain. For the purposes of this chapter, a drain that is not maintained shall be considered abandoned. When a new drain is established at substantially the same location, the board shall ascertain the real value of services rendered, moneys expended, and work done under the invalid or abandoned proceedings and the extent to which the same contributes to the construction and completion of the new drain. The board shall then issue warrants in an amount not exceeding the value to the new drain of the work completed on the invalid or abandoned drain and shall deliver such new warrants, pro rata, to the owners or holders of old warrants or bonds issued under the invalid or abandoned drainage proceedings, upon the surrender of such old warrants or bonds by the holder or holders thereof.

Source:

S.L. 1955, ch. 347, § 40; R.C. 1943, 1957 Supp., § 61-2141; S.L. 1981, ch. 632, § 10.

Cross-References.

Establishment of drain at site of abandoned or invalid drain, see N.D.C.C. § 61-16.1-46.

61-21-42. Drain kept open and in repair by board.

All drains that have been constructed in this state except township drains shall be under the charge of the board and it shall be the duty of the board to keep such drains open and in good repair. When a drain is situated in more than one county, the drainage board of each county shall have charge of the maintenance of that portion of the drain located in its county. It shall be the mandatory duty of the board, within the limits of available funds, to clean out and repair any drain when requested to do so by petition of fifty-one percent of the affected landowners. The percentage of affected landowners of record in the treasurer’s office or recorder’s office favoring such cleaning out or repairing shall be determined by the weighted voting method as provided in section 61-21-16.

Source:

S.L. 1955, ch. 347, § 41; R.C. 1943, 1957 Supp., § 61-2142; S.L. 2001, ch. 120, § 1.

Cross-References.

Duty to keep drains open and in repair, see N.D.C.C. § 61-16.1-47.

Notes to Decisions

Creation of Superimposing Drain.

Although drainage board had jurisdiction of two existing drains, proceeding for dissolution of two existing districts into a water management district was not prerequisite to establishment of new, superimposing drain by water management board. Wallegham v. Thompson, 185 N.W.2d 649, 1971 N.D. LEXIS 182 (N.D. 1971).

61-21-43. Assessment of costs of cleaning and repairing drains.

The cost of cleaning out and repairing a drain or a drainage structure constructed by any governmental entity for which no continuing funds for maintenance are available must be assessed pro rata against the lands benefited in the same proportion as the original assessment of the costs in establishing such drain, or in accordance with any reassessment of benefits in instances in which there has been a reassessment of benefits under the provisions of section 61-21-44. If no assessment for construction costs or reassessment of benefits has been made, the board shall make assessments for the cost of cleaning and repairing such drain or drainage structure constructed by any governmental entity for which no continuing funds for maintenance are available after a hearing thereon as prescribed in this chapter in the case of a hearing on the petition for the establishment of a new drain. The governing body of any incorporated city, by agreement with the board, is authorized to contribute to the cost of cleaning out, repairing, and maintaining a drain in excess of the amount assessed under this section, and such excess contribution may be expended for such purposes by the board.

Source:

S.L. 1955, ch. 347, § 42; R.C. 1943, 1957 Supp., § 61-2143; S.L. 1987, ch. 743, § 2.

Cross-References.

Assessment of costs of cleaning and repairing drains, see N.D.C.C. § 61-16.1-48.

61-21-43.1. Removal of obstructions to drain — Notice and hearing — Appeal — Injunction.

If the board determines that an obstruction to a drain, including if the drain is located within a road ditch, has been caused by the negligent act or omission of a landowner or landowner’s tenant, the board shall notify the landowner by registered mail at the landowner’s post office of record. A copy of the notice must also be sent to the tenant, if any. The notice must specify the nature and extent of the obstruction, the opinion of the board as to its cause, and must state that if the obstruction is not removed within the period the board determines, but not less than fifteen days, the board shall procure removal of the obstruction and assess the cost of the removal, 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 upon 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 upon learning of the existence of the obstruction, apply to a court of proper jurisdiction for an injunction prohibiting the landowner or landowner’s tenant to maintain the obstruction. Assessments levied under this section must be collected in the same manner as other assessments authorized by this chapter. 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 accordance with the proportionate responsibility of the landowners. A landowner aggrieved by action of the board under this section may appeal the decision of the board to the district court of the county in which the land is located in accordance with the procedure provided for in section 28-34-01. A hearing as provided for in this section is not a prerequisite to an appeal. If the obstruction is located in a road ditch, the timing and method of removal must be approved by the appropriate road authority before the notice required by this section is given and appropriate construction site protection standards must be followed.

Source:

S.L. 1963, ch. 421, § 17; 1983, ch. 82, § 149; 1989, ch. 83, § 32; 1999, ch. 540, § 3; 2007, ch. 557, § 2.

Cross-References.

Removal of obstructions from drains, procedure, see N.D.C.C. § 61-16.1-51.

Notes to Decisions

Dereliction of Duty.

Where the landowner claimed that his farmland was damaged because neighbors failed to maintain a downstream watercourse, he failed to prove that the county water board was liable for dereliction of duty under N.D.C.C. § 61-21-43.1 by failing to order removal of the alleged obstruction. The board never determined that a drain had been obstructed by the negligent act or omission of a landowner; therefore, it was not required to send a notice to the neighbors. Buchholz v. Barnes County Water Bd., 2008 ND 158, 755 N.W.2d 472, 2008 N.D. LEXIS 156 (N.D. 2008).

61-21-44. Reassessment of benefits.

The board may hold at any time and, upon petition of any affected landowner after a drain has been in existence for at least one year, shall hold a hearing for the purpose of determining the benefits of such drain to each tract of land affected. At least ten days’ notice of such hearing must be given by publication in a newspaper having general circulation in the county and by mailing notice thereof to each owner of land whose assessment is proposed to be raised as determined by the records of the recorder or county treasurer. The provisions of this chapter governing the original determination of benefits and assessment of costs apply to any reassessment of benefits carried out under this section. The board may not be forced to make such reassessment more than once every ten years, nor may any assessment or balance thereof supporting a drainage fund be reduced or impaired by reassessment or otherwise as long as bonds payable out of such fund remain unpaid and moneys are not available in such fund to pay all such bonds in full, with interest.

Source:

S.L. 1955, ch. 347, § 43; R.C. 1943, 1957 Supp., § 61-2144; S.L. 1989, ch. 753, § 2; 2001, ch. 120, § 1.

Cross-References.

Reassessment of benefits of water resource district project, see N.D.C.C. § 61-16.1-26.

61-21-45. Contracts for work of cleaning and repairing drains.

If the cost of any work of cleaning out or repairing any drain, or system of legal drains, if more than one cleaning or repair project is carried on under one contract, does not exceed the amount provided for construction of a public improvement under section 48-01.2-02 in any one year, the work may be done on a day work basis or a contract may be let without being advertised. When the cost of such work exceeds the amount provided for construction of a public improvement under section 48-01.2-02 in any one year, a contract must be let in accordance with chapter 48-01.2. The competitive bid requirement is waived, upon the determination of the board that an emergency situation exists requiring the prompt repair of a project, and a contract may be made for the prompt repair of the project without seeking bids.

Source:

S.L. 1955, ch. 347, § 44; R.C. 1943, 1957 Supp., § 61-2145; S.L. 1963, ch. 421, § 18; 1977, ch. 571, § 5; 1993, ch. 606, § 1; 1995, ch. 443, § 27; 2003, ch. 554, § 2; 2007, ch. 403, § 23.

Cross-References.

Contracts for construction and maintenance of water resource district projects, see N.D.C.C. § 61-16.1-14.

61-21-46. Maximum levy — Accumulation of fund.

  1. The levy in any year for cleaning out and repairing a drain may not exceed four dollars per acre [.40 hectare] on any agricultural lands in the drainage district.
    1. Agricultural lands that carried the highest assessment when the drain was originally established, or received the most benefits under a reassessment of benefits, may be assessed the maximum amount of four dollars per acre [.40 hectare]. The assessment of other agricultural lands in the district must be based upon the proportion that the assessment of benefits at the time of construction or at the time of any reassessment of benefits bears to the assessment of the benefits of the agricultural land assessed the full four dollars per acre [.40 hectare]. Nonagricultural property must be assessed the sum in any one year as the ratio of the benefits under the original assessments or any reassessments bears to the assessment of agricultural land bearing the highest assessment.
    2. Agricultural lands must be assessed uniformly throughout the entire assessed area. Nonagricultural property must be assessed an amount not to exceed two dollars for each five hundred dollars of taxable valuation of the nonagricultural property.
  2. In case the maximum levy or assessment on agricultural and nonagricultural property for any year will not produce an amount sufficient to cover the cost of cleaning out and repairing the drain, the board may accumulate a fund in an amount not exceeding the sum produced by the maximum permissible levy for six years. If the cost of, or obligation for, the cleaning and repair of any drain exceeds the total amount that can be levied by the board in any six-year period, the board shall obtain an affirmative vote of the majority of the landowners as determined by section 61-21-16 before obligating the district for the costs.

Source:

S.L. 1955, ch. 347, § 45; R.C. 1943, 1957 Supp., § 61-2146; S.L. 1961, ch. 384, § 1; 1967, ch. 475, § 1; 1975, ch. 572, § 1; 1977, ch. 571, § 6; 1983, ch. 593, § 88; 1983, ch. 683, § 1; 1985, ch. 681, § 2; 1987, ch. 73, § 40; 1995, ch. 592, § 2; 2007, ch. 556, § 2; 2013, ch. 482, § 6.

61-21-47. Expenditures in excess of maximum levy.

If the cost of maintenance, cleaning out, and repairing any drain shall exceed the amount produced by the maximum levy of four dollars per acre [.40 hectare] in any year, with the amount accumulated in the drainage fund, the board may proceed with such cleaning out and make an additional levy only upon petition of at least sixty-one percent of the affected landowners. The percentage of the affected landowners signing such petition shall be determined in accordance with the weighted voting provisions in section 61-21-16.

Source:

S.L. 1955, ch. 347, § 46; R.C. 1943, 1957 Supp., § 61-2147; S.L. 1999, ch. 50, § 77; 2011, ch. 495, § 1; 2013, ch. 482, § 7.

61-21-48. Reconveyance of land no longer required for drainage purposes.

Whenever land has been acquired for drainage purposes and is no longer required for such use, the board of county commissioners may reconvey such land to the present owner of the adjacent property if such party in payment thereof surrenders all warrants issued in payment of the land or repays the amount of cash paid therefor.

Source:

S.L. 1955, ch. 347, § 47; R.C. 1943, 1957 Supp., § 61-2148.

61-21-49. County may pay share of drainage taxes on tax deed lands.

If lands acquired by the county by tax deed are assessed drainage taxes, the county commissioners shall pay such taxes from general funds if it appears after a due appraisal that the value of the land exceeds the total of the delinquent taxes for which foreclosure proceedings were instituted plus the total drainage tax assessment. If the total of taxes assessed at foreclosure plus drainage taxes exceeds the value of the land, the county shall not pay the drainage assessments but upon sale of such land any excess of the sales price over and above the amount of taxes for which the foreclosure proceedings were instituted shall be paid to the drainage district to the full extent of drainage taxes due. Any income from the property shall be first credited to the general taxes and any surplus income shall be paid to the drainage district to the extent of drainage taxes due.

Source:

S.L. 1955, ch. 347, § 48; R.C. 1943, 1957 Supp., § 61-2149.

61-21-50. Drain warrants — Terms and amounts.

Drain costs must be paid upon order of the board by warrants signed by the chairman and one other member of the board. The warrants are payable from the proper drain fund and, upon maturity, are receivable by the treasurer for drain assessments supporting the fund. The warrants may be issued at any time after the order establishing the drain has become final and after incurring liability to pay for drain work to be financed by drain assessments and in anticipation of levy and collection of the assessments. Every warrant not made payable on demand must specify the date when it becomes payable. Demand warrants not paid for want of funds must be registered by the county treasurer or, if the water resource district treasurer is custodian of the drain funds, the water resource district treasurer and bear interest at a rate determined by the board, not exceeding eight percent per annum. Warrants of specified maturities bear interest according to their provisions at a rate or rates resulting in an average net interest cost not exceeding twelve percent per annum if sold at private sale, and may be issued with interest coupons attached. There is no interest rate ceiling on warrants sold at public sale or to the state of North Dakota or any of its agencies or instrumentalities. All drain warrants must state upon their faces the purpose for which they are issued and the drain fund from which they are payable. The warrants may be used to pay drain obligations, or may be sold at not less than ninety-eight percent of par value, provided that the proceeds of warrants sold are placed in the proper drain fund and used exclusively for drain expenses. Any unpaid warrants issued for the acquisition of right of way or the construction of a drain, including all incidental costs in connection therewith, must be funded by a bond issue within one hundred eighty days from and after the filing of the assessment of all costs with the county auditor as provided in section 61-21-27, but this requirement may not be construed as prohibiting the funding of warrants or the issuance of bonds after the one hundred eighty-day period.

Source:

S.L. 1955, ch. 347, § 49; R.C. 1943, 1957 Supp., § 61-2150; S.L. 1971, ch. 249, § 36; 1981, ch. 269, § 32; 2001, ch. 567, § 4.

61-21-51. Payment of drain assessments — Interest.

Drain assessments may be paid in full or in part at any time after the same have been filed in the office of the county auditor, provided that all such assessments shall bear interest at a rate to be set by the board, which rate shall be not less than the rate payable on warrants or bonds issued for the drain financed by such warrants or bonds. Interest shall be computed from the date of filing the assessment list in the office of the county auditor, or, if bonds are issued for right of way or for construction, extension, or renovation, from the date of first publication of the preliminary bond issue resolution, whichever date is the earlier.

Source:

S.L. 1955, ch. 347, § 50; R.C. 1943, 1957 Supp., § 61-2151.

61-21-52. Lien for and enforcement of drain assessments.

Drain costs determined by the board shall be extended upon the proper assessment list of benefited tracts in specific amounts computed according to the proportionate benefits found for each tract affected by the drain or by work done on the drain. A true copy of every such list affecting lands in a city shall be served on the auditor thereof promptly following completion. The assessment list shall then be filed in the office of the county auditor of the proper county or counties and said auditor shall extend upon the tax lists against the land affected the specific amounts of the drain assessments according to the drain assessment list prepared by the board. From and after the filing of a drain assessment list with the county auditor, the specific amounts levied and assessed against each benefited tract shall constitute a special tax thereon and shall be a lien upon such tract until fully paid. Such lien shall have precedence over all other liens except general tax liens, and shall be of equal rank and order with the lien of general taxes and shall not be divested by any judicial sale, tax sale, or foreclosure. This chapter shall be notice to all subsequent encumbrancers of the superior rank of drain liens imposed under the provisions hereof. Special drain taxes shall be collected and enforced as other taxes are collected and enforced and in the same manner as is provided in title 57. If no satisfaction of tax lien is made, the affected property shall pass absolutely to the board on foreclosure of tax lien provided the board pays the amount for satisfaction of lien, except the amounts of drain assessments, and may thereafter be sold by the board at public sale. The governing body of each city against which a drain assessment is made shall include in the earliest possible tax levy the amount assessed against it by the board, which amount shall be extended against all of the taxable property in such city as general taxes are extended, and such levy shall be over and above mill levy limitations prescribed by law. When the cost of any drain, or of an extension or enlargement or renovation thereof, shall be in such amount that the board finds that assessment of such total cost against the affected property for collection in full in a single payment would be unduly burdensome to such property, the board may determine to divide such cost into equal annual amounts to be assessed and collected over a period of not more than fifteen years. Drain costs and drain assessments shall include all expenditures for work and materials for the drain, including anticipated expenses, interest charges, and a reasonable charge for the establishment of a reserve fund with which the board may from time to time purchase tax delinquent property affected by the drain.

Source:

S.L. 1955, ch. 347, § 51; R.C. 1943, 1957 Supp., § 61-2152; S.L. 1999, ch. 503, § 45.

Cross-References.

Lien and enforcement of water resource district project assessments, see N.D.C.C. §§ 61-16.1-30, 61-16.1-31.

61-21-53. Drain bonds.

The board may issue bonds to finance acquiring drain right of way, locating and constructing drains, and funding unpaid drain warrants heretofore issued, or issued hereafter under this chapter. Drain bonds issued in whole or in part to finance expenditures for which warrants have not been issued shall not be authorized until after firm contracts for projected drain work have been made and proper undertakings therefor have been executed and filed, or until after the drain work has been completed. Proceedings for the issuance of bonds shall be initiated by the adoption of a preliminary resolution of the board which shall include information and findings as follows:

  1. The maximum amount of drain bonds proposed to be issued.
  2. The maximum interest rate such bonds shall bear.
  3. Designation of the calendar years in which such bonds shall mature.
  4. The complete name of the drain for which such bonds are to be issued.
  5. The purpose or purposes for which the proceeds of the bonds will be used, including the total amount of drain warrants to be bought with such proceeds.

When such preliminary resolution has been duly adopted by the board, the board shall proceed to have the text thereof published in a legal newspaper of general circulation in the locality in which the particular drain is situated, and there shall be published with and as a part of such text a statement that from and after the expiration of thirty days next following the date of the first printing of such text, no action may be commenced or maintained, and no defense or counterclaim may be recognized in the courts of this state to question or impair the drain warrants resolved to be funded, or the drain assessments supporting such warrants. There shall also be included in such publication the further statement that a complete list identifying the drain warrants proposed to be funded has been filed in the office of the county auditor of the county or counties in which the affected lands are located. Such publication shall be made once each week for three successive weeks and proper proof thereof shall be filed with the board. The validity and enforceability of any drain warrant or of any assessment supporting the same shall not be vulnerable to attack in the courts of this state unless an appropriate action or proceeding is commenced or a defense or counterclaim is served within thirty days next following the date of first printing of such publication. The board shall prepare and file with the auditor of the proper county or counties a complete list identifying the drain warrants proposed to be funded by such bonds, and such list, or true copies thereof, shall be filed prior to the date of the first printing of said preliminary resolution. Within a reasonable time, and more than thirty days after the first printing of such preliminary resolution, the board may proceed to authorize the preparation and sale of drain bonds in accordance with such resolution. The bonds shall bear interest at a rate or rates resulting in an average net interest cost not to exceed twelve percent per annum on those issues which are sold at private sale. There is no interest rate ceiling on those issues sold at public sale or to the state of North Dakota or any of its agencies or instrumentalities. The bonds shall contain a provision that interest thereon shall cease at maturity unless the holder shall present the same for payment and payment is refused, shall designate the fund from which they are payable, and shall be offered for sale and sold as provided in chapter 21-03, for the offering and sale of general obligation bonds of governmental subdivisions of this state. Wherever drain bonds are issued for drain warrants, the bonds in the appropriate amount may be exchanged for the warrants, but the basis of exchange shall be such that the average net rate of interest on the bonds will not exceed the rate on the warrants refunded. Drain warrants purchased with the proceeds of bonds shall not be canceled but shall be retained by the board as assets of the drain fund from which the warrants are payable. The fund shall be continued and payments therefrom shall be made on the warrants drawn thereon without reference to the bond issue, but all such payments shall be placed in the fund from which the bonds are payable and shall be applied to service such bonds and to pay the interest thereon. Bonds issued by drainage districts shall be eligible for purchase by the various trust funds of the state of North Dakota and its instrumentalities.

Source:

S.L. 1955, ch. 347, § 52; R.C. 1943, 1957 Supp., § 61-2153; S.L. 1971, ch. 249, § 37; 1981, ch. 269, § 33.

DECISIONS UNDER PRIOR LAW

Constitutionality.

Landowners who were assessed for drain benefits were not deprived of their property without due process of law by issuance of interest-bearing bonds to defray cost of constructing drains and postponement of their assessments and divisions thereof into as many parts as bonds had years to run. Erickson v. Cass County, 11 N.D. 494, 92 N.W. 841, 1902 N.D. LEXIS 244 (N.D. 1902).

61-21-54. Sinking funds and bonds.

The board shall establish a sinking fund for each issue of bonds, which fund shall consist of all drain assessments made for the bonds, all warrants funded and all assessments for such warrants, all accrued interest received on sale of bonds, all proceeds of bonds sold not actually expended for the drain, the reserve fund authorized for purchase of tax delinquent lands affected by the drain, all general tax levies for payment of obligations of the drain, and any other moneys which may be appropriated to the sinking fund. Separate sinking funds shall be provided for each separate drain for which bonds shall have been issued. Until the purpose of the sinking fund has been fulfilled, no moneys in any such sinking fund shall be applied to any purpose other than payment of the bonds for which such fund was created.

Source:

S.L. 1955, ch. 347, § 53; R.C. 1943, 1957 Supp., § 61-2154.

61-21-55. Liability for deficiencies — Maintenance of sinking fund.

During the month of June of each year, the board shall prepare a complete statement of the condition of the finances of each drain and shall cause the same to be filed with the county auditor on or before July first next following. At its July meeting next following the filing of each statement of financial condition of any drain, the county board shall examine such statement and determine whether or not any drain has defaulted or will default on its financial obligations. If it appears to the county board that any drain does not have moneys and drain assessments receivable equal to one hundred percent of its obligations coming due within thirteen months next following, the county board shall pay from the county general fund into the sinking fund for drain warrants or bonds or shall proceed to levy a general property tax, the proceeds of which, together with drain moneys on hand and the probable prior yield of drain assessments will amount to one hundred ten percent of the obligations of the drain becoming due during the thirteen months next following. Such tax or payments shall be appropriated to the sinking fund for the drain warrants or bonds, and certificates of indebtedness may be issued against the same as levied. On redemption of all warrants or bonds against any sinking fund, or upon accumulation of moneys in such fund sufficient to redeem all outstanding warrants or bonds, all surplus moneys in such fund shall be payable to the general fund of the county or counties levying general property taxes or making such payments, up to the amounts of such levies or payments.

Source:

S.L. 1955, ch. 347, § 54; R.C. 1943, 1957 Supp., § 61-2155.

61-21-56. Dissolution of drainage district — Return of unexpended assessments.

The owners of property subject to fifty-one percent or more of the liability for maintaining any drain as determined in section 61-21-16 may petition the board for the abandonment and dissolution of such drain. Upon receipt of such petition, the board shall call a public hearing on the petition and if the board finds the number of valid signatures to represent property liable to fifty-one percent or more of the cost of upkeep of such drain, as determined by section 61-21-16, and that such drainage district has no outstanding indebtedness, the board shall then declare such drain to be abandoned and such drainage district to be dissolved, shall record such declaration upon the minutes and publish the same in a newspaper having wide circulation in that county, and shall return all unexpended assessments collected for the maintenance of the drain to the owners of the assessed property on a pro rata basis in proportion with the amount originally assessed. In case the drainage district extends into two or more counties, the board upon receipt of the petition above referred to shall convene in joint session and call the public meeting above provided. When a drain has been abandoned and dissolved, it may then be re-established in whole or in part only in the same way as a new drain is established.

Source:

S.L. 1955, ch. 347, § 55; R.C. 1943, 1957 Supp., § 61-2156; S.L. 1963, ch. 421, § 19.

61-21-57. Penalty for violation of rules and regulations.

If any person shall violate any valid rule or regulation promulgated by the board, that person shall be guilty of an infraction. The board may bring a civil action to recover damages resulting from violations, plus costs of suit, and all sums recovered shall be deposited with the county treasurer to the credit of the proper drain fund.

Source:

S.L. 1955, ch. 347, § 56; R.C. 1943, 1957 Supp., § 61-2157; S.L. 1975, ch. 106, § 652.

Cross-References.

Penalty for infraction, see N.D.C.C. § 12.1-32-01.

61-21-58. Existing obligations and regulations.

The passage of this chapter shall not affect the validity of any valid outstanding warrants, bonds, or other obligations of drainage districts and all sinking funds created for the payment of such obligations shall continue in force until the liquidation of such obligations. All valid rules and regulations promulgated by any board of county commissioners or board of drainage commissioners shall remain in full force and effect until altered or repealed by the board in the county concerned.

Source:

S.L. 1955, ch. 347, § 57; R.C. 1943, 1957 Supp., § 61-2158.

61-21-59. City application for joint drain. [Repealed]

Repealed by omission from this code.

Note.

This section is superseded by N.D.C.C. § 61-26-01.

61-21-60. Hearing on city joint drain. [Repealed]

Repealed by omission from this code.

Note.

This section is superseded by N.D.C.C. § 61-26-02.

61-21-61. Payments for city joint drain. [Repealed]

Repealed by omission from this code.

Note.

This section is superseded by N.D.C.C. § 61-26-03.

61-21-62. Board may apportion assessments for benefits of an established drain against a county or city or any tract of land benefited by an established drain.

Whenever a board discovers or ascertains that the county, a township, or city therein, or that any tract, parcel, or piece of land is being benefited by an established drain and that the county or such township, municipality, tract, piece, or parcel of land was not included in the drainage area assessed for the cost of construction and maintenance of the drain when established, the board shall commence proceedings for reassessment of lands originally assessed for the cost of establishing and constructing such drain and shall apportion and assess the part of the balance remaining unpaid, if any, of the cost of such drain, and the expense of maintenance thereof, which such county, township, or city and each tract of land found benefited thereby should bear.

Before making such reassessment or reapportionment of benefits, the board shall hold a hearing for the purpose of determining the benefits of the drain to the county, such township, or city and to each tract, piece, or parcel of land being benefited. At least ten days’ notice of such hearing shall be given by publication in a newspaper having general circulation in the county and by mailing notice thereof to each owner of land assessed for the cost of construction and maintenance when the drain was established and by mailing such notice to the governing board of the county, township, and municipality and to the owner of each tract, piece, or parcel of land found to be benefited since the establishment of the drain, as determined by the records in the office of the recorder or county treasurer. The provisions of this chapter governing the original determination of benefits and assessment of costs shall apply to the reassessment and assessment of benefits carried out under the provisions of this section.

Source:

S.L. 1959, ch. 407, § 1; 1967, ch. 323, § 271; 2001, ch. 120, § 1.

Notes to Decisions

Determination of Benefits.

The existence and amount of benefits are questions of fact for the water resource board, and the board acted arbitrarily, capriciously, or unreasonably in reapportioning benefits and assessments. Anderson v. Richland County Water Resource Bd., 506 N.W.2d 362, 1993 N.D. LEXIS 167 (N.D. 1993).

Reapportionment of Benefits and Assessments.

The former county water conservation and flood control district board of commissioners, and its successor, the county water resource board, are political subdivisions of the state, not administrative agencies with a limited time to correct orders, and this section clearly states that the water resource board may reapportion benefits and assessments whenever the board discovers or ascertains that land is benefited by an existing drain, and imposes no time limit upon the board. Anderson v. Richland County Water Resource Bd., 506 N.W.2d 362, 1993 N.D. LEXIS 167 (N.D. 1993).

Reassessments.

A vote on whether to build a proposed drain, under N.D.C.C. § 61-21-16, by its terms, does not apply to reassessments for an existing drain. Accordingly, this section does not provide for an owner vote for or against reassessments. Anderson v. Richland County Water Resource Bd., 506 N.W.2d 362, 1993 N.D. LEXIS 167 (N.D. 1993).

61-21-63. Drains having a common outlet may be consolidated.

Whenever one or more drains which have from time to time been constructed empty into a drain that supplies the outlet for waters flowing in all such drains, such drains may by resolution or order of the board, if the cost of construction of such drains has been paid, be consolidated into one drain or drainage system and shall be renumbered and may be renamed.

Source:

S.L. 1959, ch. 407, § 2.

Cross-References.

Consolidation of drains with common outlet, see N.D.C.C. § 61-16.1-50.

61-21-64. Outlets.

Subject to chapter 32-15, a board may, if found necessary, by process of eminent domain acquire land needed for a sufficient outlet for any established drain.

Source:

S.L. 1959, ch. 407, § 3; 2007, ch. 293, § 43.

61-21-65. Consolidation of drainage district or districts into water resource districts.

Upon resolution of the board of county commissioners or the water resource board, or upon the filing with the board of county commissioners of a petition containing the signatures of landowners possessing at least fifteen percent of the voting rights in one or more drainage districts, computed in accordance with section 61-21-16, the board of county commissioners shall set a date for hearing upon the establishment or expansion of a water resource district to include the property contained within the drainage district or districts. The board of county commissioners shall publish notice of the time, place, and purpose of the hearing once each week for two consecutive weeks in a newspaper of general circulation in the county, the second publication to be not less than ten nor more than twenty days before the date set for hearing. In the event special assessments remain outstanding upon any property within a drainage district to be affected by a hearing as provided in this section, the board of county commissioners shall notify by ordinary mail at least ten days before the date set for the hearing all landowners of record subject to the special assessments in accordance with the provisions of section 61-21-66. If, at the time and place set for hearing, a majority of affected landowners computed in accordance with section 61-21-16 shall file written objections, further proceedings shall be discontinued. If such majority does not object, the board of county commissioners shall file with the state water commission a petition signed by a majority of the board and all further proceedings shall thereafter be governed by chapters 61-16 and 61-16.1. Upon the establishment or expansion of a water resource district to include one or more drainage districts, the board of county commissioners shall, by resolution, dissolve the drainage districts and transfer all property of the dissolved districts to the water resource district.

Source:

S.L. 1963, ch. 421, § 20; 1969, ch. 550, § 1; 1981, ch. 91, § 65.

Notes to Decisions

Notice.

Where no prejudice resulted from water management board delivering official notice, pursuant to this section, and printing notice prior to official action of board setting time for hearing, this departure was immaterial to board’s establishment of a new drain. Wallegham v. Thompson, 185 N.W.2d 649, 1971 N.D. LEXIS 182 (N.D. 1971).

61-21-66. Dissolution prohibited when liabilities outstanding — Disposition of assets.

Notwithstanding the provisions of section 61-21-65, no drainage district shall be dissolved if such district has any outstanding warrants, bonds, or other obligations unless the order of the board of county commissioners dissolving such district shall provide for a continuance of assessments upon properties within the dissolved district for the payment of outstanding obligations, or an assumption of such obligations by the newly created district and the spreading of such assessments over properties within the newly created district. All sinking funds created for the payment of such obligations shall be continued in force by the new district until the liquidation of such obligations. Any funds in the treasury of the drainage district shall, upon dissolution under the provisions of section 61-21-65, be transferred to the treasury of the water resource district. Such funds may be expended separately or jointly with other funds on projects or activities of the water resource district which are of specific benefit to property in the dissolved drainage district from whence the funds were transferred or, in the discretion of the board of county commissioners, such funds may be prorated among the properties in the dissolved drainage district and credited to such property in proportion with the amount originally assessed as a credit against subsequent assessments by the water resource district.

Source:

S.L. 1963, ch. 421, § 21.

61-21-67. Closing of noncomplying drain — Notice and hearing — Appeal — Injunction.

If the board determines that a drain, lateral drain, or ditch has been opened or established by a landowner or tenant contrary to this chapter or any rules adopted by the board, the board shall notify the landowner by registered mail at the landowner’s post office of record. A copy of the notice must also be sent to the tenant, if any. 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 the period 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 upon 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 maintaining the drain, lateral drain, or ditch. Assessments levied under this section must be collected in the same manner as other assessments authorized by this chapter. 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 accordance with the proportionate responsibility of the landowners. A landowner aggrieved by action of the board under this section may appeal the decision of the board to the district court of the county in which the land is located in accordance with the procedure provided for in section 28-34-01. A hearing as provided for in this section is not a prerequisite to an appeal.

Source:

S.L. 1975, ch. 569, § 3; 1983, ch. 82, § 150; 1989, ch. 83, § 33; 1999, ch. 540, § 4.

CHAPTER 61-21.1 Water Project Development [Repealed]

Source:

S.L. 1987, ch. 746, § 7; Repealed by 2019, ch. 54, § 13, eff August 1, 2019.

CHAPTER 61-22 Township Projects [Repealed]

[Repealed by S.L. 1963, ch. 421, § 22]

CHAPTER 61-23 Yellowstone River Compact

61-23-01. Ratification of Yellowstone River Compact between the states of Montana, North Dakota, and Wyoming.

The legislative assembly of the state of North Dakota hereby approves and ratifies the compact designated as the “Yellowstone River Pact”, dated at the city of Billings, state of Montana, on the eighth day of December 1950. Signed by I. A. Acker, Einar H. Dahl, and J. J. Walsh as the state representatives of the state of North Dakota on a compact commission between the states of Montana, North Dakota, and Wyoming, which compact is as follows:

Source:

S.L. 1951, ch. 339, § 1; R.C. 1943, 1957 Supp., § 61-2301.

Yellowstone River Compact

The state of Montana, the state of North Dakota, and the state of Wyoming, being moved by consideration of interstate comity, and desiring to remove all causes of present and future controversy between said states and between persons in one and persons in another with respect to the waters of the Yellowstone River and its tributaries, other than waters within or waters which contribute to the flow of streams within the Yellowstone National Park, and desiring to provide for an equitable division and apportionment of such waters, and to encourage the beneficial development and use thereof, acknowledging that in future projects or programs for the regulation, control, and use of water in the Yellowstone River basin the great importance of water for irrigation in the signatory states shall be recognized, have resolved to conclude a compact as authorized under the Act of Congress of the United States of America, approved June 2, 1949 [Public Law 83, 81st Congress, First Session], for the attainment of these purposes, and to that end, through their respective governments, have named as their respective commissioners:

For the state of Montana: Fred E. Buck, A. W. Bradshaw, H. W. Bunston, John Herzog, John M. Jarussi, Ashton Jones, Chris Josephson, A. Wallace Kingsbury, P. F. Leonard, Walter M. McLaughlin, Dave M. Manning, Joseph Muggli, Chester E. Onstad, Ed F. Parriott, R. R. Renne, Keith W. Trout;

For the state of North Dakota: I. A. Acker, Einar H. Dahl, J. J. Walsh;

For the state of Wyoming: L. C. Bishop, Earl T. Bower, J. Harold Cash, Ben F. Cochrane, Ernest J. Goppert, Richard L. Greene, E. C. Gwillim, E. J. Johnson, Lee E. Keith, N. V. Kurtz, Harry L. Littlefield, R. E. McNally, Will G. Metz, Mark M. Partridge, Alonzo R. Shreve, Charles M. Smith, Leonard F. Thornton, M. B. Walker who, after negotiations participated in by R. J. Newell, appointed as the representative of the United States of America, have agreed upon the following articles, to wit:

ARTICLE I

A. Where the name of a state is used in this compact, as a party thereto, it shall be construed to include the individuals, corporations, partnerships, associations, districts, administrative departments, bureaus, political subdivisions, agencies, persons, permittees, appropriators, and all others using, claiming, or in any manner asserting any right to the use of the waters of the Yellowstone River system under the authority of said state.

B. Any individual, corporation, partnership, association, district, administrative department, bureau, political subdivision, agency, person, permittee, or appropriator authorized by or under the laws of a signatory state, and all others using, claiming, or in any manner asserting any right to the use of the waters of the Yellowstone River system under the authority of said state, shall be subject to the terms of this compact. Where the singular is used in this article, it shall be construed to include the plural.

ARTICLE II

A. The state of Montana, the state of North Dakota, and the state of Wyoming are hereinafter designated as “Montana”, “North Dakota”, and “Wyoming”, respectively.

B. The terms “commission” and “Yellowstone River compact commission” mean the agency created as provided herein for the administration of this compact.

C. The term “Yellowstone River basin” means areas in Wyoming, Montana, and North Dakota drained by the Yellowstone River and its tributaries, and includes the area in Montana known as Lake Basin, but excludes those lands lying within Yellowstone National Park.

D. The term “Yellowstone River system” means the Yellowstone River and all of its tributaries, including springs and swamps, from their sources to the mouth of the Yellowstone River near Buford, North Dakota, except those portions thereof which are within or contribute to the flow of streams within the Yellowstone National Park.

E. The term “tributary” means any stream which in a natural state contributes to the flow of the Yellowstone River, including interstate tributaries and tributaries thereof, but excluding those which are within or contribute to the flow of streams within the Yellowstone National Park.

F. The term “interstate tributaries” means the Clarks Fork, Yellowstone River; the Bighorn River (except Little Bighorn River); the Tongue River; and the Powder River, whose confluences with the Yellowstone River are respectively at or near the city (or town) of Laurel, Big Horn, Miles City, and Terry, all in the state of Montana.

G. The terms “divert” and “diversion” mean the taking or removing of water from the Yellowstone River or any tributary thereof when the water so taken or removed is not returned directly into the channel of the Yellowstone River or of the tributary from which it is taken.

H. The term “beneficial use” is herein defined to be that use by which the water supply of a drainage basin is depleted when usefully employed by the activities of man.

I. The term “domestic use” shall mean the use of water by an individual, or by a family unit or household for drinking, cooking, laundering, sanitation, and other personal comforts and necessities; and for the irrigation of a family garden or orchard not exceeding one-half acre in area.

J. The term “stock water use” shall mean the use of water for livestock and poultry.

ARTICLE III

A. It is considered that no commission or administrative body is necessary to administer this compact or divide the waters of the Yellowstone River basin as between the states of Montana and North Dakota. The provisions of this compact, as between the states of Wyoming and Montana, shall be administered by a commission composed of one representative from the state of Wyoming and one representative from the state of Montana, to be selected by the governors of said states as such states may choose, and one representative selected by the director of the United States geological survey or whatever federal agency may succeed to the functions and duties of that agency, to be appointed by the director at the request of the states to sit with the commission and who shall, when present, act as chairman of the commission without vote, except as herein provided.

B. The salaries and necessary expenses of each state representative shall be paid by the respective state; all other expenses incident to the administration of this compact not borne by the United States shall be allocated to and borne one-half by the state of Wyoming and one-half by the state of Montana.

C. In addition to other powers and duties herein conferred upon the commission and the members thereof, the jurisdiction of the commission shall include the collection, correlation, and presentation of factual data, the maintenance of records having a bearing upon the administration of this compact, and recommendations to such states upon matters connected with the administration of this compact, and the commission may employ such services and make such expenditures as reasonable and necessary within the limit of funds provided for that purpose by the respective states, and shall compile a report for each year ending September thirtieth and transmit it to the governors of the signatory states on or before December thirty-first of each year.

D. The secretary of the army; the secretary of the interior; the secretary of agriculture; the chairman, federal power commission; the secretary of commerce, or comparable officers of whatever federal agencies may succeed to the functions and duties of these agencies, and such other federal officers and officers of appropriate agencies of the signatory states having services or data useful or necessary to the compact commission, shall cooperate, ex officio, with the commission in the execution of its duty in the collection, correlation, and publication of records and data necessary for the proper administration of the compact; and these officers may perform such other services related to the compact as may be mutually agreed upon with the commission.

E. The commission shall have power to formulate rules and regulations and to perform any act which they may find necessary to carry out the provisions of this compact, and to amend such rules and regulations. All such rules and regulations shall be filed in the office of the state engineer of each of the signatory states for public inspection.

F. In case of the failure of the representatives of Wyoming and Montana to unanimously agree on any matter necessary to the proper administration of this compact, then the member selected by the director of the United States geological survey shall have the right to vote upon the matters in disagreement and such points of disagreement shall then be decided by a majority vote of the representatives of the states of Wyoming and Montana and said member selected by the director of the United States geological survey, each being entitled to one vote.

G. The commission herein authorized shall have power to sue and be sued in its official capacity in any federal court of the signatory states, and may adopt and use an official seal which shall be judicially noticed.

ARTICLE IV

The commission shall itself, or in conjunction with other responsible agencies, cause to be established, maintained, and operated such suitable water gaging and evaporation stations as it finds necessary in connection with its duties.

ARTICLE V

A. Appropriative rights to the beneficial uses of the water of the Yellowstone River system existing in each signatory state as of January 1, 1950, shall continue to be enjoyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation.

B. Of the unused and unappropriated waters of the interstate tributaries of the Yellowstone River as of January 1, 1950, there is allocated to each signatory state such quantity of that water as shall be necessary to provide supplemental water supplies for the rights described in paragraph A of this article V, such supplemental rights to be acquired and enjoyed in accordance with the laws governing the acquisition and use of water under the doctrine of appropriation, and the remainder of the unused and unappropriated water is allocated to each state for storage or direct diversions for beneficial use on new lands or for other purposes as follows:

  1. Clarks Fork, Yellowstone River
    1. To Wyoming 60% To Montana 40% b. The point of measurement shall be below the last diversion from Clarks Fork above Rock Creek.
  2. Bighorn River (Exclusive of Little Bighorn River)
    1. To Wyoming 80% To Montana 20% b. The point of measurement shall be below the last diversion from the Bighorn River above its junction with the Yellowstone River, and the inflow of the Little Bighorn River shall be excluded from the quantity of water subject to allocation.
  3. Tongue River
    1. To Wyoming 40% To Montana 60% b. The point of measurement shall be below the last diversion from the Tongue River above its junction with the Yellowstone River.
  4. Powder River (Including the Little Powder River)
    1. To Wyoming 42% To Montana 58% b. The point of measurement shall be below the last diversion from the Powder River above its junction with the Yellowstone River.

Click to view

Click to view

Click to view

Click to view

C. The quantity of water subject to the percentage allocations, in paragraph B 1, 2, 3, and 4 of this article V, shall be determined on an annual water year basis measured from October first of any year through September thirtieth of the succeeding year. The quantity to which the percentage factors shall be applied through a given date in any water year shall be, in acre-feet, equal to the algebraic sum of:

1. The total diversions, in acre-feet, above the point of measurement, for irrigation, municipal, and industrial uses in Wyoming and Montana developed after January 1, 1950, during the period from October first to that given date;

2. The net change in storage, in acre-feet, in all reservoirs in Wyoming and Montana above the point of measurement completed subsequent to January 1, 1950, during the period from October first to that given date;

3. The net change in storage, in acre-feet, in existing reservoirs in Wyoming and Montana above the point of measurement, which is used for irrigation, municipal, and industrial purposes developed after January 1, 1950, during the period October first to that given date;

4. The quantity of water, in acre-feet, that passed the point of measurement in the stream during the period from October first to that given date.

D. All existing rights to the beneficial use of waters of the Yellowstone River in the states of Montana and North Dakota, below Intake, Montana, valid under the laws of these states as of January 1, 1950, are hereby recognized and shall be and remain unimpaired by this compact. During the period May first to September thirtieth, inclusive, of each year, lands within Montana and North Dakota shall be entitled to the beneficial use of the flow of waters of the Yellowstone River below Intake, Montana, on a proportionate basis of acreage irrigated. Waters of tributary streams, having their origin in either Montana or North Dakota, situated entirely in said respective states and flowing into the Yellowstone River below Intake, Montana, are allotted to the respective states in which situated.

E. There are hereby excluded from the provisions of this compact:

1. Existing and future domestic and stock water uses of water:

Provided, that the capacity of any reservoir for stock water so excluded shall not exceed 20 acre-feet;

2. Devices and facilities for the control and regulation of surface waters.

F. From time to time the commission shall re-examine the allocations herein made and upon unanimous agreement may recommend modifications therein as are fair, just and equitable, giving consideration among other factors to:

Priorities of water rights;

Acreage irrigated;

Acreage irrigable under existing works; and

Potentially irrigable lands.

ARTICLE VI

Nothing contained in this compact shall be so construed or interpreted as to affect adversely any rights to the use of the waters of Yellowstone River and its tributaries owned by or for Indians, Indian tribes, and their reservations.

ARTICLE VII

A. A lower signatory state shall have the right, by compliance with the laws of an upper signatory state, except as to legislative consent, to file application for and receive permits to appropriate and use any waters in the Yellowstone River system not specifically apportioned to or appropriated by such upper state as provided in article V; and to construct or participate in the construction and use of any dam, storage reservoir, or diversion works in such upper state for the purpose of conserving and regulating water that may be apportioned to or appropriated by the lower state: Provided, that such right is subject to the rights of the upper state to control, regulate, and use the water apportioned to and appropriated by it; and provided further, that should an upper state elect, it may share in the use of any such facilities constructed by a lower state to the extent of its reasonable needs upon assuming or guaranteeing payment of its proportionate share of the cost of the construction, operation, and maintenance. This provision shall apply with equal force and effect to an upper state in the circumstances of the necessity of the acquisition of rights by an upper state in a lower state.

B. Each claim hereafter initiated for an appropriation of water in one signatory state for use in another signatory state shall be filed in the office of the state engineer of the signatory state in which the water is to be diverted, and a duplicate copy of the application or notice shall be filed in the office of the state engineer of the signatory state in which the water is to be used.

C. Appropriations may hereafter be adjudicated in the state in which the water is diverted, and where a portion or all of the lands irrigated are in another signatory state, such adjudications shall be confirmed in that state by the proper authority. Each adjudication is to conform with the laws of the state where the water is diverted and shall be recorded in the county and state where the water is used.

D. The use of water allocated under article V of this compact for projects constructed after the date of this compact by the United States of America or any of its agencies or instrumentalities, shall be charged as a use by the state in which the use is made: Provided, that such use incident to the diversion, impounding, or conveyance of water in one state for use in another shall be charged to such latter state.

ARTICLE VIII

A lower signatory state shall have the right to acquire in an upper state by purchase, or through exercise of the power of eminent domain, such lands, easements, and rights of way for the construction, operation, and maintenance of pumping plants, storage reservoirs, canals, conduits, and appurtenant works as may be required for the enjoyment of the privileges granted herein to such lower state. This provision shall apply with equal force and effect to an upper state in the circumstance of the necessity of the acquisition of rights by an upper state in a lower state.

ARTICLE IX

Should any facilities be constructed by a lower signatory state in an upper signatory state under the provisions of article VII, the construction, operation, repairs, and replacements of such facilities shall be subject to the laws of the upper state. This provision shall apply with equal force and effect to an upper state in the circumstance of the necessity of the acquisition of rights by an upper state in a lower state.

ARTICLE X

No water shall be diverted from the Yellowstone River basin without the unanimous consent of all the signatory states. In the event water from another river basin shall be imported into the Yellowstone River basin or transferred from one tributary basin to another by the United States of America, Montana, North Dakota, or Wyoming, or any of them jointly, the state having the right to the use of such water shall be given proper credit therefor in determining its share of the water apportioned in accordance with article V herein.

ARTICLE XI

The provisions of this compact shall remain in full force and effect until amended in the same manner as it is required to be ratified to become operative as provided in article XV.

ARTICLE XII

This compact may be terminated at any time by unanimous consent of the signatory states, and upon such termination all rights then established hereunder shall continue unimpaired.

ARTICLE XIII

Nothing in this compact shall be construed to limit or prevent any state from instituting or maintaining any action or proceeding, legal or equitable, in any federal court or the United States Supreme Court, for the protection of any right under this compact or the enforcement of any of its provisions.

ARTICLE XIV

The physical and other conditions characteristic of the Yellowstone River and peculiar to the territory drained and served thereby and to the development thereof, have actuated the signatory states in the consummation of this compact, and none of them, nor the United States of America by its consent and approval, concedes thereby the establishment of any general principle or precedent with respect to other interstate streams.

ARTICLE XV

This compact shall become operative when approved by the legislature of each of the signatory states and consented to and approved by the Congress of the United States.

ARTICLE XVI

Nothing in this compact shall be deemed:

  1. To impair or affect the sovereignty or jurisdiction of the United States of America in or over the area of waters affected by such compact, any rights or powers of the United States of America, its agencies, or instrumentalities, in and to the use of the waters of the Yellowstone River basin nor its capacity to acquire rights in and to the use of said waters;
  2. To subject any property of the United States of America, its agencies, or instrumentalities to taxation by any state or subdivision thereof, nor to create an obligation on the part of the United States of America, its agencies, or instrumentalities, by reason of the acquisition, construction, or operation of any property or works of whatsoever kind, to make any payments to any state or political subdivision thereof, state agency, municipality, or entity whatsoever in reimbursement for the loss of taxes; and
  3. To subject any property of the United States of America, its agencies, or instrumentalities, to the laws of any state to an extent other than the extent to which these laws would apply without regard to the compact.

ARTICLE XVII

Should a court of competent jurisdiction hold any part of this compact to be contrary to the constitution of any signatory state or of the United States of America, all other severable provisions of this compact shall continue in full force and effect.

ARTICLE XVIII

No sentence, phrase, or clause in this compact or in any provision thereof, shall be construed or interpreted to divest any signatory state or any of the agencies or officers of such states of the jurisdiction of the water of each state as apportioned in this compact.

In Witness Whereof the commissioners have signed this compact in quadruplicate original, one of which shall be filed in the archives of the department of state of the United States of America and shall be deemed the authoritative original, and of which a duly certified copy shall be forwarded to the governor of each signatory state.

Done at the city of Billings in the state of Montana, this 8th day of December, in the year of our Lord, one thousand nine hundred and fifty.

Commissioners for the state of Montana:

Fred E. Buck, A. W. Bradshaw, H. W. Bunston, John Herzog, John M. Jarussi, Ashton Jones, Chris Josephson, A. Wallace Kingsbury, P. F. Leonard, Walter M. McLaughlin, Dave M. Manning, Joseph Muggli, Chester E. Onstad, Ed F. Parriott, R. R. Renne, Keith W. Trout.

Commissioners for the state of North Dakota:

I. A. Acker, Einar H. Dahl, J. J. Walsh.

Commissioners for the state of Wyoming:

L. C. Bishop, Earl T. Bower, J. Harold Cash, Ben F. Cochrane, Ernest J. Goppert, Richard L. Greene, E. C. Gwillim, E. J. Johnson, Lee E. Keith, N. V. Kurtz, Harry L. Littlefield, R. E. McNally, Will G. Metz, Mark M. Partridge, Alonzo R. Shreve, Charles M. Smith, Leonard F. Thornton, M. B. Walker.

“I have participated in the negotiation of this compact and intend to report favorably thereon to the Congress of the United States.

R. J. Newell,Representative of the United States of America”

Click to view

Law Reviews.

The Nature and Extent of Rights in Water in North Dakota, Robert E. Beck and John C. Hart, 51 N.D. L. Rev. 249 (1975).

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

61-23-02. Compact not binding until approved by other states and the Congress of the United States — Governor to give notice of ratification.

Said compact shall not be binding or obligatory upon any of the high contracting parties thereto unless and until the same shall have been approved by the legislature of each of the said states and by the Congress of the United States. The governor of North Dakota shall give notice of the ratification and approval of said compact by the thirty-second legislative assembly of the state of North Dakota to the governors of each of the remaining signatory states and to the president of the United States.

Source:

S.L. 1951, ch. 339, § 2; R.C. 1943, 1957 Supp., § 61-2302.

CHAPTER 61-24 Garrison Diversion Conservancy District

61-24-01. Development and utilization of land and water resources declared a public purpose — Declaration of intention — Interpretation.

It is hereby declared that more effective development and utilization of the land and water resources of this state, protection and preservation of the benefits therefrom, opportunity for greater economic security, protection of health, property and enterprise, and the promotion of the prosperity and general welfare of all of the people of North Dakota involve, necessitate, and require the exercise of the sovereign powers of the state and concern a public purpose, the accomplishment of which, among other things, demands, and it is hereby declared necessary, that the Garrison diversion unit of the Missouri River basin project as authorized by Act of Congress approved December 22, 1944 [58 Stat. 887], and acts amendatory thereof and supplementary thereto, be established and constructed:

  1. To provide for the future economic welfare and prosperity of the people of this state, and particularly of the people residing in the area embraced within the boundaries of the conservancy district created by this chapter.
  2. To provide for the irrigation of lands within the sections of such district periodically afflicted with drought, and to stabilize the production of crops thereon.
  3. To replenish and restore the depleted waters of lakes, the Red, Sheyenne, James, and other rivers, and streams in the district, and to stabilize the flow of these streams.
  4. To replenish the waters, and to restore the level of Devils Lake, Stump Lake, Lake Williams, and Turtle Lake.
  5. To make available within the district, or outside the district to the extent authorized by a joint powers agreement under chapter 54-40.3, waters diverted from the Missouri River for irrigation, domestic, municipal, and industrial needs, and for hydroelectric power, recreation, fish, wildlife, and other beneficial and public uses.
  6. To study and provide for the water needs of eastern North Dakota communities and water districts and western Minnesota communities through a Red River valley water supply project.

The provisions hereof shall not be construed to, in any manner, abrogate or limit the rights, powers, duties, and functions of the state water commission, but shall be held to be supplementary thereto and an aid thereof. Nor shall this chapter be construed as limiting or in any way affecting the laws of this state relating to the organization and maintenance of irrigation districts, flood irrigation districts, water resource districts, drainage districts, or watershed protection districts, nor as precluding the establishment of any such district wholly or in part within the boundaries of the district created by this chapter.

Source:

S.L. 1955, ch. 348, § 1; R.C. 1943, 1957 Supp., § 61-2401; S.L. 1991, ch. 702, § 1; 2009, ch. 599, § 1.

Notes to Decisions

Constitutionality.

The provisions of this chapter do not comprise an unconstitutional delegation of legislative power, nor do they violate the due process clause of either the constitution of the United States or the constitution of North Dakota. In re Garrison Diversion Conservancy Dist., 144 N.W.2d 82, 1966 N.D. LEXIS 161 (N.D. 1966).

Devils Lake.

Action by an owner of land, bordering on Devils Lake, to enjoin the state and its agencies from artificially raising level of such lake was dismissed, plaintiff having failed to sustain burden of proving that threatened proceedings would result in flooding of his land, title to which he had acquired through reliction, and that ordinary high-water level of such lake was its present level of 1,419 feet above mean sea level and defendants having failed to prove existence of an ordinary high-water level of lake in excess of 1,419 feet above normal sea level, having asserted that ordinary high-water mark of such lake was 1,425 feet above normal sea level. Rutten v. State, 93 N.W.2d 796, 1958 N.D. LEXIS 106 (N.D. 1958).

Law Reviews.

An Analysis of the Scope of the Final Environmental Impact Statement on the Garrison Diversion Unit Project: Applying a Totality of Circumstances Test, 53 N.D. L. Rev. 427 (1977).

A Primer on the Boundary Waters Treaty and the International Joint Commission, 51 N.D. L. Rev. 493 (1975).

Selected Environmental Law Aspects of the Garrison Diversion Project, 50 N.D. L. Rev. 329 (1974).

61-24-02. Garrison Diversion Conservancy District created.

The “Garrison Diversion Conservancy District”, hereinafter referred to as the “district” consists of that part of the state that is included within the boundaries of the following counties: Barnes, Benson, Bottineau, Burleigh, Cass, Dickey, Eddy, Foster, Grand Forks, Griggs, LaMoure, McHenry, McKenzie, McLean, Nelson, Pierce, Ramsey, Ransom, Renville, Richland, Sargent, Sheridan, Steele, Stutsman, Traill, Ward, Wells, and Williams.

The district is a governmental agency, body politic and corporate with the authority to exercise the powers specified in this chapter, or which may be reasonably implied.

Any county may join the district upon application of its board of county commissioners and the approval of the application by the board of directors of the district.

Source:

S.L. 1955, ch. 348, § 2; R.C. 1943, 1957 Supp., § 61-2402; S.L. 1991, ch. 702, § 2; 2015, ch. 439, § 102, eff January 1, 2015; 2015, ch. 62, § 17, eff August 1, 2015.

Cross-References.

Audit of district and board, see N.D.C.C. § 54-10-14.

State ownership of islands and accumulations of land in navigable waters, provisions inapplicable within district, see N.D.C.C. § 47-06-08.

61-24-03. Election of directors of the Garrison Diversion Conservancy District.

A director of the Garrison Diversion Conservancy District must be nominated and elected in each county in the district. Any person who is a resident and qualified elector of the county who aspires to the office of director of the Garrison Diversion Conservancy District shall, before four p.m. of the sixty-fourth day before any primary election preceding a general election at which a director of the district is to be elected, present to the county auditor a petition giving that person’s name, post-office address, the title of the office “Director of the Garrison Diversion Conservancy District”, and containing the signatures of not less than fifty nor more than three hundred qualified electors of the county to which each signer has added the signer’s residence with street number, if any, and the date of signing.

The petition must be accompanied by an affidavit substantially as follows:

State of North Dakota County of ss. I, , being sworn, say that I reside in the county of and State of North Dakota; that I am a qualified elector therein; that I am a candidate for nomination to the office of director of the Garrison Diversion Conservancy District to be chosen at the primary election to be held on , , and I request that my name be printed upon the no-party primary election ballot as provided by law, as a candidate for the office. Subscribed and sworn to before me on , . Notary Public

Click to view

Upon receipt of the petition, the county auditor shall without fee place the name of the aspirant on the no-party primary election ballot as a candidate for the aforesaid office of director. The two candidates receiving the highest number of votes if more than two are running are nominated.

The names of the candidates so nominated at the primary election must be placed on the no-party ballot at the ensuing general election and the candidate receiving the highest number of votes is elected.

At the primary and general elections, votes must be canvassed, returned certified, and certificates of nomination and election issued in the manner provided by law for the nomination and election of county officers.

Source:

S.L. 1959, ch. 412, § 1; 1977, ch. 572, § 1; 1983, ch. 684, § 1; 1985, ch. 235, § 124; 1987, ch. 242, § 21; 1999, ch. 51, § 40; 2013, ch. 176, § 27.

61-24-03.1. Filling vacancy of director on general election ballot.

Whenever a vacancy exists on a general election no-party ballot for any directorship of the Garrison Diversion Conservancy District, the vacancy may be filled by filing with the county auditor at least sixty-four days before the day of the election and not later than four p.m. of that day a petition substantially in the form provided in section 61-24-03, stating that the petitioner desires to become a candidate for election to the office of director. This petition must contain the signatures of not less than fifty qualified electors of the county, unless there were at least fifty write-in or sticker votes for the petitioner cast in the no-party primary election for the office.

A vacancy in the no-party ballot is deemed to exist when no candidate is nominated at the primary election or when a candidate nominated at the primary dies, resigns, or otherwise becomes disqualified to have that person’s name printed on the ballot at the general election.

Source:

S.L. 1961, ch. 375, § 1; 1991, ch. 703, § 1; 2015, ch. 162, § 10, eff August 1, 2015.

61-24-04. Compensation of directors.

Each member of the board of directors of the district is entitled to receive as compensation from the district an amount determined by the board of directors not to exceed the amount provided for members of the legislative management under section 54-35-10 per day and must be reimbursed for the member’s expenses in the amounts provided in sections 44-08-04 and 54-06-09 while attending meetings of the board or otherwise engaged in the official business of the district.

Source:

S.L. 1955, ch. 348, § 4; R.C. 1943, 1957 Supp., § 61-2404; S.L. 1971, ch. 591, § 1; 1997, ch. 432, § 34; 2003, ch. 559, § 1; 2009, ch. 482, § 93.

61-24-05. Term of office of directors — Oath of office — Bonds.

Each member of the board of directors of the district shall hold office for a term of three years, and until the successor in office has been appointed and qualified, provided, that one-third of the board first appointed shall hold office for a term of three years, one-third for a term of two years, and the other directors shall hold office for a term of one year, from the first day of July next following the date of their appointment. Before assuming the duties of the office, each director shall take and subscribe the oath of office prescribed by law for civil officers. The district treasurer shall be bonded in such amount as the board may prescribe.

A member of the board of directors of the district elected in 1960 and thereafter shall hold office for a term of four years and until a successor has been duly elected and qualifies, but one-half of the directors elected at the general election in 1960 shall hold office for a term of two years, and one-half shall hold office for four years. Terms of office of directors elected at the first election shall be determined by lot. Directors elected after 1960 shall hold office for a term of four years. If the office of any director shall become vacant by reason of the failure of any director elected at any election to qualify or for any other reason, the successor shall be appointed to fill the vacancy by the board of county commissioners of the county in which the vacancy occurs. A director appointed to fill a vacancy shall hold office for the unexpired term of the director whose office has become vacant. A director shall, however, hold office until a successor has been elected and qualifies.

Members of the board of directors elected in 1960 shall assume office on the first Monday in January 1961 and shall replace all members of the board previously appointed. They shall meet at a time and place designated by the secretary of the replaced board of directors, and if that secretary is unable to act, by the secretary of the state water commission, and shall organize in the same manner as the first board of directors was organized. The secretary of the replaced board and any other person employed by that board shall continue in their positions until the new board shall otherwise provide.

Source:

S.L. 1955, ch. 348, § 5; R.C. 1943, 1957 Supp., § 61-2405; S.L. 1959, ch. 412, § 2.

Cross-References.

Bonds of public officers, see N.D.C.C. §§ 44-01-07 to 44-01-12.

Oath required of civil officers, see N.D. Const., art. XI, § 4; N.D.C.C. § 44-01-05.

61-24-06. Meetings of the board — Quorum — Board to adopt rules, regulations, and bylaws.

The board of directors of the district shall adopt such rules and regulations and bylaws for the conduct of the business affairs of the district as the board deems necessary, including the time and place of regular meetings of the board. The board shall elect from its number a chairman and vice chairman. The board shall also elect a secretary and a treasurer, which offices may be held by the same person, and either or both offices may be held by someone not a member of the board. Special meetings may be called by the secretary on order of the chairman of the board or upon the written request of the majority of the qualified members of the board. Notice of a special meeting shall be mailed to each member of the board at least six days before such meetings, provided, that a special meeting may be held at any time when all members of the board are present or consent thereto in writing. A majority of the members of the board of directors shall constitute a quorum for the transaction of business, but any number may adjourn the meeting for want of a quorum.

Source:

S.L. 1955, ch. 348, § 6; R.C. 1943, 1957 Supp., § 61-2406; S.L. 1963, ch. 422, § 1.

Cross-References.

Meetings of governmental boards to be open to public, see N.D.C.C. §§ 44-04-19 to 44-04-21.

Procedure for adoption of administrative rules, see N.D.C.C. §§ 28-32-02 to 28-32-14.

61-24-07. Attorney general shall act as legal adviser — Department of water resources to assist board — Employment of counsel and engineers.

The attorney general shall act as the legal adviser of the board to the extent the duties of the attorney general permit. The department of water resources shall furnish engineering services and assistance to the extent the duties of the department permit. When the district has funds available, the board of directors may employ other counsel to advise and represent the board in the board’s proceedings and affairs, and may employ other engineers and engineering services in connection with the board’s work and the affairs of the district.

Source:

S.L. 1955, ch. 348, § 7; R.C. 1943, 1957 Supp., § 61-2407; 2021, ch. 488, § 169, eff August 1, 2021.

Cross-References.

State engineer as chief engineer of water commission, see N.D.C.C. § 61-03-01.

61-24-08. Powers and duties of the district board of directors.

The board of directors of the Garrison Diversion Conservancy District shall have the power:

  1. To sue and be sued in the name of the district.
  2. To exercise the power of eminent domain in the manner provided by title 32 for the purpose of acquiring and securing any right, title, interest, estate, or easement necessary to carry out the duties imposed by this chapter, and particularly to acquire the necessary rights in land for the construction of dams, reservoirs, canals, hydroplants, irrigation systems, pipelines, and any other device for the conservation, storage, and use of water, and to secure the right of access to such works and the right of the public access to the waters impounding thereby or emanating therefrom.
  3. To accept funds, property, and services or other assistance, financial or otherwise, from federal, state, and other public or private sources for the purpose of aiding and promoting the construction, maintenance, and operation of the Garrison diversion unit, or any part thereof.
  4. To cooperate and contract with the state, its agencies, or its political subdivisions, or any agency of the United States, in research and investigation or other activities promoting the establishment, construction, development, or operation of the Garrison diversion unit, or any part thereof.
  5. To furnish assurances of cooperation and as principal and guarantor or either to enter into a contract, or contracts, with the United States of America, or any department or agency thereof, and with public corporations of North Dakota for the performance of obligations entered into with the United States for the construction, operation, or maintenance of works of the Garrison diversion unit of the Missouri River basin project as defined by Act of Congress, approved December 22, 1944 [58 Stat. 887], and acts amendatory thereof or supplementary thereto.
  6. To construct separately or in cooperation with agencies of the United States, or the state of North Dakota, its agencies or political subdivisions, and to equip, maintain, and operate an office and principal place of business for the district, or other buildings or facilities to carry out activities authorized by this chapter.
  7. To appoint and fix the compensation of such employees as the board shall deem necessary to conduct the business and affairs of the district.
  8. To appoint from its number an executive committee and vest the same with such powers and duties as the board may from time to time delegate thereto, in order to facilitate the duties and work of the board in connection with the business affairs involved in the development, construction, operation, and maintenance of the Garrison diversion unit, or any part thereof.
  9. In 1961 and each year thereafter to levy a tax of not to exceed one mill annually on each dollar of taxable valuation in the district for the payment of the expenses of the district, including, but not limited to, per diem, mileage and other expenses of directors, technical, administrative, clerical, operating and other expenses of the district office, and for the cumulation of a continuing fund through such levy for the performance of obligations entered into with the United States of America in connection with the construction, operation, and maintenance of works of the said Garrison diversion unit of the Missouri River basin project. All moneys collected pursuant to such levy shall be deposited in the Bank of North Dakota to the credit of the district and shall be disbursed only as herein provided. The board may invest any funds on hand, not needed for immediate disbursement or which are held in reserve for future payments, in bonds of the United States, bonds and mortgages or other securities the payment of which is guaranteed by the United States or an instrumentality or agency thereof, or bonds or certificates of indebtedness of the state of North Dakota or any of its political subdivisions. The amount which may be levied in any one year for operating the district prior to authorization by Congress of the Garrison diversion project shall not exceed ten percent of the maximum permissible.
  10. To enter into a contract or contracts for a supply of water from the United States and to sell, lease, and otherwise contract to furnish any such water for beneficial use to irrigation districts, persons, other public and private corporations, or limited liability companies within or outside the district.
  11. To operate and maintain or to contract for the operation and maintenance of water supply and irrigation works serving lands and uses within or outside the district, and in connection therewith, to maintain a reserve fund to meet major unforeseen costs of operation and maintenance. The acquisition, construction, operation, and maintenance of dams, reservoirs, ground water storage areas, canals, conduits, pipelines, tunnels, and any other plants, works, facilities, improvements, or property necessary to operate or maintain water supply or irrigation works under this section are exempt from any requirements for voter approval.
  12. To accept, on behalf of the district, appointment of the district as fiscal agent of the United States and authorization to make collections of money for and on behalf of the United States in connection with the Garrison diversion unit.
  13. To use navigable lakes and streams within the conservancy district for holding, impounding, and conveying water of the Garrison diversion unit.
  14. To provide administrative aid and assistance in the relocation of buildings and the replacement of land to persons affected by the Garrison diversion development in an effort to make certain that such persons are treated fairly and that they do not suffer financial hardship due to the development of the Garrison diversion unit.
  15. To sell or exchange any and all real property purchased or acquired by the district. All moneys received pursuant to any such sale or exchange shall be deposited in the Bank of North Dakota to the credit of the district and may be disbursed only for the payment of expenses of the district as specified in subsection 9.
  16. To borrow money as is provided in this chapter.
  17. To issue and sell revenue bonds to finance projects in an amount or amounts determined by the board, including an amount for costs of issuance and financing, and any necessary reserve funds, for the purpose of financing the cost of constructing a project, purchasing bulk water, or otherwise making capital payments required under a water purchase contract.
  18. To utilize some or all proceeds of its revenue bonds to acquire, construct, reconstruct, or improve one or more projects, or any feasibility study or preliminary economic, engineering, or legal work relating to any project.
  19. To refund and refinance its bonds from time to time as often as it is advantageous and in the interest of the district.
  20. To pledge any and all income, profits, and revenues received by the district in connection with the operation, lease, sale, or other disposition of all or any part of a water project to secure the payment of bonds issued and sold to finance the project or otherwise. Tangible real or personal nonrevenue property of the district may not be liable to be forfeited or taken in payment of any bonds issued under this chapter and debt on the general credit of the district may not be incurred in any manner for payment of bonds under this chapter.
  21. To prescribe, revise, and collect rates, fees, tolls, or charges for the services, facilities, or commodities furnished by the district and in anticipation of the collection of the revenues of the district, issue revenue bonds to finance all or part of the costs of the acquisition, construction, reconstruction, improvement, betterment, extension, operation, or maintenance of a project.
  22. To pledge district revenues, grants, and any other project-related payments to the punctual payment of principal and interest on bonds or water purchase contract obligations. A pledge under this subsection applies to the revenues of improvements, betterments, or extensions of the district which may be constructed or acquired after the issuance of bonds, the revenues of existing systems, plants, works, instrumentalities, and properties of any part of the district improved, bettered, or extended, and the revenues received from payments made under water sale contracts between the district and persons that contract to purchase water from the district.
  23. To make all contracts, execute all instruments, and do all things necessary or convenient in the exercise of its powers or in the performance of its covenants or duties or in order to secure the payment of its bonds, but an encumbrance, mortgage, or other pledge of tangible real or personal nonrevenue property of the district may not be created by any such contract or instrument.
  24. To accept from any authorized federal agency loans or grants for the planning, construction, acquisition, lease, or other provision of a project, and to enter agreements with the agency respecting the loan or grants.
  25. To contract debts and borrow money and provide for payment of debts and expenses of the district.
  26. To distribute water to western Minnesota cities that enter water service contracts for water.
  27. To enter water service contracts with municipalities, water districts, or other political subdivisions in this state and public utilities in Minnesota as part of the Red River valley water supply project, regardless of whether the acquisition, construction, or reconstruction of any Red River valley water supply project is actually completed and whether water actually is delivered under the contracts. These contracts with cities and water districts are authorized to be executed without limitation on term of years and, if the contracts are executed in relation to the initial construction of the system, without voter approval.

Source:

S.L. 1955, ch. 348, § 8; R.C. 1943, 1957 Supp., § 61-2408; S.L. 1959, ch. 412, § 3; 1961, ch. 385, § 1; 1963, ch. 422, § 2; 1967, ch. 476, § 2; 1969, ch. 551, §§ 1, 2; 1975, ch. 573, § 1; 1977, ch. 572, § 2; 1993, ch. 54, § 106; 2009, ch. 599, § 2; 2019, ch. 512, §§ 2, 3, eff August 1, 2019.

Cross-References.

Eminent domain, see N.D.C.C. ch. 32-15.

Employees of district to participate in public employees’ retirement system, see N.D.C.C. § 54-52-02.

Notes to Decisions

Governmental Agency.

Since directors of Garrison Diversion Conservancy District are elected by people of several counties within district, they constitute a body politic and corporate; as governmental agency established for public purpose, district has same power to exercise eminent domain as state itself, and authority to levy taxes within limits prescribed by legislature. In re Garrison Diversion Conservancy Dist., 144 N.W.2d 82, 1966 N.D. LEXIS 161 (N.D. 1966).

61-24-09. District budget — Determination of amount to be levied — Adoption of levy — Limitation.

In July of each year, the board of directors shall estimate and itemize all the expenses and obligations of the district, including expenses of directors, expenses of operating the office, debt service and retirement, and obligations and liabilities to the United States for which provision must be made. The board of directors may include in such budget funds deemed necessary to create reserve funds to meet future payments under district contracts. Upon the completion and adoption of such budget, the board of directors shall make a tax levy in an amount sufficient to meet such budget. Such levy shall be in the form of a resolution, adopted by a majority vote of the members of the board of directors of the district. Such resolution shall levy in mills, but not exceeding one mill, sufficient to meet all the expenses, obligations, and liabilities of the district as provided in the budget.

Source:

S.L. 1955, ch. 348, § 9; R.C. 1943, 1957 Supp., § 61-2409; S.L. 1959, ch. 412, § 4; 1963, ch. 422, § 3.

Cross-References.

Tax levy by district board, see N.D.C.C. § 57-15-26.8.

61-24-10. Certified copies of levy and budget sent to county auditors.

Immediately after completion of the budget and the adoption of the annual tax levy by the board of directors of the district, but not later than October first, the secretary of the district shall send one certified copy of the levy as adopted and one certified copy of the budget to the county auditor of each county in the district.

Source:

S.L. 1955, ch. 348, § 10; R.C. 1943, 1957 Supp., § 61-2410; S.L. 1993, ch. 408, § 7; 2001, ch. 122, § 10.

61-24-11. County auditors to extend tax levy.

The county auditor of each county in the district shall extend the levy upon the tax list of the county for the current year against each description of real property and all personal property within the county in the same manner and with the same effect as other taxes are extended.

Source:

S.L. 1955, ch. 348, § 11; R.C. 1943, 1957 Supp., § 61-2411.

61-24-12. County treasurers to collect and remit district taxes.

The treasurer of each county in the district shall collect all district taxes, together with interest and penalty thereon, if any, in the same manner as the general taxes are collected, and shall pay over to the treasurer of the Garrison Diversion Conservancy District, on the first day of each month, on demand, all taxes so collected during the preceding month, with interest and penalties collected thereon, and forthwith shall notify the secretary of the district of such payment.

Source:

S.L. 1955, ch. 348, § 12; R.C. 1943, 1957 Supp., § 61-2412.

61-24-13. District may enter into contract for the construction, operation, and maintenance of works.

When the board of directors of the Garrison Diversion Conservancy District is notified by the United States, or by any department or agency thereof, that it is necessary for the district to enter into a contract as principal and guarantor or either, for the repayment of any part of the cost incurred, or to be incurred in the construction, operation, and maintenance of works of the Garrison diversion unit of the Missouri River basin project, the board shall give notice of hearing on such proposed contract as herein provided. Hearings on such contract shall be conducted in at least three places in the district by a contract hearing committee composed of at least three director members of the board as designated by the board. Notice of the time and place of such hearings shall be published at least ten days before such hearing in not less than three newspapers of general circulation in the district. Anyone interested in, or affected by such contract if entered into, may appear at any such hearing and show cause, if any, why such proposed contract should or should not be approved. The contract hearing committee shall submit its report, including support and objections to the contract, and its recommendations to the board for final action. After considering the terms and conditions of such proposed contract and the report and recommendations of the contract hearing committee, the board shall adopt a resolution approving or disapproving such contract. If disapproved, the board may enter into further negotiations with the United States concerning terms for a new or amended contract. At least thirty days before any hearing is held on such contract for construction of facilities or works, plans therefor shall be filed with the secretary of the district and shall be open to public inspection.

Source:

S.L. 1955, ch. 348, § 13; R.C. 1943, 1957 Supp., § 61-2413; S.L. 1969, ch. 552, § 1.

61-24-14. When contract is approved.

After any such contract shall have been duly executed, as herein provided, the board of directors shall, in accordance with the provisions of such contract, adopt a resolution that a tax be assessed and levied upon all the taxable property in the district. Such tax shall be within the limitation herein provided and shall be levied annually on each dollar of the taxable valuation in the district until the contract obligations have been paid, or a sufficient fund has been accumulated to pay the same. The resolution shall state the purpose of such levy and the amount thereof. A certified copy thereof shall be mailed to the county auditor of each county in the district. Upon the receipt of such resolution or as soon thereafter as county levies are made, such county auditor shall spread the levy specified in such resolution for the current year and annually thereafter as required by such resolution.

Source:

S.L. 1955, ch. 348, § 14; R.C. 1943, 1957 Supp., § 61-2414.

61-24-15. Proceedings to confirm contract.

The board of directors of the Garrison Diversion Conservancy District, after entering into a contract with the United States government or with any public corporation of the state of North Dakota, may commence a special proceeding in and by which the proceedings of the board and the making of such contract, or contracts, shall be judicially examined, approved, and confirmed, or disapproved and disaffirmed. Such proceeding shall comply as nearly as possible with the procedure required in the case of irrigation districts under the laws of North Dakota.

Source:

S.L. 1955, ch. 348, § 15; R.C. 1943, 1957 Supp., § 61-2415.

Cross-References.

Procedure for judicial confirmation of irrigation district contracts, see N.D.C.C. §§ 61-07-22 to 61-07-27.

61-24-16. County may be excluded from conservancy district if not benefited.

  1. Any county in the conservancy district not benefited or not to be benefited, in whole or in part, by the establishment of the Garrison diversion unit of the Missouri River basin project as authorized by Act of Congress, approved December 22, 1944 [58 Stat. 887], and acts amendatory thereof or supplementary thereto, may be excluded from the district as provided herein. The board of county commissioners of any such county may by resolution direct the county auditor and the chairman of the board to file with the board of directors of the conservancy district a petition, for and on behalf of the county, requesting the board of directors of the district to exclude such county therefrom. A certified copy of the resolution of the county board shall accompany and be filed with such petition. The petition and resolution shall state specific reasons why such county will not be benefited by the establishment and development of the Garrison diversion unit.
  2. Within sixty days from the date of filing said resolution and petition for exclusion from the district, the district board shall meet to consider such petition. It may grant such petition or it may fix a time and place for a hearing thereon. If a hearing be set, the secretary of the board shall cause notice of the filing of such petition for exclusion, and of the time and place for a hearing, to be published once each week for two consecutive weeks in a newspaper of general circulation printed in the district. The hearing mentioned in such notice shall be held not less than ten nor more than twenty days after the last publication of such notice. The notice shall state that any person, corporation, limited liability company, municipality, and county in the district may appear or be represented at the hearing and show cause why the petition should or should not be granted. The board shall hear the petition at the time and place mentioned in the notice.
  3. If after the hearing on the petition the district board of directors shall determine that the county requesting to be excluded from the district will not be benefited, the district board shall by resolution grant the petition and shall direct the chairman and secretary to execute the order of the board excluding such county from the conservancy district. If, however, the district board shall decide that such county will be benefited it shall deny the petition and direct the chairman and secretary to execute its order refusing to exclude such county from the district. A county excluded from the conservancy district shall not be liable for any obligations thereof incurred after exclusion but shall be liable for and shall pay to the district taxes levied before exclusion.
  4. If any contract shall have been made with the United States or any agency thereof before such petition is filed, such petition shall not be granted unless consented thereto by the appropriate agency of the United States and if such agency gives its consent upon condition, such conditions shall be included in the order of exclusion and the county may be required to and in that event such county shall continue to pay any tax levies required to meet the obligations of any such contract.

Source:

S.L. 1955, ch. 348, § 16; R.C. 1943, 1957 Supp., § 61-2416; S.L. 1963, ch. 423, § 1; 1993, ch. 54, § 106.

61-24-17. Appeal from orders of district board.

An appeal from an order of the board of directors of the conservancy district denying a petition for exclusion may be taken to the district court of the petitioning county. The appeal must be taken in accordance with the procedure provided in section 28-34-01. The appeal must be docketed as any cause pending in district court is docketed and thereupon the court shall hear and determine the cause without a jury. An appeal to the supreme court may be taken by the petitioning county or by the conservancy district, from any judgment entered in district court, and from any order of the court if an appeal would lie from such order if entered by the court in a civil action.

Source:

S.L. 1955, ch. 348, § 17; R.C. 1943, 1957 Supp., § 61-2417; S.L. 1989, ch. 83, § 34.

Notes to Decisions

Scope of Review.

Conservancy district’s decision to deny Barnes County petition to withdraw from the district because of its determination that Barnes County will be benefited by the establishment of the Garrison Diversion Unit was upheld on appeal to the supreme court where such decision was within the district’s jurisdiction, made pursuant to applicable law, not arbitrary, oppressive, or unreasonable, and supported by a preponderance of the evidence. Barnes County v. Garrison Diversion Conservancy Dist., 312 N.W.2d 20, 1981 N.D. LEXIS 402 (N.D. 1981).

It was error and an encroachment on the executive function by the judiciary where district court, on appeal of Garrison Diversion Conservancy District’s denial of county’s application to withdraw from the district, reheard the evidence and heard new evidence not heard by the conservancy district when a verbatim transcript of the proceedings before the conservancy district was available and unchallenged. Barnes County v. Garrison Diversion Conservancy Dist., 312 N.W.2d 20, 1981 N.D. LEXIS 402 (N.D. 1981).

On appeal of conservancy district’s decision from district court to the supreme court, the supreme court is not obligated to give due regard to the findings of fact made by the trial court; instead, supreme court performs essentially the same function as the district court, and is governed by the same scope of review. Barnes County v. Garrison Diversion Conservancy Dist., 312 N.W.2d 20, 1981 N.D. LEXIS 402 (N.D. 1981).

61-24-18. State and political subdivisions contracting with the bureau of reclamation — Roads.

In connection with the construction and development of the Garrison diversion unit of the Missouri River basin project, the highway authorities of the state, or any county or organized township or municipality, are authorized to enter into agreements with each other or with the federal government, respecting the financing, planning, establishment, relocation, improvement, maintenance, use, regulation, vacation, or abandonment of public ways in their respective jurisdictions. Where any such contracts require the relocation, vacation, or abandonment of particular public ways, the contracting state agency, county, organized township, or municipality shall be vested with and authorized to exercise the powers of the state in the relocation, vacation, or abandonment of existing public ways.

Source:

S.L. 1967, ch. 477, § 1.

61-24-19. Easement granted for ditches, pipelines, canals, tramways, and transmission lines on any public lands.

In connection with the construction and development of the Garrison diversion unit of the Missouri River basin project, there is granted over all the lands belonging to the state, including lands owned or acquired for highway right-of-way purposes, a right of way for ditches, pipelines, or canals and for tunnels, tramways, and telephone and electric transmission lines constructed as part of the Garrison diversion unit; provided, however, that the director of the department of transportation, the board of county commissioners, or the board of township supervisors must approve the plans of the bureau of reclamation with respect to the use of any and all right of way of roads under their respective control prior to such grant becoming effective.

Source:

S.L. 1967, ch. 477, § 2; 2009, ch. 599, § 3.

61-24-20. Director of agricultural experiment station to determine best management practices — Reports to the Garrison Diversion Conservancy District — Monitoring of ground water quality.

  1. The director of the agricultural experiment station, with respect to all land to be irrigated by water from the Garrison diversion unit of the Pick-Sloan Missouri River basin project, shall promulgate rules and regulations for the determination of best management practices on the affected land. The rules and regulations may be amended from time to time. For the purposes of this section and section 61-24-21, “best management practices” means the application of water, fertilizers, pesticides, and herbicides in amounts that maximize crop production and economically efficient farming, while, at the same time, minimizing chemical or other pollution and degradation of ground or surface water supplies in areas irrigated with water from the Garrison diversion unit. Upon determining the best management practices for all land in question, the director of the agricultural experiment station shall file the information with the headquarters office of the district.
  2. The district in cooperation with other state agencies shall monitor the ground and surface water quality in all areas irrigated with water from the Garrison diversion unit, to determine compliance with the regulations concerning best management practices for farming of that land. If violations of best management practices are discovered, the district shall determine the location of all irrigators causing the violation and shall reduce the amount of water which may be distributed to the violating irrigator consistent with best management practices.

Source:

S.L. 1979, ch. 647, § 1.

Cross-References.

Experiment stations, see N.D.C.C. ch. 4-05.1.

61-24-21. District to allocate water in accordance with best management practices.

The district shall distribute water to irrigators purchasing water from the district in amounts that are consistent with the determinations of the director of the agricultural experiment station for best management practices in the farming of the applicable land.

Source:

S.L. 1979, ch. 647, § 2.

61-24-22. Resolution authorizing the issuance of revenue bonds.

  1. The issuance of revenue bonds or refunding bonds must be authorized by a resolution of the board adopted after appropriate notice by the affirmative vote of a majority of the board. Unless otherwise provided in the resolution, the resolution under this section takes effect immediately and need not be laid over, published, or posted.
  2. Each resolution providing for the issuance of bonds provided for in this chapter must contain the purposes for which the bonds are to be issued, the provisions for payment of the bonds, and the revenues or other funds pledged to secure the payment of the bonds.

Source:

S.L. 2009, ch. 599, § 4.

Effective Date.

This section became effective August 1, 2009.

61-24-23. Provisions governing bonds.

The resolution authorizing the issuance of revenue bonds or refunding bonds under this chapter or resolutions adopted after adoption of the original resolution must prescribe:

  1. The rates of interest, or if an interest rate is variable, the method for calculating the interest rate.
  2. Whether the bonds will be in one or more series.
  3. The dates the bonds will bear.
  4. The times the bonds will mature.
  5. The medium in which the bonds will be payable.
  6. The places where the bonds will be payable.
  7. The terms of redemption, if any, to which the bonds will be subject.
  8. The manner in which the bonds will be executed.
  9. The terms, covenants, and conditions that the bonds will contain.
  10. The form in which the bonds will be issued, either coupon or registered.

Source:

S.L. 2009, ch. 599, § 4.

Effective Date.

This section became effective August 1, 2009.

61-24-24. Sale of bonds — When private sale authorized — Public sale and notice.

Revenue bonds or refunding bonds may be sold at public or private sale on any terms as the board deems appropriate.

Source:

S.L. 2009, ch. 599, § 4.

Effective Date.

This section became effective August 1, 2009.

61-24-25. Notes issued pending preparation of bonds — Negotiability.

Pending the issuance of bonds, bond anticipation notes may be issued and sold in the form and with the provisions determined by the district.

Source:

S.L. 2009, ch. 599, § 4.

Effective Date.

This section became effective August 1, 2009.

61-24-26. Validity of notes and bonds.

Bond anticipation notes, revenue bonds, or refunding bonds bearing the manual or facsimile signatures of the appropriate officers who are in office on the date of signing are valid and binding obligations notwithstanding that before the delivery and payment any or all of the individuals whose signatures appear on the notes or bonds have ceased to be officers of the issuing district. The resolution authorizing the notes or bonds may provide that the notes or bonds must contain a recital that they are issued under this chapter and the recital is conclusive evidence of their validity and of the regularity of their issuance.

Source:

S.L. 2009, ch. 599, § 4.

Effective Date.

This section became effective August 1, 2009.

61-24-27. Notes and bonds exempt from taxation.

Notwithstanding any other provision of law, the state and all public officers, boards, and agencies, and political subdivisions and agencies of the state, including the public finance authority, all national banking associations, state banks, trust companies, savings banks and institutions, savings and loan associations, credit unions, investment companies, insurance companies, and other entities carrying on an investment business, and executors, administrators, guardians, trustees, and other fiduciaries, may legally invest any sinking funds, moneys, or other funds belonging to them or within their control in any bonds issued under this chapter, and the bonds are authorized security for public deposits. Notes and bonds, including refunding bonds, issued under this chapter and their interest and income are exempt from all taxation by the state or by any political subdivision except inheritance, estate, and transfer taxes.

Source:

S.L. 2009, ch. 599, § 4; 2017, ch. 424, § 2, eff April 19, 2017; 2017, ch. 427, § 1, eff July 1, 2017.

Effective Date.

This section became effective August 1, 2009.

61-24-28. Covenants and provisions that may be inserted in resolution authorizing bonds.

  1. Any resolution authorizing the issuance of bonds under this chapter may contain covenants and provisions concerning:
    1. The rates, fees, tolls, or charges to be charged for the services, facilities, and commodities of a project.
    2. The use and disposition of all or a portion of the district’s income, profits, and revenues.
    3. The creation, maintenance, regulation, use, and disposition of reserves or sinking funds.
    4. The purpose to which the proceeds of the sale of bonds may be applied and the use and disposition of the proceeds.
    5. The events of default and the rights and liabilities arising upon default and the terms and conditions upon which the holders of bonds issued under this chapter may bring civil action on the bonds.
    6. The creation, priority, and enforcement of liens against the district’s income, profits, or revenues.
    7. The issuance of other or additional bonds or instruments payable from, or constituting a charge against, the district’s income, profits, or revenues.
    8. The creation and use of synthetic interest rate contracts, interest rate caps, floors, and collars, and other techniques to lower the district’s borrowing rate or reduce its exposure to interest rate risk, or both.
    9. The keeping, inspection, and audit of books of account.
    10. The terms and conditions upon which any or all of the bonds become or may be declared due before maturity and the terms and conditions upon which the declaration and its consequences may be waived.
    11. The rights, liabilities, powers, and duties arising upon the breach by the district of any covenants, conditions, or obligations.
    12. The vesting in a trustee of the right to enforce any covenants made to secure, to pay, or in relation to the bonds, the powers and duties of the trustee, and the limitations of liabilities of the trustee.
    13. The terms and conditions upon which the holders of the bonds, or the holders of any proportion or percentage of them, may enforce any covenants made or any duties imposed under this chapter.
    14. A procedure by which the terms of any resolution authorizing bonds or of any other contract with bondholders, including an indenture of trust or similar instrument, may be amended or abrogated, and the amount of bonds that holders of which must consent to the resolution or contract, and the manner in which the consent may be given.
    15. The subordination of the security of any bonds issued under this chapter and the payment of principal and interest on those bonds, to the extent determined feasible and desirable by the governing body, to other bonds or obligations of the district issued to finance or refinance a project or that may be outstanding when the bonds thus subordinated are issued and delivered.
    16. Provisions with respect to the district entering an agreement with a private bond insurer, bank, or other liquidity or credit enhancer for bond insurance, a guarantee, a letter or credit, or any other credit or liquidity enhancement that the district may find to be advantageous or necessary to insure, guaranty, or enhance the payment of the principal of or interest on or liquidity for some or all of the bonds. The cost of the enhancement or liquidity may be paid from bond proceeds or from other funds of the district available for this purpose.
    17. The insurance to be carried upon the project and the use and disposition of insurance moneys.
  2. This section does not authorize the district to do anything in any manner or for any purpose which would result in the creation or incurring of a debt or indebtedness or the issuance of any instrument which would constitute a debt or indebtedness within the meaning of any provision, limitation, or restriction of the Constitution of North Dakota relating to the creation or incurring of a debt or indebtedness or the issuance of an instrument constituting a debt or indebtedness.

Source:

S.L. 2009, ch. 599, § 4.

Effective Date.

This section became effective August 1, 2009.

61-24-29. Liability of district for notes and bonds — Taxing power prohibited.

Bond anticipation notes, revenue bonds, and refunding bonds issued under this chapter may not be payable from or charged upon any funds other than the revenue pledged to the bond’s payment and the district’s notes and bonds may not be subject to any pecuniary liability. The holder of any of these notes or bonds may not enforce payment of the notes or bonds against any tangible real or personal nonrevenue property of the district. Notes and bonds issued under this chapter do not constitute a charge, lien, or encumbrance upon any tangible real or personal nonrevenue property of the district, other than the revenues pledged to their payments. Each note and each bond issued under this chapter must recite in substance that the note or bond and interest on the note or bond is payable solely from the revenue pledged to the payment and that the note or bond does not constitute a debt of the state within the meaning of any constitutional or statutory limitation.

Source:

S.L. 2009, ch. 599, § 4.

Effective Date.

This section became effective August 1, 2009.

61-24-30. Duties of district and officers relative to the issuance of bonds.

  1. To adequately secure the payment of bonds and interest on the bonds, the district and its officers, agents, and employees shall:
    1. Pay or cause to be paid punctually the principal and interest of every bond on the dates, at the places, in the manner, and out of the funds provided in the refunding bond and in accordance with the resolution authorizing its issuance.
    2. Make certain any project financed by the district is operated in an efficient and economical manner, enforce all water purchase and water sales contracts, and establish, levy, maintain, and collect related necessary or proper fees, tolls, rentals, rates, and other charges. The fees, tolls, rentals, rates, and other charges must be sufficient, after making due and reasonable allowances for contingencies and for a margin of error in the estimates, at least to:
      1. Pay all current expenses of operation and maintenance of any project;
      2. Make all payments required under any water purchase contract the district may execute;
      3. Pay the interest and principal on the district’s notes and bonds as they become due;
      4. Comply with the terms of the resolution authorizing the issuance of the bonds or any other contract or agreement with the holders of the funding bonds; and
      5. Meet any other obligations of the district that are charges, liens, or encumbrances upon the revenues of the district.
    3. Operate, maintain, preserve, and keep every part of any tangible project financed and owned or operated by the district in good repair, working order, and condition.
    4. Enforce the provisions of all water purchase and sale contracts that produce revenues pledged to payment of bonds.
    5. Preserve and protect the security of the bonds and the rights of the bondholders and warrant and defend such rights against all claims and demands.
    6. Pay and discharge all lawful claims for labor, materials, and supplies which, if unpaid, might become by law a lien or charge upon the revenues, or any part of the revenues, superior to the lien of the bonds or which might impair the security of the bonds.
    7. Hold in trust the revenues pledged to the payment of the bonds for the benefit of the holders of the bonds and apply the revenues only as provided by the resolution authorizing the issuance of the bonds or, if the resolution is modified, as provided in the modified resolution.
    8. Keep proper separate books of record and accounts of the project in which complete and correct entries must be made of all transactions relating to any part of the project. All books and papers of the district are subject to inspection by the holders of ten percent or more of the outstanding bonds or of their representatives authorized in writing.
  2. The duties contained in this section do not require any expenditure by the district of any funds other than revenue received from a project or water sale contract. The performance of the duties in this section is of the essence of the contract of the district with the bondholders.

Source:

S.L. 2009, ch. 599, § 4.

Effective Date.

This section became effective August 1, 2009.

61-24-31. Remedies of bondholders in general.

  1. Subject to any contractual limitations binding upon the holders of any issue of bonds, or a trustee for the holders, including the restriction of the exercise of any remedy to a specified proportion or percentage of the holders, any holder of bonds or trustee, for the equal benefit and protection of all bondholders similarly situated, may:
    1. By mandamus or other civil action, enforce the holder’s rights against the district and its board and any of its officers, agents, or employees and may require the district or the board or any officers, agents, or employees of the district or board to perform their duties and obligations under this chapter and their covenants and agreements with bondholders.
    2. By civil action, require the district and the board to account as if the district and the board were the trustees of an express trust.
    3. By civil action, enjoin any acts or things that may be unlawful or in violation of the rights of the bondholders.
    4. Bring suit upon the bond.
  2. A right or remedy conferred by this chapter upon any bondholder, or upon any trustee for a bondholder, is not intended to be exclusive of any other right or remedy, but each right or remedy is cumulative and in addition to every other right or remedy and may be exercised without exhausting and without regard to any other remedy conferred by this chapter or by any other law of this state.

Source:

S.L. 2009, ch. 599, § 4.

Effective Date.

This section became effective August 1, 2009.

61-24-32. Bonds as legal investments and security.

Notwithstanding any other provision of law, the state and all public officers, boards, and agencies, and political subdivisions and agencies of the state, all national banking associations, state banks, trust companies, savings banks and institutions, savings and loan associations, credit unions, investment companies, insurance companies, and other persons carrying on an investment business, and all executors, administrators, guardians, trustees, and other fiduciaries, may legally invest any sinking funds, moneys, or other funds belonging to them or within their control in any bonds issued under this chapter, and the bonds are authorized security for all public deposits.

Source:

S.L. 2009, ch. 599, § 4.

Effective Date.

This section became effective August 1, 2009.

CHAPTER 61-24.1 Garrison Diversion Mitigation and Enhancement Lands Commission [Repealed]

[Repealed by S.L. 1995, ch. 593, § 1]

CHAPTER 61-24.2 West River Water Supply District [Repealed]

[Repealed by S.L. 1993, ch. 607, § 2]

CHAPTER 61-24.3 Southwest Pipeline Project

61-24.3-01. Legislative findings and intent.

The legislative assembly finds that adequate water supplies for municipal, domestic, livestock, rural, irrigation, industrial, and other uses are essential for the social stability and economic security of the people of the state of North Dakota. It is further found that the development and utilization of the water resources of this state are necessary for the protection of health, property, and enterprise, and for the promotion of prosperity and general welfare of the people of the state of North Dakota, and that such development and utilization of water resources in this state involves and requires the exercise of the sovereign powers of the state and concern a public purpose. It is necessary the southwest pipeline project, as authorized and approved pursuant to this chapter, be established and constructed, to provide for the supplementation of the water resources of a portion of the area of North Dakota south and west of the Missouri River with water supplies from the Missouri River for multiple purposes, including domestic, rural, and municipal uses. In furtherance of this public purpose, the state water commission may provide for the issuance of bonds not to exceed twenty-five million dollars in accordance with chapter 61-02 to finance the cost of the project. The provisions of this chapter may not be construed to abrogate or limit the rights, powers, duties, or functions of the state water commission or the department of water resources, but are supplementary to the rights, powers, duties, or functions. Nor may this chapter be construed as limiting or affecting the laws of this state relating to the organization or operation of irrigation districts, water resource districts, or other political subdivisions.

Source:

S.L. 1983, ch. 685, § 1; 1997, ch. 515, § 3; 2001, ch. 568, § 1; 2021, ch. 488, § 170, eff August 1, 2021.

Note.

Section 21 of chapter 685, S.L. 1983, provides that all moneys obtained as payments for water service from the Southwest pipeline project for operation, maintenance, and replacement, as provided by this chapter and as provided in any water service contracts and amendments thereto between the state water commission and water user entities, and all moneys deposited with the state treasurer by the commission as specified in N.D.C.C. §§ 61-24.3-15 and 61-24.3-17, and all moneys constituting the operation and maintenance fund or the reserve fund for replacement, or so much thereof, as necessary, are appropriated to pay the costs and expenditures of the operation, maintenance, and replacement of the project. This appropriation shall not be repealed and no laws shall affect the authority and ability of the commission to operate, maintain, and replace the project, or provide for the operation, maintenance, and replacement of the project, as provided in this chapter.

Cross-References.

Irrigation districts, see N.D.C.C. chs. 61-05 to 61-11.

Water resource districts, see N.D.C.C. chs. 61-16, 61-16.1.

61-24.3-02. Definitions.

In this chapter:

  1. “Commission” means the state water commission.
  2. “Water user entities” means those persons, municipalities, rural water cooperatives, corporations, limited liability companies, and other entities which have entered into and executed water service contracts with the commission for the purchase of water from the commission through the southwest pipeline project.

Source:

S.L. 1983, ch. 685, § 2; 1993, ch. 54, § 106.

Cross-References.

State water commission, see N.D.C.C. ch. 61-02.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-24.3-03. Authorization of southwest pipeline project.

The preliminary designs for a water supply facility for supplementation of the water resources of a portion of the area of North Dakota south and west of the Missouri River for multiple uses, as set forth in the engineering preliminary design final report for the southwest pipeline project, state water commission project no. 1736, dated September 1982, are hereby confirmed and approved, under the designation of the southwest pipeline project, and the construction of the southwest pipeline project shall be initiated and completed by the state water commission substantially in accordance with plan B of the engineering preliminary design final report, state water commission project no. 1736, dated September 1982, except as otherwise specifically provided in this chapter. The commission shall have the authority to eliminate the construction of any primary or secondary transmission mains which are part of plan B of the engineering preliminary design final report if the water user entities to be served by the primary or secondary transmission mains do not execute water service contracts for the purchase of a sufficient quantity of water, as determined by the commission, to justify the construction of the primary or secondary transmission mains. Chapters 49-22 and 49-22.1 shall not apply to this chapter. The right of way is hereby given, dedicated, and set apart, to locate, construct, and maintain such works over and through any of the lands which are or may be the property of the state.

Source:

S.L. 1983, ch. 685, § 3; 2017, ch. 328, § 26, eff July 1, 2017.

61-24.3-03.1. Preference for resident pipeline manufacturers and bidders for labor and services.

Any contracts for the purchase of pipeline materials, labor, or services awarded by the state water commission in regard to the construction of the southwest water pipeline project must be awarded to North Dakota resident pipeline manufacturers and North Dakota resident bidders for labor and services making the lowest responsible bids if those bids do not exceed by more than five percent the lowest responsible bid submitted by a nonresident pipeline manufacturer or bidder for labor or services. As used in this section, “North Dakota resident pipeline manufacturers and bidders for labor or services” means bidders or sellers who have maintained a bona fide place of business within this state for at least five years prior to the date on which the contract bid on is awarded. If the state water commission awards any contract for pipeline materials, labor, or services in regard to construction of the southwest water pipeline project to a nonresident bidder, the commission shall publicly give notice in a newspaper of general circulation regarding the specific reasons why it did not award the contract to a resident bidder. This section does not apply to contracts that involve federal moneys when a preference would be contrary to federal laws or regulations, contracts covered under chapter 48-01.2, or to architect, engineer, professional right of way, and land surveying services.

Source:

S.L. 1985, ch. 33, § 1; 1987, ch. 747, § 1; 1995, ch. 443, § 28; 2007, ch. 403, § 24.

61-24.3-04. Water treatment.

The extent and type of water treatment and the location of a water treatment plant or plants for the southwest pipeline project shall be determined by the commission, in accordance with law and as in the judgment of the commission the interests of the state and the water user entities of the southwest pipeline project are best served. In determining the location of the water treatment plant or plants, the commission may only consider alternatives that will provide treated water to all potential using entities at a cost not to exceed the cost of water from the single treatment facility originally provided for in the engineering preliminary design final report for the southwest pipeline project, state water commission project no. 1736, dated September 1982. Any existing water treatment facility that is to be used in the final pipeline design must be made available to the state in operable condition free of deferred maintenance costs and at a cost that does not exceed the actual depreciation, maintenance, and operation costs of that facility. A water treatment facility is in operable condition if, at the time it becomes part of the southwest pipeline project, it is meeting the needs of its current users. Capital improvements necessary for upgrading any existing water treatment facility to be used in the southwest pipeline project must be borne by the state water commission.

Source:

S.L. 1983, ch. 685, § 4; 1987, ch. 748, § 1.

61-24.3-05. Intake structure.

The intake structure to be utilized for the withdrawal of water from the water source for the southwest pipeline project shall be determined by the commission, as in the judgment of the commission the interests of the state and water user entities of the southwest pipeline project are best served. In making its determination on the selection of the intake structure, the commission shall consider, among other things, cost, project stability, capacity and ability to withdraw water, and flexibility in delivering water to water user entities.

Source:

S.L. 1983, ch. 685, § 5.

61-24.3-06. Secondary transmission mains.

Secondary transmission mains shall be constructed as part of the southwest pipeline project, as provided in the engineering preliminary design final report for the southwest pipeline project, state water commission project no. 1736, dated September 1982, except as provided in section 61-24.3-03.

Source:

S.L. 1983, ch. 685, § 6.

61-24.3-06.1. Water distribution lines.

Notwithstanding the plans and specifications of state water commission project no. 1736, as authorized in this chapter, the state water commission is hereby authorized to investigate the integration of rural water delivery into the southwest pipeline project, state water commission project no. 1736. If the commission determines that construction cost savings, operation and maintenance cost savings, operation efficiencies, and other advantages can be realized by incorporating water supply, distribution, and delivery into one entire system, and that such benefits and advantages outweigh any additional costs or disadvantages, the commission shall plan, design, integrate, incorporate, construct, operate, and maintain the southwest pipeline project and rural water delivery as one system. The exercise of this authority must be in the manner and time as the commission may deem appropriate.

Source:

S.L. 1989, ch. 756, § 1.

61-24.3-07. Capacity for industrial use.

Upon receipt of a commitment from any large industrial user through the execution of a water service contract for the purchase of water from the southwest pipeline project, or other appropriate contract, as required by the commission, the commission shall have the authority to include in the southwest pipeline project sufficient capacity to provide water to such large industrial user, and to determine the rates and charges for delivery of water to the industrial user.

Source:

S.L. 1983, ch. 685, § 7; 2005, ch. 593, § 1.

61-24.3-08. Capacity for South Dakota users.

Upon receipt of a commitment from water user entities in South Dakota, through the execution of a water service contract for the purchase of water from the southwest pipeline project, whereby no less than the total additional capital costs of increasing the capacity of the southwest pipeline project to provide water through the southwest pipeline project for the water user entities in South Dakota will be paid by the water user entities in South Dakota, the commission shall have the authority to include in the southwest pipeline project the additional capacity for water user entities in South Dakota as provided in plans SD of the engineering preliminary design final report for the southwest pipeline project, state water commission project no. 1736, dated September 1982, and to determine the rates and charges for the operation and maintenance costs of delivery of water to such water user entities.

Source:

S.L. 1983, ch. 685, § 8.

61-24.3-09. Pipeline construction standards.

The commission, as in its judgment the interests of the state and the water user entities of the southwest pipeline project are best served, shall determine the pipeline construction standards to be utilized for the southwest pipeline project. In making its determination, the commission shall consider cost, maintenance, life of pipelines, and other factors it deems appropriate.

Source:

S.L. 1983, ch. 685, § 9.

61-24.3-10. Commission to construct, operate, and maintain southwest pipeline project — Rules made by commission.

The commission shall have the authority to:

  1. Construct the southwest pipeline project as provided in this chapter.
  2. Operate and maintain, or provide for the operation and maintenance of the southwest pipeline project.
  3. Exercise all express and implied rights, powers, and authorities, including all powers and authorities granted in chapter 61-02, necessary to carry out the provisions and purposes of this chapter.
  4. Make and enforce orders, rules, and bylaws for the operation and maintenance of the southwest pipeline project.
  5. Sell, transfer, or exchange property acquired for the southwest pipeline project provided the commission determines the property is not necessary for the operation, maintenance, or construction of the southwest pipeline project. For a period of sixty days, the property must first be offered for sale, transfer, or exchange to the current owner of the surrounding property from which the property was obtained. Any parcel of property sold, transferred, or exchanged under this section may not exceed two acres [.81 hectare]. Sections 54-01-05.2 and 54-01-05.5 do not apply to the sale, transfer, or exchange of property pursuant to this subsection.

Source:

S.L. 1983, ch. 685, § 10; 1995, ch. 594, § 1.

61-24.3-10.1. Deposits of income.

All income derived from the lease and management of lands acquired by the state water commission for the southwest pipeline project must be deposited in the resources trust fund.

Source:

S.L. 1997, ch. 25, § 10.

61-24.3-11. Commission to fix water rates for the southwest pipeline project.

The commission shall establish the payments for water service to be paid by water user entities for purchase of water from the southwest pipeline project. The payments for water service include each water user entity’s proportionate share of the operation, maintenance, and replacement costs, and also include a component for payment for capital costs. The commission shall include in its determination of each water user entity’s share of operation, maintenance, and replacement costs an amount to be deposited in the southwest pipeline project reserve fund for replacement, as established by section 61-24.3-16, for replacement and extraordinary maintenance of southwest pipeline project works. The amount of such reserve fund for replacement shall be determined by the commission.

Source:

S.L. 1983, ch. 685, § 11.

61-24.3-12. Operation and maintenance — Commission to employ manager and employees.

The commission shall obtain the assistance necessary for the operation and maintenance of the southwest pipeline project. To that end, it may appoint a manager, and may appoint subordinate officers and employees. It may designate the manager its general agent in respect to the operation and maintenance of the southwest pipeline project, but subject, nevertheless, in such agency, to the supervision, limitation, and control of the commission. It may appoint or employ such contractors, engineers, attorneys, and other experts, agents, and servants as in the judgment of the commission the interests of the state may require, and shall define the duties, designate the titles, and fix the compensation, within legislative appropriation, and the bonds of all such persons so engaged. Subject to the control and regulation of the commission the manager of the southwest pipeline project may appoint and employ such deputies and other subordinates, and such contractors, engineers, attorneys, and other experts, agents, and servants as the manager shall deem required. The total compensation of such appointees and employees, together with other expenditures for the operation and maintenance of the southwest pipeline project, shall remain within the appropriation and earnings lawfully available in each year for such purpose.

Source:

S.L. 1983, ch. 685, § 12.

61-24.3-13. Removal and discharge of appointees.

The commission may remove and discharge any and all persons appointed in the exercise of powers granted by this chapter, whether by the commission or by the manager of the southwest pipeline project. Any such removal may be made whenever in the judgment of the commission, the public interests and the interests of the southwest pipeline project require it. All appointments and removals contemplated by this chapter shall be made as the commission shall deem most fit to promote the purpose and efficiency of the southwest pipeline project.

Source:

S.L. 1983, ch. 685, § 13.

61-24.3-14. Operation and maintenance fund.

To identify and distinguish the revenues received by the commission from water user entities for operation and maintenance of the southwest pipeline project, there shall be maintained, as a part of the moneys of the state received and kept by the state treasurer, a fund to be designated as the southwest pipeline project operation and maintenance fund. All moneys received by the state treasurer from the commission, whether from payments made by water user entities for operation and maintenance of the southwest pipeline project or otherwise, which shall be by law or by other authoritative designation made applicable to the payment of operation and maintenance of the southwest pipeline project, shall be kept by the state treasurer in such fund distinct from all other moneys and shall be disbursed by the state treasurer only for the particular purpose or purposes for which the moneys were received, and no other appropriations shall ever be made of the moneys in said fund. This section shall not be construed as preventing the state treasurer from depositing the moneys in the Bank of North Dakota.

Source:

S.L. 1983, ch. 685, § 14; 1995, ch. 595, § 1.

61-24.3-15. Revenues for operation and maintenance — Deposit — Use.

Money derived and received by the commission from water user entities for operation and maintenance of the southwest pipeline project shall be deposited by the commission in the operation and maintenance fund, and shall be used for no purposes other than to pay for costs and expenditures for operation and maintenance of the southwest pipeline project.

Source:

S.L. 1983, ch. 685, § 15; 1995, ch. 595, § 2.

61-24.3-16. Reserve fund for replacement.

To identify and distinguish the revenues received by the commission from water user entities for replacement and extraordinary maintenance of the southwest pipeline project, there shall be maintained, as a part of the moneys of the state received and kept by the state treasurer, a fund to be designated as the southwest pipeline project reserve fund for replacement. All moneys received by the state treasurer from the commission, whether from payments made by water user entities for replacement and extraordinary maintenance of the southwest pipeline project or otherwise, which shall be by law or by other authoritative designation made applicable to replacement of the southwest pipeline project, shall be kept by the state treasurer in such fund distinct from all other moneys and shall be disbursed by the state treasurer only for the particular purpose or purposes for which the moneys were received, and no other appropriations shall ever be made of the moneys in the fund. This section shall not be construed as preventing the state treasurer from depositing the moneys in the Bank of North Dakota.

Source:

S.L. 1983, ch. 685, § 16; 1995, ch. 595, § 3.

61-24.3-17. Revenues for replacement — Deposit — Use.

Money derived and received by the commission from water user entities for replacement and extraordinary maintenance of the southwest pipeline project shall be deposited by the commission in the reserve fund for replacement, and shall be used for no purposes other than to pay for replacement or extraordinary maintenance of works which are part of or associated with the southwest pipeline project.

Source:

S.L. 1983, ch. 685, § 17; 1995, ch. 595, § 4.

61-24.3-18. Water rates for capital costs — Deposit.

Money derived and received from water user entities for capital costs of the southwest pipeline project may be pledged by the commission for the repayment of bonds issued for the construction of the southwest pipeline project. Any money not pledged must be deposited by the commission in the resources trust fund, established pursuant to section 57-51.1-07, and may be expended only pursuant to legislative appropriation for the purposes specified in subsection 1 of section 57-51.1-07.

Source:

S.L. 1983, ch. 685, § 18; 1997, ch. 515, § 4.

61-24.3-19. Validation of water service contracts.

Water service contracts entered by the commission for the distribution and sale of water to water user entities from the southwest pipeline project are confirmed and approved by the legislative assembly. The commission may commence a special proceeding in and by which the proceedings of the commission and the making of water service contracts are judicially examined, approved and confirmed, or disapproved and disaffirmed. The proceeding must comply as nearly as possible with the procedure authorized by sections 61-07-22 through 61-07-28 for irrigation district contracts. The requirements of section 40-33-16 are not applicable to contracts between the state water commission and cities for water service and cities for water service from the southwest pipeline project, provided the contracts were approved by the city governing body and executed before January 1, 1999.

Source:

S.L. 1983, ch. 685, § 19; 1999, ch. 543, § 2.

61-24.3-20. Other pipelines — Commission approval required.

Upon construction of the southwest pipeline project, utilities, corporations, limited liability companies, companies, or any other person or entity which proposes to install or construct a pipeline or other underground conveyance system which crosses or intersects the southwest pipeline project may do so only with the approval of the commission, in accordance with the requirements and conditions imposed by the commission for the pipeline or other crossing.

Source:

S.L. 1983, ch. 685, § 20; 1993, ch. 54, § 106.

61-24.3-21. Authorization of facilities — Water service areas.

Notwithstanding the plans and specifications of state water commission project no. 1736, as authorized in this chapter, the state water commission may include as part of the southwest pipeline project the delivery of water from southwest pipeline facilities to areas in Dunn County, Mercer County, and Oliver County and plan, design, integrate, incorporate, construct, operate, and maintain necessary facilities for this purpose as part of the southwest pipeline project, consistent with this chapter. The exercise of this authority must be in the manner and time the commission deems appropriate.

Source:

S.L. 1995, ch. 596, § 1.

CHAPTER 61-24.4 Southwest Pipeline Series Bonds [Repealed]

[Repealed by S.L. 1999, ch. 50, § 79]

CHAPTER 61-24.5 Southwest Water Authority

61-24.5-01. Findings and declaration of policy.

  1. Many areas and localities in southwestern North Dakota do not enjoy adequate quantities of high-quality drinking water. Other areas and localities in southwestern North Dakota do not have sufficient quantities of water to ensure a dependable, long-term supply. Supplementation of the water resources of southwestern North Dakota, with water supplies from Lake Sakakawea and the Missouri River, utilizing a pipeline transmission and delivery system, is a feasible approach to provide southwestern North Dakota with a safe, good quality, dependable source, and adequate quantity of water.
  2. Opportunity for greater economic security, protection of health, property, enterprise, preservation of the benefits from the land and water resources of this state, and the promotion of the prosperity and general welfare of all of the people of North Dakota depends on the effective development and utilization of the land and water resources of this state, and require the exercise of the sovereign powers of the state and concern a public purpose. To accomplish this public purpose, a project to supply and distribute water to southwestern North Dakota, as authorized by chapter 61-24.3 must be established and constructed, to:
    1. Provide for the supply and distribution of water to the people of southwestern North Dakota through a pipeline transmission and delivery system for purposes including domestic, rural water, municipal, livestock, light industrial, mining, and other uses, with primary emphasis on domestic, rural water, and municipal uses.
    2. Provide for the future economic welfare and property of the people of this state, and particularly the people of southwestern North Dakota, by making available waters from Lake Sakakawea and the Missouri River for beneficial and public uses.
  3. It is necessary to study and further develop water resources to provide adequate water supplies for energy, industrial, agriculture, and other opportunities in southwest North Dakota. This section may not be construed to limit the rights, powers, duties, and functions of the state water commission or the department of water resources, but must be considered supplementary to those rights, powers, duties, and functions.

Source:

S.L. 1991, ch. 705, § 1; 2009, ch. 600, § 1; 2021, ch. 488, § 171, eff August 1, 2021.

61-24.5-02. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

  1. “Authority” means the southwest water authority.
  2. “Board” means the board of directors of the southwest water authority.
  3. “Person” includes any natural person, state agency, municipality, political subdivision, public or private corporation, limited liability company, partnership, or association.
  4. “Southwest pipeline project” includes the project and works, or any part thereof, authorized in chapter 61-24.3.
  5. “Works” includes all property rights, easements, and franchises relating thereto and deemed necessary or convenient for operation of the southwest pipeline project, all water rights acquired and exercised by the authority in connection with the southwest pipeline project, and all means of delivering and distributing water through the utilization of a pipeline transmission and delivery system, as authorized in chapter 61-24.3.

Source:

S.L. 1991, ch. 705, § 2; 1993, ch. 54, § 106.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-24.5-03. Southwest water authority created.

The southwest water authority shall consist of that part of the state which is included within the boundaries of Dunn, Stark, Golden Valley, Billings, Slope, Bowman, Adams, Grant, Hettinger, Morton, and Mercer Counties.

Such authority is a governmental agency, body politic and corporate with the authority to exercise the powers specified in this chapter, or which may be reasonably implied.

Any county adjoining the authority as herein created, or as hereafter composed, may join such authority upon application of its board of county commissioners and the approval of such application by the board of directors of the authority. The board of directors, as a condition of approval of such application, may require payments as may be equitable to equalize the burden of such county with the obligations paid or assumed by the other counties in the authority.

Source:

S.L. 1991, ch. 705, § 3.

61-24.5-04. Board of directors — Officers — Meetings — Compensation.

The authority must be governed by a board of directors who must be chosen in accordance with this chapter. One director must be elected from each county within the authority, two directors must be elected in the city of Dickinson, and one director must be elected in the city of Mandan. The director from Stark County may not be a resident of the city of Dickinson. The director from Morton County may not be a resident of Mandan. The board shall elect from the directors a chairman, vice chairman, and secretary. A majority of the directors constitutes a quorum for the purpose of conducting the business of the board. The board shall meet at the time and place designated by the secretary. Board members are entitled to receive as compensation an amount determined by the board not to exceed the amount per day provided members of the legislative management under section 54-35-10 and must be reimbursed for their mileage and expenses in the amount provided for by sections 44-08-04 and 54-06-09.

Source:

S.L. 1991, ch. 705, § 4; 1997, ch. 432, § 35; 2001, ch. 569, § 1; 2003, ch. 557, § 1; 2009, ch. 482, § 94; 2009, ch. 601, § 1.

61-24.5-05. Initial board of directors. [Repealed]

Repealed by S.L. 2001, ch. 569, § 4.

61-24.5-06. Election of county directors of the southwest water authority.

Any person who is a resident and qualified elector of the county, who aspires to the office of director of the southwest water authority, shall, before four p.m. of the sixty-fourth day before any primary election preceding a general election at which a director of the authority is to be elected, present to the county auditor a petition giving that person’s name, post-office address, and the title of the office of the southwest water authority to which that person is seeking election. The petition must contain the signatures of not less than two percent of the qualified electors of the county as determined by the number of votes cast in the county for the office of director of the southwest water authority at the most recent preceding election at which the office of director of the southwest water authority was voted upon. Each signer of the petition shall include with that signer’s name that signer’s mailing address.

The petition must be accompanied by an affidavit substantially as follows:

State of North Dakota County of ss. I , being sworn, say that I reside in the county of and State of North Dakota; that I am a qualified elector therein; that I am a candidate for the office of director of the Southwest Water Authority to be elected at the primary election to be held on , , and I request that my name be printed upon the no-party primary election ballot as provided by law, as a candidate for the office. Subscribed and sworn to before me on , . Notary Public

Click to view

Upon receipt of the petition, the county auditor shall without fee place the name of the aspirant on the no-party primary election ballot as a candidate for the office of director. The candidate receiving the highest number of votes is elected.

At the primary election, votes must be canvassed, returned certified, and certificates of election issued in the manner provided by law for the election of county officers.

Source:

S.L. 1991, ch. 705, § 6; 1993, ch. 607, § 1; 1999, ch. 51, § 41; 2013, ch. 176, § 28.

61-24.5-07. Election of city directors of the southwest water authority.

Any person who is a resident and qualified elector of the city of Dickinson or Mandan who aspires to the office of director of the southwest water authority shall, before four p.m. on the sixty-fourth day before the election, file with the city auditor a petition signed by not less than ten percent of the number of qualified electors who voted for that office in the last city election, except that the petition for the first election must be signed by not less than two hundred qualified electors. Signers of a petition must reside within the corporate limits of the city, and each signer of the petition shall include with the signer’s name the signer’s mailing address. The petition must include the candidate’s name, post-office address, and the title of the office of the southwest water authority for which the candidate is seeking election.

The petition must be accompanied by an affidavit substantially as follows:

State of North Dakota County of ss. I _______________, being sworn, say that I reside in the city of _______________ and State of North Dakota; that I am a qualified elector therein; that I am a candidate for the office of director of the Southwest Water Authority to be elected at the municipal election to be held on ______________, ______, and I request that my name be printed upon the election ballot as provided by law, as a candidate for the office. Subscribed and sworn to before me on , . Notary Public

Click to view

Upon receipt of the petition, the city auditor shall without fee place the name of the aspirant on the election ballot as a candidate for the office of director. The candidate or candidates, depending on whether one or two directors are being elected, receiving the highest number of votes are elected. The provisions of chapter 40-21 govern the election of directors from the city of Dickinson or Mandan for the southwest water authority.

Source:

S.L. 1991, ch. 705, § 7; 1993, ch. 185, § 3; 1999, ch. 51, § 42; 2009, ch. 601, § 2; 2013, ch. 176, § 29; 2015, ch. 162, § 11, eff August 1, 2015.

61-24.5-08. Term of office of directors — Oath of office — Bonds.

Members of the board of directors of the authority hold office for a term of four years, until a successor has been duly elected and qualified. If the office of any director becomes vacant by reason of the failure of any director elected at any election to qualify or for any other reason, the director’s successor must be appointed to fill the vacancy by the board of county commissioners of the county in which the vacancy occurs, or by the governing body of the city of Dickinson or Mandan, as appropriate. A director appointed to fill a vacancy shall hold office for the unexpired term of the director whose office has become vacant, and until a successor has been elected and qualified.

Members of the board of directors elected from a county must be elected at the primary election and assume office on the first Monday in July following their election. Members of the board of directors elected from the city of Dickinson or Mandan must be elected at the municipal election and assume office on the first Monday in July following their election.

In 2002 all directors’ terms are deemed to have expired, and each county shall elect one director to serve on the board of directors and the city of Dickinson shall elect two directors to serve on the board of directors. In 2002 one director from the city of Dickinson and directors from Adams, Billings, Dunn, Grant, Oliver, and Slope Counties must be elected for two-year terms and in 2004 and thereafter must be elected for four-year terms. In 2010 the director from the city of Mandan must be elected to a four-year term. All subsequent directors elected must be elected for four-year terms.

Before assuming the duties of the office of director, each director shall take and subscribe to the oath of office prescribed by law for civil officers. The authority treasurer must be bonded in an amount as the board may prescribe.

Source:

S.L. 1991, ch. 705, § 8; 2001, ch. 569, § 2; 2009, ch. 601, § 3.

61-24.5-09. Powers and duties of the district board of directors.

The board of directors of the southwest water authority has the power:

  1. To sue and be sued in the name of the authority.
  2. To exercise the power of eminent domain in the manner provided by title 32 for the purpose of acquiring and securing any right, title, interest, estate, or easement necessary to carry out the duties imposed by this chapter, and particularly to acquire the necessary rights in land for the construction of pipelines, reservoirs, connections, valves, and all other appurtenant facilities used in connection with the southwest pipeline project, or any part thereof.
  3. To accept funds, property, and services or other assistance, financial or otherwise, from federal, state, and other public or private sources for the purpose of aiding and promoting the construction, maintenance, and operation of the southwest pipeline project, or any part thereof.
  4. To cooperate and contract with the state, its agencies, or its political subdivisions, or any agency of the United States, in research and investigation or other activities promoting the establishment, construction, development, or operation of the southwest pipeline project, or any part thereof.
  5. To furnish assurances of cooperation, and as principal and guarantor or either to enter into a contract, or contracts, with the United States of America, or any department or agency thereof, and with public corporations and political subdivisions of North Dakota for the performance of obligations for the construction, operation, or maintenance of the southwest pipeline project, or any part thereof, or for the delivery of water to any such department, agency, or political subdivision.
  6. To construct or purchase separately or in cooperation with agencies of the United States, or the state of North Dakota, its agencies or political subdivisions, and to equip, maintain, and operate an office and principal place of business for the district, or other buildings or facilities to carry out activities authorized by this chapter.
  7. To appoint and fix the compensation of such employees as the board shall deem necessary to conduct the business and affairs of the authority, and to procure the services of engineers and other technical experts, and to retain an attorney or attorneys to assist, advise, and act for it in its proceedings.
  8. To appoint from their number an executive committee and vest the same with such powers and duties as the board may from time to time delegate thereto, in order to facilitate the duties and work of the board in connection with the business affairs involved in the development, construction, operation, and maintenance of the southwest pipeline project, or any part thereof.
  9. To enter into a contract or contracts for a supply of water from the United States or the state water commission and to sell, lease, and otherwise contract to furnish any such water for beneficial use to persons or entities within or outside the authority.
  10. To accept, on behalf of the district, appointment of the district as fiscal agent of the United States or the state water commission and authorization to make collections of money for and on behalf of the United States or the state water commission in connection with the southwest pipeline project, or any part thereof.
  11. To sell or exchange any and all real property purchased or acquired by the authority. All moneys received pursuant to any such sale or exchange shall be deposited to the credit of the authority and may be disbursed for the payment of expenses of the authority.
  12. Notwithstanding any other law, to exercise the powers granted to a municipality under subsection 5 of section 40-33-01 pursuant to the limitations set forth therein. The authority may pay the cost of leasing any waterworks, mains, and water distribution system and any equipment or appliances connected therewith and any property related thereto pursuant to subsection 5 of section 40-33-01 solely from revenues to be derived by the authority from the ownership, sale, lease, disposition, and operation of the waterworks, mains, and water distribution system; the funds or any other amounts invested by the authority pursuant to the laws of the state or invested on the authority’s behalf by the state, or any agency or institution of the state, in conformity with policies of the industrial commission, including investment in a guaranteed investment contract and any earnings thereon, to the extent pledged therefor; and funds, if any, appropriated annually by the board of the authority or received from federal or state sources.
  13. To study and analyze options for providing additional water supplies to southwest North Dakota for purposes, including domestic, rural water, municipal, livestock, energy development, industrial, mining, and other uses.
  14. To conduct engineering, legal, financial, educational, and other activities to further the completion of the southwest pipeline project, or any part thereof, or any other works or projects necessary to provide adequate water supplies for southwest North Dakota.

Source:

S.L. 1991, ch. 705, § 9; 2003, ch. 342, § 14; 2009, ch. 600, § 2.

Law Reviews.

North Dakota Law Review: Energy Symposium: Article: Water Resources and Oil and Gas Development: A Survey of North Dakota Law, 87 N.D. L. Rev. 507 (2011).

61-24.5-10. District budget — Tax levy.

For each taxable year through 2020, the authority may levy a tax of not to exceed one mill annually on each dollar of taxable valuation within the boundaries of the authority for the payment of administrative expenses of the authority, including per diem, mileage, and other expenses of directors, expenses of operating the office, engineering, surveying, investigations, legal, administrative, clerical, and other related expenses of the authority. All moneys collected pursuant to the levy must be deposited to the credit of the authority and may be disbursed only as herein provided. The board may invest any funds on hand, not needed for immediate disbursement or which are held in reserve for future payments, in bonds of the United States, certificates of deposit guaranteed or insured by the United States or an instrumentality or agency thereof, and bonds or certificates of indebtedness of the state of North Dakota or any of its political subdivisions. During the period of time in which the authority may levy one mill annually as provided herein, any joint water resource board created pursuant to section 61-16.1-11, by or among one or more of the water resource districts in the counties which are included in the authority, must be limited to one mill under the authority of section 61-16.1-11.

Source:

S.L. 1991, ch. 705, § 10; 1993, ch. 45, § 21; 1993, ch. 608, § 1; 1995, ch. 597, § 1; 2001, ch. 570, § 1; 2009, ch. 600, § 3.

61-24.5-11. District budget — Determination of amount to be levied — Adoption of levy — Limitation.

In July of each year, the board of directors shall estimate and itemize all the administrative expenses and obligations of the district, including expenses of directors, expenses of operating the office, and any other obligations and liabilities relating to administrative, clerical, engineering, surveying, investigations, legal, and other related expenses of the authority. Upon the completion and adoption of such budget, the board of directors shall make a tax levy in an amount sufficient to meet such budget. Such levy must be in the form of a resolution, adopted by a majority vote of the members of the board of directors of the district. Such resolution must levy in mills, but may not exceed one mill, and must be sufficient to meet the administrative, engineering, surveying, investigations, legal and related expenses, obligations, and liabilities of the district as provided in the budget. The board shall also prepare and adopt an annual budget for operation, management, maintenance, and repayment of the southwest pipeline project. Revenues for operation, management, maintenance, and repayment of the southwest pipeline project must come from water service contract revenues.

Source:

S.L. 1991, ch. 705, § 11.

61-24.5-12. Board to certify mill levy to city auditors, county auditors, and state tax commissioner.

Upon the adoption of the annual mill levy by the board of directors, but no later than October first, the secretary of the board shall send one certified copy of the mill levy to the county auditor of each county which is a member of the authority. Copies of all such documents must be sent to the state tax commissioner.

Source:

S.L. 1991, ch. 705, § 12.

61-24.5-13. County auditors to extend tax levy.

The county auditor of each county within the authority, to whom a mill levy is certified in accordance with this chapter, shall extend the levy upon the tax lists for the current year against each description of real property and all personal property within the county in the same manner and with the same effect as other taxes are extended.

Source:

S.L. 1991, ch. 705, § 13.

61-24.5-14. County treasurer or city auditor to collect and remit district taxes — District fund established — Nonreverter — Disbursements.

The treasurer of each county in which a mill levy has been certified shall collect the taxes, together with interest and penalty thereon, if any, in the same manner as the general taxes are collected, and shall pay over to the treasurer of the authority, on demand, all taxes, interest, and penalties so collected, and shall forthwith notify the secretary of the authority of such payment. Expenditures must be approved by the board of directors.

Source:

S.L. 1991, ch. 705, § 14; 1997, ch. 520, § 1.

61-24.5-15. Proceedings to confirm contract.

The board of directors of the authority, after entering into a contract with the United States government, the state of North Dakota, or with any public corporation or political subdivision of the state of North Dakota, may commence a special proceeding in and by which the proceedings of the board and the making of such contract, or contracts, must be judicially examined, approved, and confirmed, or disapproved and disaffirmed. Such proceeding must comply as nearly as possible with the procedure required in the case of irrigation districts under the laws of North Dakota.

Source:

S.L. 1991, ch. 705, § 15.

61-24.5-16. Procedure for exclusion from authority of county not benefited.

  1. Any county in the authority not benefited or not to be benefited, in whole or in part, by the southwest pipeline project, or any part thereof, may be excluded from the authority as provided herein. The board of county commissioners of any such county may by resolution direct the county auditor and the chairman of the board to file with the board of directors of the authority a petition, for and on behalf of the county, requesting the board of directors of the authority to exclude such county therefrom. A certified copy of the resolution of the county board must accompany and be filed with such petition. The petition and resolution must state specific reasons why such county will not be benefited by the southwest pipeline project, or any part thereof.
  2. Within sixty days from the date of filing said resolution and petition for exclusion from the authority, the authority board shall meet to consider such petition. It may grant such petition or it may fix a time and place for a hearing thereon. If a hearing is set, the secretary of the board shall cause notice of the filing of such petition for exclusion, and of the time and place for a hearing, to be published once each week for two consecutive weeks in a newspaper of general circulation printed within the authority. The hearing mentioned in such notice must be held not less than ten nor more than twenty days after the last publication of such notice. The notice must state that any person, corporation, limited liability company, municipality, and county in the authority may appear or be represented at the hearing and show cause why the petition should or should not be granted. The board shall hear the petition at the time and place mentioned in the notice.
  3. If after the hearing on the petition the authority board of directors shall determine that the county requesting to be excluded from the authority will not be benefited, the authority board shall by resolution grant the petition and shall direct the chairman and secretary to execute the order of the board excluding such county from the authority. If, however, the authority board shall decide that such county will be benefited, it shall deny the petition and direct the chairman and secretary to execute its order refusing to exclude such county from the authority. A county excluded from the authority is not liable for any obligations thereof incurred after exclusion but is liable for and shall pay to the authority taxes levied before exclusion.
  4. If any contract has been made with the United States or any agency thereof, or the state of North Dakota or any agency thereof, before such petition is filed, such petition may not be granted unless consented thereto by the appropriate agency of the United States or North Dakota, and if such agency gives its consent upon condition, such conditions must be included in the order of exclusion and the county may be required to, and in that event such county shall continue to, pay and satisfy any obligations under any such contract.

Source:

S.L. 1991, ch. 705, § 16; 1993, ch. 54, § 106.

61-24.5-17. Appeal from orders of authority board.

An appeal from an order of the board of directors of the authority denying a petition for exclusion may be taken to the district court of the petitioning county. The appeal provided for herein must be taken within thirty days after the order of the authority board has been filed with the secretary thereof and public notice of such order has been made. The appeal must be taken by serving notice of appeal upon the secretary of the authority. The appeal must be docketed as any cause pending in district court is docketed and thereupon the court shall have and exercise original jurisdiction and shall hear and determine the cause de novo without a jury. An appeal to the supreme court may be taken by the petitioning county or by the authority, from any judgment entered therein in district court, and from any order of said court if an appeal would lie from such order if entered by the court in a civil action.

Source:

S.L. 1991, ch. 705, § 17.

61-24.5-18. Easement granted for ditches, canals, tramways, and transmission lines on any public lands.

In connection with the construction and development of the southwest pipeline project, there is granted over all the lands belonging to the state, including lands owned or acquired for highway right-of-way purposes, a right of way for pipelines, connections, valves, and all other appurtenant facilities constructed as part of the southwest pipeline project, provided, however, the director of the department of transportation and the director of the department of water resources must approve the plans of the authority regarding the use of all right of way of roads before the grant is effective.

Source:

S.L. 1991, ch. 705, § 18; 2021, ch. 488, § 172, eff August 1, 2021.

61-24.5-19. Operation and maintenance fund.

To identify and distinguish the revenues received by the southwest water authority from water user entities for operation and maintenance of the southwest pipeline project, the southwest water authority shall maintain a fund designated as the southwest pipeline project operation and maintenance fund. All moneys received by the southwest water authority, whether from payments made by water user entities, or otherwise, for operation and maintenance of the southwest pipeline project must be by law or by other authoritative designation made applicable to the payment of operation and maintenance of the southwest pipeline project, must be kept in the fund distinct from all other moneys, and must be disbursed only for the particular purpose or purposes for which the moneys were received.

Source:

S.L. 1995, ch. 595, § 5.

61-24.5-20. Revenues for operation and maintenance — Deposit — Use.

Money derived and received by the southwest water authority from water user entities for operation and maintenance of the southwest pipeline project must be deposited by the southwest water authority in the operation and maintenance fund and must be used to pay for costs and expenditures for operation and maintenance of the southwest pipeline project.

Source:

S.L. 1995, ch. 595, § 6.

61-24.5-21. Reserve fund for replacement.

To identify and distinguish the revenues received by the southwest water authority from water user entities for replacement and extraordinary maintenance of the southwest pipeline project, there must be maintained a fund to be designated as the southwest pipeline project reserve fund for replacement. All moneys received by the southwest water authority, whether from payments made by water user entities, or otherwise, for replacement and extraordinary maintenance of the southwest pipeline project, which are by law or by other authoritative designation made applicable to replacement of the southwest pipeline project, must be kept by the southwest water authority in the fund distinct from all other moneys and may be disbursed only for the particular purpose for which the moneys were received.

Source:

S.L. 1995, ch. 595, § 7.

61-24.5-22. Revenues for replacement — Deposit — Use.

Money derived and received by the southwest water authority from water user entities for replacement and extraordinary maintenance of the southwest pipeline project must be deposited by the southwest water authority in the reserve fund for replacement and must be used to pay for replacement or extraordinary maintenance of works that are part of or associated with the southwest pipeline project.

Source:

S.L. 1995, ch. 595, § 8.

CHAPTER 61-24.6 Northwest Area Water Supply Project

61-24.6-01. Findings and declaration of policy.

Many areas and localities in northwestern North Dakota do not enjoy safe drinking water, and the water in these areas and localities contains iron, sulfates, alkali, salt, nitrates, fluoride, and other hazardous and discoloring substances. Other areas and localities in northwestern North Dakota do not have sufficient quantities of water to ensure a dependable, long-term supply. Supplementation of the water resources of northwestern North Dakota with water supplies from the Missouri River, utilizing a pipeline transmission and delivery system, may be the only alternative to provide northwestern North Dakota with a safe, good quality, dependable source, and adequate quantity of water.

Effective development and utilization of the land and water resources of this state; the opportunity for greater economic security; the protection of health, property, enterprise, and the preservation of the benefits from the land and water resources of this state; and the promotion of the prosperity and general welfare of all of the people of North Dakota involve and require the exercise of the sovereign powers of the state and concern a public purpose. To accomplish this public purpose, a project to supply and distribute water to the people of northwestern North Dakota through a pipeline transmission and delivery system for purposes, including domestic, rural water districts, municipal, livestock, light industrial, mining, and other uses, with primary emphasis on domestic, rural water district, and municipal uses must be pursued. In furtherance of this public purpose, the state water commission may provide for the issuance of bonds in accordance with chapter 61-02 to finance the costs of the project.

This chapter may not be construed to limit the rights, powers, duties, and functions of the state water commission or the department of water resources, but must be considered supplementary to those rights, powers, duties, and functions.

Source:

S.L. 1991, ch. 704, § 1; 1995, ch. 588, § 17; 1995, ch. 598, § 1; 2021, ch. 488, § 173, eff August 1, 2021.

61-24.6-02. Northwest area water supply advisory committee-Created.

The northwest area water supply advisory committee consists of the following representatives, appointed by the state engineer:

  1. One person from the city of Minot recommended by the Minot city council.
  2. One person from the Bottineau, Burke, McHenry, McLean, Pierce, Renville, and Ward County water resource districts recommended jointly by the governing boards of the Bottineau, Burke, McHenry, McLean, Pierce, Renville, and Ward County water resource districts.
  3. One representative of the state water commission recommended by the commission.
  4. One representative of the Turtle Mountain Band of Chippewa Indians recommended by the tribal council who will serve as a nonvoting member.
  5. One representative of rural water distribution systems located in northwestern North Dakota. This representative must be a resident of Bottineau, Burke, McHenry, McLean, Pierce, Renville, or Ward County.
  6. One representative of a municipality other than the city of Minot, located in Bottineau, Burke, McHenry, McLean, Pierce, Renville, or Ward County.
  7. One representative of the Garrison Diversion Conservancy District recommended by the board of directors of the conservancy district.
  8. One at-large representative.

Source:

S.L. 1991, ch. 704, § 2; 1999, ch. 543, § 7; 2021, ch. 488, § 174, eff August 1, 2021; 2021, ch. 493, § 1, eff March 30, 2021.

Note.

Section 61-24.6-02 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 174 of Chapter 488, Session Laws 2021, House Bill 1353; and Section 1 of Chapter 493, Session Laws 2021, House Bill 1063.

61-24.6-02. Northwest area water supply advisory committee — Created.

The northwest area water supply advisory committee consists of the following representatives, appointed by the director of the department of water resources:

  1. One person from the city of Minot recommended by the Minot city council.
  2. One person from the city of Williston recommended by the Williston city council.
  3. One person from the Bottineau, Burke, Divide, McHenry, McLean, Mountrail, Pierce, Renville, Ward, or Williams County water resource districts recommended jointly by the governing boards of the Bottineau, Burke, Divide, McHenry, McLean, Mountrail, Pierce, Renville, Ward, or Williams County water resource districts.
  4. One representative of the state water commission recommended by the commission.
  5. One representative of the Three Affiliated Tribes, representing that area of the Fort Berthold Indian Reservation north of the Missouri River and Lake Sakakawea recommended by the tribal council.
  6. One representative of rural water distribution systems located in northwestern North Dakota. This representative must be a resident of Bottineau, Burke, Divide, McHenry, McLean, Mountrail, Pierce, Renville, Ward, or Williams County.
  7. One representative of a municipality other than the city of Minot, located in Bottineau, Burke, Divide, McHenry, McLean, Mountrail, Pierce, Renville, Ward, or Williams County.
  8. One representative of the Garrison Diversion Conservancy District recommended by the board of directors of the conservancy district.
  9. One at-large representative.

Source:

S.L. 1991, ch. 704, § 2; 1999, ch. 543, § 7; 2021, ch. 488, § 174, eff August 1, 2021.

61-24.6-03. Advisory committee — Duty — Officers — Meetings — Compensation — Staffing.

The northwest area water supply advisory committee shall develop recommendations for the legislative management regarding the transition of long-term operations and management of the northwest area water supply project. The advisory committee shall elect a chairman and vice chairman and meet no less than once per quarter at the times and places necessary to carry out the purposes of this chapter. The advisory committee members may be reimbursed for their mileage and expenses in the amount provided for by sections 44-08-04 and 54-06-09. The advisory committee members serve at the pleasure of the state engineer. Vacancies must be filled in the same manner as original appointments are made. The state water commission shall provide staffing and support for the advisory committee.

Source:

S.L. 1991, ch. 704, § 3; 2021, ch. 488, § 175, eff August 1, 2021; 2021, ch. 493, § 2, eff March 30, 2021.

Note.

Section 61-24.6-03 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 175 of Chapter 488, Session Laws 2021, House Bill 1353; and Section 2 of Chapter 493, Session Laws 2021, House Bill 1063.

61-24.6-03. Advisory committee — Officers — Meetings — Compensation.

The northwest area water supply advisory committee shall elect a chairman and vice chairman. The advisory committee shall meet at the times and places necessary to carry out the purposes of this chapter. The advisory committee members may be reimbursed for their mileage and expenses in the amount provided for by sections 44-08-04 and 54-06-09. The advisory committee members serve at the pleasure of the director of the department of water resources. Vacancies must be filled in the same manner as original appointments are made.

Source:

S.L. 1991, ch. 704, § 3; 2021, ch. 488, § 175, eff August 1, 2021.

61-24.6-04. Powers of the state water commission in consultation with the northwest area water supply advisory committee.

The state water commission shall consult with the northwest area water supply advisory committee regarding the following duties of the commission:

  1. Accept funds, property, services, or other assistance, financial or otherwise, from federal, state, tribal, and other public or private sources for the purpose of aiding and promoting the development of a project to deliver water to northwestern North Dakota.
  2. Cooperate and contract with the state, its agencies, or its political subdivisions, the Three Affiliated Tribes, or any agency of the United States, in research and investigation or other activities promoting the development of a project to deliver water to northwestern North Dakota.
  3. Appoint and procure the services of engineers, attorneys, and others to assist in developing a project to deliver water to northwestern North Dakota.
  4. Exercise such other powers as may be necessary for, or incidental to, the achievement of the purposes of this chapter.
  5. Construct, operate, and manage a project to deliver water throughout the project area.

Source:

S.L. 1991, ch. 704, § 4; 2021, ch. 493, § 3, eff March 30, 2021.

61-24.6-05. Department of water resources — Employment of staff.

The director of the department of water resources may employ full-time and other personnel as necessary to administer this chapter and as available funds permit. Notwithstanding section 61-02-64.1, funds disbursed from the contract fund or appropriated for purposes of administering this chapter may be used for salaries and expenses of persons employed pursuant to this chapter.

Source:

S.L. 1991, ch. 704, § 5; 2021, ch. 488, § 176, eff August 1, 2021.

61-24.6-06. Commission to fix water rates for the northwest area water supply project.

The state water commission, after consulting with the northwest area water supply advisory committee, shall establish the payments for water service to be paid by water user entities for purchase of water from the northwest area water supply project. The payments for water service must include each water user entity’s proportionate share of the operation, maintenance, and replacement costs, and also include a component for payment for capital costs. The commission shall include in its determination of each water user entity’s share of operation, maintenance, and replacement costs an amount to be deposited in the northwest area water supply project reserve fund for replacement, as established by section 61-24.6-07, for replacement and extraordinary maintenance of northwest area water supply project works. The amount of the reserve fund for replacement must be determined by the commission.

Source:

S.L. 1999, ch. 543, § 3; 2021, ch. 493, § 4, eff March 30, 2021.

61-24.6-07. Operation and maintenance fund-Deposit-Use.

Revenues received by the state water commission from water user entities or otherwise for operation and maintenance of the northwest area water supply project must be maintained, as a part of the moneys of the state received and kept by the state treasurer in a fund to be designated as the northwest area water supply project operation and maintenance fund. All moneys received by the state treasurer for operation and maintenance of the northwest area water supply project and the interest on moneys in the fund must be kept by the state treasurer in the fund distinct from all other moneys and must be disbursed by the state treasurer and used only for paying for costs and expenditures for operation and maintenance of the northwest area water supply project.

Source:

S.L. 1999, ch. 543, § 4; 2021, ch. 493, § 5, eff March 30, 2021.

61-24.6-08. Reserve fund for replacement — Deposit — Use.

Revenues received by the state water commission from water user entities or otherwise for replacement and extraordinary maintenance of the northwest area water supply project may be held pursuant to the terms of a resolution or trust indenture adopted by the commission. Any money not held pursuant to the terms of a resolution or trust indenture must be deposited by the commission and maintained, as a part of the moneys of the state received and kept by the state treasurer, in a fund designated as the northwest area water supply project reserve fund for replacement. All moneys received by the state treasurer for replacement and extraordinary maintenance of the northwest area water supply project and the interest on the moneys must be kept by the state treasurer in the fund distinct from all other moneys and must be disbursed by the state treasurer and used only for replacement and extraordinary maintenance of the northwest area water supply project.

Source:

S.L. 1999, ch. 543, § 5; 2021, ch. 493, § 6, eff March 30, 2021.

61-24.6-09. Capital costs — Deposit — Use.

Money derived and received from water user entities or otherwise for capital costs or construction of the northwest area water supply project may be held pursuant to the terms of a resolution or trust indenture adopted by the state water commission. Any money not held pursuant to the terms of a resolution or trust indenture must be deposited by the commission and maintained, as part of the moneys of the state received and kept by the state treasurer, in a fund designated as the northwest area water supply project fund for capital costs and construction. All moneys received by the state treasurer for capital costs and construction of the northwest area water supply project, and all interest on the moneys, must be kept by the state treasurer in the fund distinct from all other moneys and must be disbursed by the state treasurer and used only for capital costs and construction of the northwest area water supply project.

Source:

S.L. 1999, ch. 543, § 6; 2021, ch. 493, § 7, eff March 30, 2021.

61-24.6-10. Areas served by the northwest area water supply project.

The commission may provide, as part of the northwest area water supply project, delivery, distribution, and treatment of water from the Missouri River or other sources, to areas in Bottineau, Burke, McHenry, McLean, Pierce, Renville, and Ward Counties. The facilities for delivery of water may be from a pipeline transmission and delivery system or through other works, as determined by the commission.

Source:

S.L. 1999, ch. 543, § 8; 2021, ch. 493, § 8, eff March 30, 2021.

61-24.6-11. Commission has authority to sell property.

If the state water commission determines property acquired for the northwest area water supply project is no longer necessary for project purposes and the unnecessary parcel is five contiguous acres [2.03 hectares] or less, sections 54-01-05.2 and 54-01-05.5 do not apply. The commission shall have the authority to sell, transfer, or exchange the unnecessary parcel to the current owner of the parent parcel from which the unnecessary parcel was taken. If the parent parcel’s current owner does not accept the commission’s offer within sixty days, the commission may offer the property to any other adjacent property owner for a period of sixty days. If no offers are accepted within sixty days, the property sale will be governed by sections 54-01-05.2 and 54-01-05.5.

Source:

S.L. 2013, ch. 485, § 1; 2021, ch. 493, § 9, eff March 30, 2021.

CHAPTER 61-24.7 Red River Valley Water Supply Project

61-24.7-01. Legislative findings and intent — Authority to issue bonds.

The legislative assembly finds that the provision of water of sufficient quantity and quality to supply homes, businesses, industries, wildlife, and recreation in the Red River valley within this state is necessary for the protection of health, property, and enterprises and for the promotion of prosperity and the general welfare of the people of the Red River valley and that construction of the Red River valley water supply project involves and requires the exercise of the sovereign powers of the state and concerns a public purpose. Therefore, it is declared necessary and in the public interest that the state by and through the state water commission provide a share of the cost of constructing the Red River valley water supply project.

Source:

S.L. 2007, ch. 559, § 1; 2009, ch. 602, § 1; 2013, ch. 490, § 12.

Law Reviews.

For Note: The Future of Quantifying Tribal Water Rights in North Dakota, see 84 N.D. L. Rev. 455 (2008).

61-24.7-02. Funding — Red River valley water supply project — Bond issuance amount. [Repealed]

Repealed by S.L. 2013, ch. 490, § 24.

61-24.7-03. Limitation of action. [Repealed]

Repealed by S.L. 2013, ch. 490, § 24.

61-24.7-04. Bonds payable from water development trust fund. [Repealed]

Repealed by S.L. 2013, ch. 490, § 24.

61-24.7-05. State funding plan.

  1. The legislative assembly declares its intent to provide state funding for a share of the cost of constructing the Red River valley water supply project.
  2. Any funds appropriated for the construction of the Red River valley water supply project may be carried over to future bienniums.
  3. State funding for the Red River valley water supply project may be appropriated at the time and in the manner determined by the legislative assembly, either concurrently or separately from any federal funding that becomes available and the local funding for the Red River valley water supply project.

Source:

S.L. 2007, ch. 559, § 5; 2009, ch. 602, § 3; 2013, ch. 490, § 13; 2017, ch. 427, § 2, eff July 1, 2017.

CHAPTER 61-24.8 Garrison Diversion Conservancy District Irrigation Special Assessments

61-24.8-01. Definitions.

As used in this chapter:

  1. “Auditor” means the county auditor.
  2. “Board” means the board of directors of the Garrison Diversion Conservancy District.
  3. “Bond” means any revenue bond, refunding bond, improvement bond, or other evidence of indebtedness, including indebtedness owed to banks, or other public or private lending sources, of the district issued under this chapter.
  4. “Direct benefit” means water is delivered to a tract of land.
  5. “Director” means a member of the board of directors.
  6. “District” means the Garrison Diversion Conservancy District.
  7. “Federal agency” includes the United States, the president of the United States, or any agency, instrumentality, or corporation of the United States which has been or may be designated or created by or pursuant to any act or acts or joint resolutions of the Congress of the United States or which may be owned or controlled, directly or indirectly, by the United States.
  8. “Holder of bonds” or “bondholder”, or any similar term, means any person who is the registered owner of any outstanding revenue bond, improvement bond, or refunding bond.
  9. “Law” means any statute of this state.
  10. “Project” means any work, undertaking, enterprise, or any combination of two or more projects, which the district is authorized to construct. The term includes all irrigation improvements, betterments, extensions, and replacements of work, undertaking, or enterprises, and all appurtenances, facilities, easements, lands, rights in land, water rights, contract rights, approaches, dams, reservoirs, generating stations, trunk connections, other water mains, filtration works, pumping stations, equipment, franchises, and structures in connection with or incidental to any irrigation work, undertaking, or enterprise the district is authorized to construct.
  11. “Refinancing” means funding, refunding, paying, or discharging by means of refunding bonds or the proceeds from the sale of refunding bonds, all or any part of any notes, bonds, or other obligations issued to finance or to aid in financing the acquisition, construction, or improvement of a project.
  12. “Refunding bonds” means notes, bonds, certificates, or other obligations of the district issued under this chapter, the proceeds of which are to be used to pay the principal of or interest on any outstanding bonds or other obligations.
  13. “Revenues” means all fees, tolls, rates, rentals, and charges levied and collected by the district in connection with, and all other income and receipts of whatever kind or character derived by the district from, the operation of any project.

“Warrant” means an order drawn by the proper official of the district on its treasury, the warrant to be so drawn that when signed by the district treasurer in an appropriate place it becomes a check on the depository of the district, and a warrant upon the treasury may not be delivered or mailed to the payee or the payee’s agent or representative until the warrant has been signed by the district treasurer and entered on the district’s books as a check drawn on a bank depository.

Source:

S.L. 2011, ch. 496, § 2; 2017, ch. 424, § 3, eff April 19, 2017; 2021, ch. 488, § 177, eff August 1, 2021.

Cross-References.

For Garrison Diversion Conservancy District, generally, see N.D.C.C. ch. 61-24.

61-24.8-02. Financing project through improvement bonds or special assessments — Apportionment of benefits.

The board may acquire needed interest in property and provide for the cost of construction, alteration, repair, operation, and maintenance of a project with funds raised by special assessments. The board may issue improvement bonds in anticipation of the levy and collection of special assessments. If the board decides to acquire property or interests in property to construct, operate, alter, repair, or maintain a project with funds raised in whole or in part through special assessments, the assessments must be apportioned to and spread in proportion to direct benefits accruing to lands or premises benefited by the project. The board shall assess the proportion of the cost of the project, or the part of the cost to be financed with funds raised through levy and collection of special assessments which any lot, piece, or parcel of land bears in proportion to the direct benefits accruing to the property that is benefited.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-03. Resolution authorizing project and the issuance of revenue bonds.

The acquisition, construction, reconstruction, improvement, betterment, or extension of any project and the issuance of bonds in anticipation of the collection of special assessments or of the revenues of such project to provide funds to pay the associated costs may be authorized by a resolution of the board adopted after appropriate notice by the affirmative vote of a majority of the board. Unless otherwise provided in the resolution, the resolution under this section takes effect immediately and need not be laid over, published, or posted.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-04. Construction.

Powers under this chapter are in addition and supplemental to and not in substitution for, and the limitations imposed by this chapter do not affect the powers conferred by, any other law. Bonds may be issued under this chapter without regard to any other laws of this state, except as provided in section 61-24-29. The project may be acquired, purchased, constructed, reconstructed, improved, bettered, and extended, and bonds may be issued under this chapter for those purposes, notwithstanding that any other law may provide for the acquisition, purchase, construction, reconstruction, improvement, betterment, and extension of a like project or for the issuance of bonds for like purposes, and without regard to the requirements, restrictions, debt, or other limitations or other provisions contained in any other law, including any requirement for any restriction or limitation on the incurring of indebtedness or the issuance of bonds. If this chapter is inconsistent with any other law of this state, the provisions of this chapter are controlling with reference to the issuance of bonds.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-05. Power of district to defray expense of improvements by special assessments.

Upon complying with this chapter, the district may defray the expense of any or all of the improvements by special assessments, including the construction of all or part of an irrigation water supply works or any improvement, extension, or replacement of such works, including the construction and erection of wells, intakes, pumping stations, settling basins, filtration plants, standpipes, water towers, canals, ditches, aqueducts, reservoirs, water mains, and outlets, and all other appurtenances, contrivances, and structures used or useful for a central supply works. In planning an improvement project, the board may include in the plans any and all items of work and materials, which in its judgment are necessary or reasonably incidental to the completion of an improvement project of that type.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-06. Condemnation of land and rights of way for special improvements — Taking of possession — Trial — Appeal — Vacation of judgment.

When property required to make any improvement authorized by this chapter is to be taken by condemnation proceedings, the court, upon request by resolution of the board of the district making the improvement, shall call a special term of court for the trial of the proceedings and may summon a jury for the trial. The proceedings must be instituted and prosecuted in accordance with chapter 32-15, except that when the interest sought to be acquired is a right of way for the laying of any main, pipe, ditch, canal, aqueduct, or flume for conducting water, whether within or without the district, the district may make an offer to purchase the right of way and may deposit the amount of the offer with the clerk of the district court of the county in which the right of way is located, and may then take possession of the right of way. The offer must be made by resolution of the board of the district, and a copy of the resolution must be attached to the complaint filed with the clerk of court in accordance with section 32-15-18. The clerk shall immediately notify the owners of the land on which the right of way is located of the deposit by causing a notice to be appended to the summons when served and published in the proceedings as provided in the North Dakota Rules of Civil Procedure stating the amount deposited or agreed in the resolution to be deposited. The owner may then appeal to the court by filing an answer to the complaint in the manner provided in the North Dakota Rules of Civil Procedure and may have a jury trial, unless a jury is waived, to determine the damages. However, upon due proof of the service of the notice and summons and upon deposit of the aggregate sum agreed in the resolution, the court without further notice may make and enter an order as authorized by section 16 of article I of the Constitution of North Dakota. If under laws of the United States proceedings for the acquisition of any right of way are required to be instituted in or removed to a federal court, the proceedings may be taken in that court in the same manner and with the same effect as provided in this section and the clerk of the district court of the county in which the right of way is located shall perform any and all of the duties set forth in this section if the clerk is directed to do so by the federal court. The proceedings must be determined as speedily as practicable. An appeal from a judgment in the condemnation proceedings must be taken within sixty days after the entry of the judgment and appeal must be given preference by the supreme court over all other civil cases except election contests. No final judgment in the condemnation proceedings awarding damages to property used by the district for irrigation or other purposes may be vacated or set aside if the district pays to the defendant, or into court for the defendant, the amount awarded in cash. The district may levy special assessments within the district to pay all or part of the judgment. To provide funds for the payment of the judgment or for the deposit of the amount offered for purchase of a right of way, the district may issue bonds on the fund of the improvement district as provided in section 61-24.8-09 in anticipation of the levy and collection of special assessments or revenues to be appropriated to the fund in accordance with this chapter. The bonds may be issued upon or after the commencement of the condemnation proceedings. Upon the failure of the district to make payment in accordance with this section, the judgment in the condemnation proceedings may be vacated.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-07. Improvement districts to be created.

For an improvement project under section 61-24.8-05 and defraying the cost of the project by special assessments, the district may create improvement districts, and may extend any such district when necessary. The special improvement district must be created by resolution. The special improvement district must be directly designated by a name appropriate to the type of improvement for which it is created and by a number distinguishing it from other improvement districts. For examinations or surveys, the board or its employees, after written notice to each landowner, may enter upon any land on which the proposed project is located or any other lands necessary to gain access.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-08. Size and form of improvement districts — Regulations governing.

Any improvement district created by the district may embrace two or more separate property areas. Each improvement district must be of such size and form as to include all properties, which in the judgment of the board, after consultation with the engineer planning the improvement, will be benefited by the construction of the improvement project which is proposed to be made in or for the district, or by any portion of the project. A single district may be created for an improvement of the type specified in section 61-24.8-07, notwithstanding any lack of uniformity among the types, items, or quantities of work and materials to be used at particular locations throughout the improvement district. The jurisdiction of the district to make, finance, and assess the cost of any improvement project may not be impaired by any lack of commonness, unity, or singleness of the location, purpose, or character of the improvement, or by the fact that any one or more of the properties included in the improvement district is subsequently determined not to be benefited by the improvement, or by a particular portion of the improvement project, and is not assessed for that purpose. The board may omit from an improvement district property within the improvement district limits. The board may by resolution enlarge an improvement district in which an improvement is proposed, under construction, or in existence upon receipt of a petition signed by the owners of all of the area to be added to the district.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-09. Engineer’s report required — Contents.

After a special improvement district has been created, the board, if the board determines it necessary to make any of the improvement set out in section 61-24.8-05 in the manner provided in this chapter, shall direct the engineer for the district, or another registered professional engineer, to prepare a report as to the general nature, purpose, and feasibility of the proposed improvement. The engineer shall prepare profiles, plans, and specifications of the proposed project and estimates of the total cost. The estimate of costs prepared by the engineer must include acquisition of right of way and other costs specified in section 61-24.8-19 and must be in sufficient detail to allow the board to determine the probable share of the total costs that will be assessed against each of the affected landowners in the proposed assessment district.

Source:

S.L. 2011, ch. 496, § 2; 2013, ch. 486, § 4.

61-24.8-10. Approval of plans, specifications, and estimates.

After receiving the engineer’s report required by section 61-24.8-09, the board may direct the engineer to prepare detailed plans and specifications for construction of the improvement. The plans and specifications must be certified by a registered professional engineer and must be approved by a resolution of the board.

Source:

S.L. 2011, ch. 496, § 2; 2013, ch. 486, § 5.

61-24.8-11. District engineer to retain copy of plans, specifications, and estimates — Sale of copies.

The engineer acting for the district shall retain a copy of the plans, specifications, and estimates that have been prepared for any improvement. The engineer shall furnish copies at the request of any person at a reasonable cost.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-12. Plans, specifications, and estimates filed in office of district.

The plans, specifications, and estimates prepared as directed under section 61-24.8-10 are the property of the district, must be filed in the district office, and must remain on file subject to inspection by any interested person.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-13. Hearing — Notice — Contents.

  1. Upon the filing of the engineer’s report provided for in section 61-24.8-09, and after satisfying the requirements of section 61-24.8-10, the board shall fix a date and place for public hearing on the proposed project, except when the conditions under subsection 2 are met. The place of hearing must be in the vicinity of the proposed project and must be convenient and accessible for the majority of the landowners subject to assessment for the project or whose property is subject to condemnation for the proposed project. The board may appoint a hearing officer or a committee of the board to conduct the hearing. The board shall cause a complete list of the benefits and assessments to be made, setting forth each lot, piece, or parcel of land assessed, the amount each is benefited by the improvement, and the amount assessed against each. At least fourteen days before the hearing, the board shall file with the county auditor of each county in which the project is or will be located the list showing the percentage assessment and approximate assessment in dollars against each parcel of land benefited by the proposed project. Notices of the hearing must contain the time and place where the board will conduct the hearing. The notice of hearing must specify when and where votes concerning the proposed project may be filed and contain an assessment list showing the percentage assessment and approximate assessment in dollars against each parcel of land benefited by the proposed project. The board shall cause the notice of hearing to be published once a week for two consecutive weeks in newspapers of general circulation in the area in which the affected landowners reside and in the official county newspaper of each county in which the benefited lands are located. The date set for the hearing may not be fewer than fourteen days after the first publication of the notice. A record of the hearing must be made by the board, including a list of affected landowners present in person or by agent, and the record must be preserved in the minutes of the meeting. Affected landowners to be assessed must be informed at the hearing of the probable total cost of the project and their individual share of the cost and the portion of their property, if any, to be condemned for the project.
  2. A public hearing is not required if the board:
    1. Provides written notice to each affected landowner setting forth the probable total cost of the project, the landowner’s share of the project cost, the portion of the landowner’s property, if any, to be condemned for the project, and when and where votes concerning the proposed project may be filed. If the written notice is given to each affected landowner, the assessment list for the proposed project need not be filed with the county auditor of each county in which the project is located; and
    2. Publishes notice of the project in newspapers of general circulation in the area in which the affected landowners reside and in the official county newspaper of each county in which the benefited lands are located at least twenty-one days before the deadline for filing votes on the project.

Source:

S.L. 2011, ch. 496, § 2; 2017, ch. 424, § 4, eff April 19, 2017.

61-24.8-14. Voting on proposed projects.

At the hearing or in the written notice, the affected landowners must be informed when and where votes concerning the proposed project may be filed. Affected landowners to be assessed have thirty days after the date of the hearing or thirty days after the date of mailing the notice to file their votes with the secretary of the district. Once the deadline for filing votes has been reached, no more votes may be filed and no person may withdraw a vote. Any withdrawal of a vote concerning the proposed project before that time must be in writing. When the votes have been filed and the deadline for filing votes has passed, the board shall immediately determine whether the project is approved. If the board finds that one hundred percent of the total votes filed are for the proposed project, then the vote constitutes an affirmation of the project and the board shall issue an order establishing the proposed project and may proceed, after complying with the requirements of sections 61-24.8-17 and 61-24.8-18, to contract or provide for the construction or maintenance of the project in substantially the manner and according to the forms and procedure provided in section 61-24.8-41. The board may enter any agreement with any federal or state agency under the terms of which the contract for the project is to be let by the federal agency, the state agency, or a combination thereof. In projects where there is an agreement that a party other than the board will let the contract, the board may dispense with all of the requirements of section 61-24.8-41. Upon making an order establishing or denying establishment of a project, the board shall publish notice of the order in a newspaper of general circulation in the area in which the affected landowners reside and in the official county newspaper of each county in which the benefited lands are located. No publication is required if the board provides written notice of the order establishing or denying establishment of a project to each affected landowner. Any right of appeal begins to run on the date of publication or mailing of the notice.

Source:

S.L. 2011, ch. 496, § 2; 2017, ch. 424, § 5, eff April 19, 2017.

61-24.8-15. Voting right or powers of landowners.

In order that there may be a fair relationship between the amount of liability for assessments and the power of objecting to the establishment of a proposed project, the voting rights of affected landowners on the question of establishing the project are as provided in this section. The landowner of land affected by the project has one vote for each dollar of assessment to which the land is subject or one vote for each dollar of the assessed valuation of land for which fee title interest will be lost as a result of the project. There may be only one vote for each dollar of assessment, regardless of the number of owners of a tract of land. If more than one owner of a tract of land exists, the votes must be prorated among them in accordance with each owner’s property interest. A written power of attorney authorizes an agent to protest a project on behalf of any affected landowner or landowners.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-16. Assessment of cost of project.

When the board proposes to make any special assessment under this chapter, the board or its agent, before the hearing or the mailing of written notice required under section 61-24.8-13, shall inspect any and all lots and parcels of land that may be subject to assessment and shall determine from the inspection the particular lots and parcels of lands which, in the opinion of the board, will be directly benefited by the construction of the work for which the assessment is made and shall assess the proportion of the total cost of acquiring right of way and constructing and maintaining such improvement in accordance with direct benefits received but not exceeding such benefits against any lot, piece, or parcel of land that is directly benefited by the improvement. Property belonging to the United States is exempt from assessment unless the United States has provided for the payment of any assessment that may be levied against its property for benefits received. There must be attached to the list of assessments a certificate signed by the chairman and certified by the secretary that it is a true and correct assessment of the benefit described to the best of their judgment and stating the several items of expense included in the assessment.

Source:

S.L. 2011, ch. 496, § 2; 2017, ch. 424, § 6, eff April 19, 2017.

61-24.8-17. Assessment list to be published — Notice of hearing — Alteration of assessments — Confirmation of assessment list — Filing.

After entering an order establishing the project, the board shall cause the assessment list to be published once each week for two successive weeks in the official county newspaper of each county in which the benefited lands are located and in local newspapers of general circulation in the area of the affected lands. The publication must include a notice of the time and place the board will meet to hear objections to any assessment by any interested party or an agent or attorney for that party. Publication of the assessment list is not required if the board mails the assessment list and the time and place of the hearing to each affected landowner. The date set for the hearing must be not less than fourteen days after the mailing or first publication of the notice. At the hearing, the board may make such alterations in the assessments as in its opinion may be just and necessary to correct any error in the assessment but must make the aggregate of all assessments equal to the total amount required to pay the entire cost of the work for which the assessments are made or the part of the cost to be paid by special assessment. An assessment may not exceed the benefit as determined by the board to the parcel of land assessed. The hearing is not required if the board receives written consent from each affected landowner to the levy of assessments. The board then shall confirm the assessment list and the secretary shall attach to the list a certificate that it is correct as confirmed by the board. The list must be filed in the office of the district secretary.

Source:

S.L. 2011, ch. 496, § 2; 2017, ch. 424, § 7, eff April 19, 2017.

61-24.8-18. Appeal to department of water resources.

Within ten days after the hearing under section 61-24.8-17, affected landowners subject to assessment, who believe the assessment has not been fairly or equitably made, or the project is not properly located or designed, may petition the department of water resources to review the assessments and examine the location and design of the proposed project. Upon receipt of a petition, the department shall examine the lands assessed and the location and design of the proposed project. If it appears to the department the assessments have not been made equitably, the department may proceed to correct the assessments. The department’s correction and adjustment of assessments is final. If it appears to the department the project has been improperly located or designed, the department may order a relocation and redesign, which must be followed in the construction of the proposed project. Any landowner claiming to receive no direct benefit from the project may appeal to the department the question of whether there is any direct benefit. The appeal must be filed with the department within ten days after the hearing on assessments in section 61-24.8-17. The department may not determine the specific amount of benefit upon an appeal by an individual landowner and may determine only if there is any direct benefit to the landowner. The determination of the department upon the appeal is final.

Source:

S.L. 2011, ch. 496, § 2; 2021, ch. 488, § 178, eff August 1, 2021.

61-24.8-19. When assessments may be made.

After the requirements of this chapter have been satisfied and a contract and bond for any work for which a special assessment is to be levied have been approved by the board, the board may direct special assessments to be levied for the payment of appropriate costs and the secretary shall certify to the board the items of total cost to be paid by special assessments so far as they have been ascertained. The certificate must include the estimated construction cost under the terms of any contract; a reasonable allowance for cost of extra work that may be authorized under the plans and specifications; acquisition of right of way; engineering, fiscal agents, and attorney’s fees for any services in connection with the authorization and financing of the improvement; cost of publication of required notices; printing of improvement bonds; cost necessarily paid for damages caused by such improvement; interest during the construction period; and all expenses incurred in making the improvement and levy of assessments. A contract or contracts may not be awarded which exceed, by twenty percent or more, the estimated cost of the project as presented to and approved by the affected landowners.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-20. Correction of errors and mistakes in special assessments — Requirements governing.

If mathematical errors or other mistakes occur in making any assessment resulting in a deficiency in that assessment, the board shall cause additional assessments to be made in a manner substantially complying with chapter 40-26 as it relates to special assessments.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-21. Lien of special assessment.

A special assessment imposed by the district, with accrued interest and penalties, is a lien upon the property on which the assessment is levied from the time the assessment list is approved by the board until the assessment is fully paid. The liens have precedence over all other liens except general tax liens and may not be divested by any judicial sale. Mistake in the description of the property covered by the special assessment lien or in the name of the owner of such property does not defeat the lien if the assessed property can be identified by the description in the assessment list. This chapter must be considered notice to all subsequent encumbrances of the priority of special assessments imposed under this chapter.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-22. Irrigation improvements in districts — Paid by service charges.

The district constructing an irrigation improvement under the special assessment method may resolve in the resolution required by section 61-24.8-07 that a portion of the cost of the improvement must be raised by service charges for the use of the improvement and of the utility of which it forms a part. If the district so resolves, it may determine in its resolutions, and other proceedings relating to the levying of special assessments and the issuing of bonds to pay the cost of such improvement that a specified portion or all of such special assessments may be reduced each year by the amount of revenues on deposit in the fund required by section 61-24.8-36. All of the applicable provisions of this chapter relating to special assessments are applicable to such improvements except as to the portion of the cost of improvements resolved or ordained to be paid by service charges. The board of the district shall provide for the establishment, imposition, and collection of service charges for the services furnished by the improvement and the utility of which it forms a part, and in that connection it has all the rights and powers respecting such service charges as it would have with respect to like matters if the improvement were made in accordance with sections 61-24-22 through 61-24-32. The net revenues derived from the imposition and collection of the service charges or any portion of the service charges as are determined by the board in the resolutions and ordinances must be paid into the appropriate improvement district funds created under section 61-24.8-36. The revenues when collected must be used and applied in the same manner as moneys paid into such funds from the collection of special assessments. The board in issuing bonds to finance any such improvement in its resolutions may establish an assessment reserve in the fund of the improvement district, to which it may appropriate net revenues of the utility or system from time to time received in excess of amounts required, with special assessments then on hand, to meet the principal and interest next due on the bonds. Before November first of any year, the district may by resolution determine the proportion which the amount then on hand in the assessment reserve, and irrevocably appropriated to the payment of the bond, bears to the aggregate amount of the installment of the special assessments levied for the improvement which is payable in the following year, including interest. The district may direct the auditor to reduce, by not more than a proportionate amount, the total of that installment and interest which would otherwise be placed upon the tax list of the improvement district for the current year against each lot and tract of land assessed or taxed for improvement. If the installment of the special assessment on any property has been prepaid, the board may direct the district to refund, out of the assessment reserve, to the owner of the property at the time of the refund as indicated in the records of the recorder of the county a sum not exceeding a similar proportion of the principal amount of such installment excluding interest.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-23. Abbreviations, letters, or figures.

In all proceedings for the levy and collection of special assessments, abbreviations, letters, and figures may be used to denote all or parts of additions, lots, lands, blocks, sections, townships, ranges, years, days of the month, and amounts of money.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-24. Record of improvements — Record as evidence.

The district office shall keep a complete record of all the proceedings taken in the matter of making any improvements under this chapter. The record must include all reports and confirmations, all petitions, orders, notices and proofs of publication, and resolutions of the board. The record, a certified transcript of the record, or the original papers, proofs of publications, orders, or resolutions on file in the office must be admitted in evidence in any court or place in this state without further proof as evidence of the facts in those documents.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-25. Defects and irregularities in improvement proceedings.

Defects and irregularities in any proceedings had or to be had under this chapter relating to district improvements by the special assessment method, if the proceedings are for a lawful purpose and are unaffected by fraud and do not violate any constitutional limitation or restriction, do not invalidate the proceedings. No action may be commenced or maintained and no defense or counterclaim in any action may be recognized in the courts of this state founded on any such defects or irregularities in the proceedings unless commenced within thirty days of the adoption of the resolution of the board awarding the sale of bonds to finance the improvement.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-26. Payment of special assessments — Interest.

All special assessments levied under this chapter may be paid without interest within ten days after they have been approved by the board and thereafter bear interest at an annual rate not exceeding one and one-half percentage points above the average net annual interest rate on any bonds for the payment of which they are pledged on the total amount remaining unpaid.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-27. Lien between vendor and vendee of special assessments.

As between a vendor and vendee of real property, unless the purchase contract otherwise provides, the installment of all special assessments for local improvements which are required to be certified and returned to the county auditor in each year become a lien upon the real property upon which they are assessed from and after the first day of December in that year.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-28. Irrigation special assessments extended over a period of not more than thirty years.

Special assessments for the payment of the cost of constructing any irrigation works are payable in equal annual amounts, or in such annual amounts as will permit the annual increase in payment of principal to approximate the annual decrease in the interest on amounts remaining unpaid, extending over a period of not exceeding thirty years as the board may fix by resolution.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-29. Payments in full of assessments — Payments to county treasurer or district treasurer — Receipts.

The owner of any property against which an assessment has been made under this chapter for the cost of any improvement may pay in full or in part the amount remaining unpaid and the unpaid accumulated interest. The payment in full discharges the lien of the assessment upon that property. The payment may be made to the county treasurer upon all installments of the assessments which have been certified to the county auditor, and may be made to the district treasurer upon all portions of the assessment which have not been certified. Any person desiring to pay any portion of the assessment to the district treasurer shall obtain from the district treasurer a certificate of the amount due upon the assessment which has not been certified to the county auditor and shall present the certificate to the district treasurer. The district treasurer shall receive and collect that amount and issue a receipt to the person paying the assessment. The district treasurer shall note upon the treasurer’s records the payment of the assessment.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-30. Certification of assessments to county auditor.

When the board, by resolution, has caused special assessments to be levied to cover the cost of constructing a project the board shall determine the rate of interest unpaid special assessments are to bear, which rate may not exceed one and one-half percent above the bond rate. Interest on unpaid special assessments commences on the date the assessments are finally confirmed by the board. Special assessments may be certified and made payable in equal annual installments, the last of which must be due and payable not more than thirty years after the date of the bonds to be paid. The secretary of the district shall certify to the county auditor of the county in which the improvement district is situated, or if the improvement district embraces more than one county to the county auditor of each county in which improvement district lands subject to such special assessments are situated, the total amount assessed against each piece, parcel, lot, or tract of land. The secretary of the district also shall file with the county auditor of each county in which district lands lie a statement showing the cost of the project and the part of the project to be financed by special assessments. Funds needed to pay the cost of maintaining a project may be raised in the same manner as funds were raised to meet construction costs. If the project was financed in whole or in part through the use of special assessments, the board shall prorate the cost of construction. The district treasurer annually shall certify to the county auditor all uncertified installments of assessments which are to be extended upon the tax lists of the improvement district for the current year, in the manner provided in this section. The annual certification must continue until the amount of moneys on deposit in the fund established under section 61-24.8-36 is sufficient to cover outstanding principal of and interest on any obligations issued to fund the projects, and in addition, to repay the district for any payments made by the district to fund deficiencies in the fund established under section 61-24.8-36.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-31. District treasurer to insert amount of improvements in county real estate book or other forms — Regulations governing.

The district treasurer shall notify the county auditor not later than August twentieth in each year of any special assessments that were made in the improvement district in addition to those reported in the previous year. The county auditor shall make and deliver to the district treasurer on or before September twentieth each year a copy of the real estate assessment book or other forms for the current year covering all additions in which any special assessments have existed and where any will appear for the current year as advised by the district treasurer. The district treasurer shall insert in the proper columns under the appropriate headings the amount of each of the installments of the assessments on the lots or subdivisions of lots or tracts of land which are to be extended upon the tax lists of the improvement district for the current year. The district treasurer shall show the total amount of special assessments certified to the county auditor for the current year. If a division of property has been made since the original assessment, the district treasurer shall make or cause to be made the proper division of the special assessments on the lots or tracts of land in the same manner as general taxes are divided and assessed as furnished by the county auditor. The district treasurer shall certify the special assessments to the county auditor by November first of each year.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-32. Extension of special assessments on tax lists — Collection — Payment over to district.

The county auditor shall extend the special assessments upon the improvement tax lists of the district for the current year and the assessments with interest and penalties must be collected as general taxes are collected and paid over to the district treasurer and shall be placed by the district treasurer in the respective funds for which they were collected.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-33. Special assessment record book kept by county auditor — Assessments certified for more than one year.

The county auditor shall keep a special assessment record. When the improvement district causes the installments of special assessments for a period of more than one year to be certified, the county auditor shall cause the certified special assessments to be recorded for the respective years and in the amounts shown in the certificate of the district treasurer. The certificate of the district treasurer must include a list of all lots and tracts of land upon which such assessments are levied, designating the purpose of the assessment, the fund to which it belongs, and the installment of such assessment for each year against each lot or tract, including interest.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-34. County treasurer to certify and receipt for amount of special assessments collected — Contents of certificate — Procedure for abatement.

Special assessments of any kind certified to the county auditor by the district treasurer must be paid to the county treasurer and included in the receipt required by section 57-20-08. If the county treasurer receives less than the full amount of taxes and special assessments due at any time on any lot or tract of real estate, the county treasurer shall allocate the amount of such payment between taxes and special assessments in proportion to the respective amounts of taxes and special assessments which are then due. When prorating any tax payment received before October fifteenth, the term “due”, as it pertains to real estate taxes, includes only the first installment of real estate taxes. Special assessments are not subject to abatement or refund by proceedings under chapter 57-32 but may be reviewed and corrected only in the manner and upon the conditions provided in chapter 40-26. The county treasurer, at the time set by law for the payment to the district treasurer of all the taxes and special assessments collected during the preceding month, shall certify the amounts of special assessments collected. The certificate must state specifically the lot or known subdivision as it appears on the tax books of the county treasurer; the block, addition, amount collected, and amount credited to each lot or known subdivision; and the year for which the sum was collected. The certificate must be furnished to the district treasurer.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-35. Interest and penalties added to special assessments — County treasurer to collect and pay over.

The county treasurer shall add to all special assessments the same interest and penalties that are added in the case of general taxes and at the same time. The county treasurer shall collect the interest and penalties with the special assessments and shall pay all such interest and penalties collected over to the district treasurer.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-36. Special improvement moneys to be kept separate — Designation and numbering of funds — Diversion of moneys prohibited.

All special assessments and taxes levied and other revenues pledged under the provisions of this chapter to pay the cost of an improvement constitute a fund for the payment of that cost, including all principal of and interest on bonds and other obligations issued by the district to finance the improvement, and may be diverted to no other purpose. The district treasurer shall hold all moneys received for any such fund as a special fund to be applied to payment for the improvement. Each fund must be designated by the name and number of the improvement district in or for which the special assessments, taxes, and revenues are collected. When all principal and interest on bonds and other obligations of the fund have been fully paid, all moneys remaining in a fund may be transferred into the general fund of the district. Any deficiency in any fund created for the payment of district bonds payable in whole or in part out of collections of special assessment taxes must be the general obligation of the district.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-37. Bonds — When payable — Amounts — Interest.

At any time after entering a contract for a project to be financed in whole or in part by special assessments, the district may issue temporary and definitive bonds on the project fund created for that purpose in the manner and subject to the limitations prescribed in section 40-24-19. If the bonds are issued to finance an irrigation project, the net revenues derived from the imposition of service charges to be imposed and collected with respect to the project as provided in section 61-24.8-22 may be pledged to payment of those bonds. Bonds issued under this section must be in amounts as in the judgment of the board will be necessary for the project. The bonds must bear interest at a rate or rates and be sold at a price resulting in an average net interest cost not exceeding twelve percent per annum if sold at private sale. There is no interest rate ceiling on bond issues sold at public sale or to the state or any of its agencies or instrumentalities. The bonds must state upon their face the purpose for which they are issued and the project fund from which they are payable and must be signed by the manual or facsimile signature of the chairman of the district board and countersigned by the manual or facsimile signature of the secretary of the district. The bonds must be payable in such amounts as the board determines, extending over a period of not more than thirty years.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-38. Bonds may be used in making payments on contract — Bonds payable out of fund on which drawn — May be used to pay special assessments.

Improvement bonds may be sold for cash at not less than ninety-eight percent of par and accrued interest, and the proceeds, less accrued interest, must be credited to the construction account of the fund and must be used exclusively to pay those contracts and construction costs. Any balance remaining in any construction account after completion of any project must be transferred to the sinking fund account of the assessment fund. The treasurer of the district shall pay special assessment bonds as they mature and are presented for payment out of the fund on which they are drawn and shall cancel the bonds when paid.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-39. Refunding special assessment bonds — Purposes for which such bonds may be issued — Payment of bonds.

Any district having outstanding special assessment bonds, payable in whole or in part out of collections from special assessments, which are past-due or which are redeemable, either at the option of the district or with the consent of the bondholders, may issue refunding special assessment bonds if there is not sufficient money in the project fund against which such bonds are drawn to pay the same. The issuance of refunding bonds must be authorized by resolution of the board. The resolution must describe the bonds to be refunded and their amount and maturity. Refunding bonds may be issued to extend the maturities of bonds payable in whole or in part by special assessments or to reduce the interest on the bonds. Refunding bonds must bear such date, be in such date, be in such denominations, and mature serially within such time, not exceeding thirty years from date of issuance, as the board determines. The treasurer of the district shall pay special assessment bonds as they mature and are presented for payment out of the fund against which they are drawn and shall cancel the bonds when paid.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-40. Foreclosure of tax lien on property when general and special assessment taxes are delinquent.

Special assessments imposed under this chapter become due and delinquent and are subject to penalties for nonpayment at the same date and rates as first installments of real estate taxes at the same time and in the same manner as provided in title 57. If there is no delinquent general property tax against a tract or parcel of land and it is foreclosed for special assessments alone, the notice of foreclosure of tax lien must state that the foreclosure is for special assessments and a tax deed in such case must be issued in the usual course of procedure.

Source:

S.L. 2011, ch. 496, § 2.

61-24.8-41. Contracts for construction or maintenance of project.

If the cost of construction or maintenance of a project does not exceed the amount provided for construction of a public improvement under section 48-01.2-02, the work may be done on a day work basis or a contract may be let without being advertised. If the costs of the construction or maintenance exceed the amount provided for construction of a public improvement under section 48-01.2-02, the board must let a contract in accordance with chapter 48-01.2.

Source:

S.L. 2011, ch. 496, § 2.

CHAPTER 61-25 Reclamation Districts [Repealed]

[Repealed by S.L. 1963, ch. 421, § 22]

CHAPTER 61-26 City Joint Use of Drains

61-26-01. Application for joint drain.

The governing body of any city or the board of commissioners of any water resource district desiring to use an existing drain under the jurisdiction of the county board of drainage commissioners, with or without modification, as a watercourse or channel to provide a water supply for the city or water resource district, may make application therefor to the board of drain commissioners of the county in which such drain is located. In such application there shall be set forth a comprehensive plan of joint use and of any proposed extensions, changes, connecting canals, mains, or other contrivances for conducting the flow of water in, to, or from said drain and an offer of payment by the city or water resource district in a definite sum as a proportionate share of the cost of the existing drain, and a sum certain or a percentage offer for future maintenance costs.

Source:

S.L. 1957, ch. 384, § 1; R.C. 1943, 1957 Supp., § 61-2601; S.L. 1965, ch. 447, § 22.

61-26-02. Hearing on joint drain.

Upon receipt of an application, the board of drain commissioners shall call and give notice of a public hearing, in the manner provided for hearing on a petition to establish a drain, and at such hearing shall receive all evidence and opinions offered for or against the application or of suggested modifications. After such hearing the board of drain commissioners and the governing body of the city or board of commissioners of the water resource district, whichever the case may be, may enter into an agreement for the joint use of such drain setting forth in such agreement the extent, conditions, and nature of permitted use and action, the amount of payment to be made as proportionate share of original cost, and the amount or percentage of costs of future maintenance to be paid by the city or water resource district.

Source:

S.L. 1957, ch. 384, § 2; R.C. 1943, 1957 Supp., § 61-2602; S.L. 1965, ch. 447, § 23.

61-26-03. Payments for city joint drain.

All moneys paid pursuant to such agreement shall be paid into the county treasury and be credited to the drain fund of such drain. In the discretion of the board of drain commissioners, the amount received in payment of proportionate share of original cost of such drain which will not be required for future maintenance of the drain may be paid out to the owners of record, at the time of such payment, of land which was assessed for such drain. Applications for such payments shall be made in the form prescribed by the board of drain commissioners and payments shall be made by the execution and delivery of drain board warrants drawn on the drain fund. The payment to the owner or owners of each tract of land shall be a percentage of the total payment to be made to all the owners equal to the percentage of the cost of the drain which was assessed against such tract of land.

Source:

S.L. 1957, ch. 384, § 3; R.C. 1943, 1957 Supp., § 61-2603.

CHAPTER 61-27 Boating Regulations [Repealed]

[Repealed by S.L. 1973, ch. 202, § 22]

Note.

For present provisions, see N.D.C.C. ch. 20.1-13.

CHAPTER 61-28 Control, Prevention, and Abatement of Pollution of Surface Waters

61-28-01. Statement of policy.

It is hereby declared to be the policy of the state of North Dakota to act in the public interest to protect, maintain, and improve the quality of the waters in the state for continued use as public and private water supplies, propagation of wildlife, fish and aquatic life, and for domestic, agricultural, industrial, recreational, and other legitimate beneficial uses, to require necessary and reasonable treatment of sewage, industrial, or other wastes and to cooperate with other agencies in the state, agencies of other states, and the federal government in carrying out these objectives.

Source:

S.L. 1967, ch. 479, § 1.

Cross-References.

Environmental emergency cost recovery, see N.D.C.C. § 23-31-01.

Notes to Decisions

Purpose of Chapter.

This chapter was enacted to give the state the power to control, prevent, and abate the pollution of surface waters in the state. It gives to the state through its water pollution control board, acting jointly with the state health council, the authority to adopt, amend, or repeal rules, regulations, and standards of quality of the waters of the state, and it fixes penalties for the violation thereof. It does not give to the state ownership sufficient to support a civil action for damages against one who unlawfully pollutes a stream and thus causes the destruction of fish while they are running wild in such water. State by Stuart v. Dickinson Cheese Co., 200 N.W.2d 59, 1972 N.D. LEXIS 127 (N.D. 1972).

Collateral References.

Liability for pollution of stream by oil, water, or the like flowing from well, 19 A.L.R.2d 1025.

Validity and construction of anti-water pollution statutes and ordinances, 32 A.L.R.3d 215.

Validity and construction of statutes, ordinances, or regulations controlling discharge of industrial wastes into sewer system, 47 A.L.R.3d 1224.

Right to maintain action to enjoin public nuisance as affected by existence of pollution control agency, 60 A.L.R.3d 665.

Law Reviews.

Energy Development in the West: Conflict and Coordination of Governmental Decision-making, Michael D. White and Hamlet J. Barry, III, 52 N.D. L. Rev. 451 (1976).

61-28-02. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Council” means the environmental review advisory council.
  2. “Department” means the department of environmental quality.
  3. “Discharge” means the addition of any waste to state waters from any point source.
  4. “Disposal system” means a system for disposing of wastes, either by surface or underground methods, and includes sewerage systems, treatment works, disposal wells, and other systems.
  5. “Person” includes any corporation, limited liability company, individual, partnership, association, or other public or private entity, including any state or federal agency or entity responsible for managing a state or federal facility, and includes any officer or governing or managing body of any such entity.
  6. “Point source” means any discernible, confined, and discrete conveyance, including any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which wastes are or may be discharged.
  7. “Pollution” means the manmade or man-induced alteration of the physical, chemical, biological, or radiological integrity of any waters of the state.
  8. “Septage” means the liquid or solid material removed from septic systems, cesspools, privies, chemical toilets, holding tanks, and similar devices that receive domestic wastewater.
  9. “Septic system” means a disposal system, and all of its components, used to receive, treat, and dispose of domestic wastewater through microbiological decomposition and soil absorption.
  10. “Septic system servicer” means a person that engages in the business of servicing septic systems, cesspools, privies, chemical toilets, holding tanks, and similar devices that receive domestic wastewater.
  11. “Service” or “servicing” means cleaning septic systems, cesspools, privies, chemical toilets, holding tanks, and similar devices that receive domestic wastewater; removing septage from these devices; transporting septage; or disposing septage by applying it to land or otherwise.
  12. “Sewerage system” means pipelines or conduits, pumping stations, and force mains, and all other structures, devices, appurtenances, and facilities used for collecting or conducting wastes to an ultimate point for treatment or disposal.
  13. “Treatment works” means any plant or other works used for the purpose of treating, stabilizing, or holding wastes.
  14. “Wastes” means all substances which cause or tend to cause pollution of any waters of the state, including dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radiological materials, heat, wrecked or discarded equipment, rock, sand, and cellar dirt and industrial, municipal, and agricultural pollution discharged into any waters of the state.
  15. “Waters of the state” means all waters within the jurisdiction of this state, including all streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, and all other bodies or accumulations of water on or under the surface of the earth, natural or artificial, public or private, situated wholly or partly within or bordering upon the state, except those private waters that do not combine or effect a junction with natural surface or underground waters just defined.

Source:

S.L. 1967, ch. 479, § 2; 1969, ch. 554, § 1; 1975, ch. 574, §§ 1, 2, 6, 7; 1989, ch. 757, § 1; 1993, ch. 54, § 106; 1995, ch. 243, § 2; 1997, ch. 521, § 2; 2003, ch. 558, § 1; 2013, ch. 487, §§ 1–4; 2017, ch. 199, §§ 66, 67, eff April 29, 2019.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-28-03. State water pollution prevention agency — Board. [Repealed]

Source:

S.L. 1967, ch. 479, § 3; 1971, ch. 264, § 2; 1973, ch. 501, § 1; 1997, ch. 521, § 3; Repealed by 2017, ch. 199, § 74, eff April 29, 2019.

61-28-04. Powers and duties.

The department shall have and may exercise the following powers and duties:

  1. To exercise general supervision of the administration and enforcement of this chapter and all rules and regulations and orders promulgated thereunder.
  2. To develop comprehensive programs for the prevention, control, and abatement of new or existing pollution of the waters of the state.
  3. To advise, consult, and cooperate with other agencies of the state, the federal government, other states and interstate agencies, and with affected groups, political subdivisions, and industries in furtherance of the purposes of this chapter.
  4. 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 shall not be expended for other than the purposes for which provided.
  5. To encourage, participate in, or conduct studies, investigations, research, and demonstrations relating to water pollution and causes, prevention, control, and abatement thereof as it may deem advisable and necessary for the discharge of its duties under this chapter.
  6. To collect and disseminate information relating to water pollution and the prevention, control, and abatement thereof.
  7. To issue, modify, or revoke orders:
    1. Prohibiting or abating discharges of wastes into the waters of the state.
    2. Requiring the construction of new disposal systems or any parts thereof or the modification, extension, or alteration of existing disposal systems or any parts thereof, or the adoption of other remedial measures to prevent, control, or abate pollution.
  8. To hold such hearings, to issue notices of hearings and subpoenas requiring the attendance of such witnesses and the production of such evidence, to administer such oaths, and to take such testimony as the department deems necessary, and any of these powers may be exercised on behalf of the department by any members thereof or a hearing officer designated by it.
  9. To require the prior submission of plans, specifications, and other data relative to, and to inspect the construction of, disposal systems or any part thereof in connection with the issuance of approvals as are required by this chapter.
  10. To require proper maintenance and operation of disposal systems:
    1. Have the power to require the owner or operator of any point source to:
      1. Establish and maintain records.
      2. Prepare and submit a report.
      3. Install, use, and maintain monitoring equipment or methods, including, where appropriate, biological monitoring methods.
      4. Sample effluents.
      5. Provide such other information as the department may reasonably require.
    2. Have the right of entry, upon or through any premises in which an effluent source is located, or in which any records required to be maintained pursuant to subdivision a are located. Such power may be exercised by authorized agents, representatives, and employees of the department.
    3. Have the power to have access to and copy any records, inspect any monitoring equipment or method required under subdivision a, or to sample any effluents being discharged into the waters of the state.
  11. To exercise all incidental powers necessary to carry out the purposes of this chapter.
  12. The department is hereby designated as the state water pollution control agency for all purposes of the Federal Water Pollution Control Act, as amended [33 U.S.C. 1251 et seq.], and is hereby authorized to take all action necessary or appropriate to secure to this state the benefits of that act and similar federal acts.
  13. In the administration of standards of water quality, the department shall allow a reasonable time for persons discharging wastes into the waters of the state to comply with such standards.
  14. To establish and modify, jointly with the state water commission, the classification of all waters in accordance with their present and future most beneficial uses.
  15. The department, with the cooperation of the state water commission, shall formulate and issue standards of water quality and classification of water according to its most beneficial uses. Such standards of quality shall be such as to protect the public health and welfare and the present and prospective future use of such waters for public water supplies, propagation of fish and aquatic life and wildlife, recreational purposes, and agricultural, industrial, and other legitimate uses.
  16. To adopt effluent and new source performance standards, which include as a minimum all categories for which the federal government has set standards pursuant to the Federal Water Pollution Control Act, as amended. Such state standards shall be at least as stringent as the standards adopted by the federal government.
  17. To review from time to time, at intervals of not more than three years, established classification of waters, water quality standards, and effluent standards.
  18. To make rules governing the application for permits to discharge sewage, industrial wastes, or other wastes into state waters, including rules requiring the filing of plans and specifications relating to the construction, modification, or operation of disposal systems.
  19. To make rules governing the issuance, denial, modification, or revocation of permits.
  20. To hold any hearings necessary for the proper administration of this chapter.
  21. To make rules for the administration of this chapter.
  22. To initiate actions in court for the enforcement of this chapter.
  23. To establish minimum requirements for the treatment of wastes.
  24. The department, with the cooperation of other departments, may maintain an action for damages in the name of the state for violations of the provisions of this chapter.
  25. To apply and enforce against industrial users of publicly owned treatment works, toxic effluent standards and pretreatment standards for the introduction into such treatment works of wastes which interfere with, pass through, or otherwise are incompatible with such treatment works. The department may promulgate such rules and regulations as are necessary to implement this section.
  26. To impose as conditions in permits for the discharge of wastes from publicly owned treatment works requirements for information to be provided by the permittee concerning new introductions of wastes or substantial changes in the volume or character of wastes being introduced into such treatment works.

Source:

S.L. 1967, ch. 479, § 4; 1973, ch. 501, § 2; 1975, ch. 574, §§ 3, 4, 8, 9; 1975, ch. 575, § 1; 1989, ch. 758, § 1.

Cross-References.

Procedure for adoption of administrative rules, see N.D.C.C. §§ 28-32-02 to 28-32-14.

Notes to Decisions

Hearings.

In a dispute regarding the issuance of a North Dakota Pollutant Discharge Elimination System permit, the North Dakota Department of Health complied with the permitting process because, under former N.D.C.C. § 23-01-23, the hearings conducted were not adjudicative proceedings. Further, an arbitrary and capricious standard of review was applicable because there was not an adjudicative proceeding, and the general standard of review of agency’s findings for adjudicative proceedings under N.D.C.C. § 28-32-46 was incompatible with the procedural posture of the case. The Health Department’s decision was entitled to even greater deference than a proceeding after an adjudicative proceeding, and the Health Department’s permitting decision was thus reviewed to determine whether it was arbitrary, capricious, or unreasonable, particularly in light of the fact that the subject matter was complex or technical and involved agency expertise. People to Save the Sheyenne River, Inc. v. N.D. Dep't of Health, 2005 ND 104, 697 N.W.2d 319, 2005 N.D. LEXIS 122 (N.D. 2005).

61-28-04.1. Septic system servicing — Permit required — Inspection authority — Fees.

  1. A person engaging in the business of servicing septic systems must have a permit issued by the department and must comply with the conditions imposed by the permit.
  2. The department shall administer and enforce a permitting program for septic system servicers and has the following powers and duties:
    1. To require training of and to examine septic system servicers and their employees;
    2. To establish standards and procedures for permitting of septic system servicers;
    3. To issue permits to all applicants who satisfy the requirements for certification under this section and any rules under this section, to renew permits, and to suspend or revoke permits for cause after notice and opportunity for hearing;
    4. To establish reasonable fees for permitting septic system servicers, however the department may not establish or charge a permit or renewal fee for a plumber licensed under chapter 43-18 who operates no more than one servicing unit;
    5. To establish criteria for the sanitary management of septage, including standards for the transportation, treatment, and disposal of septage;
    6. To require preapproval of land application sites;
    7. To require recordkeeping and reporting;
    8. To require spill reporting, corrective action, and evidence of financial responsibility; and
    9. To adopt and enforce rules as necessary for implementation of this section.
  3. In adopting its rules the department shall apply different standards based on the size of the septic system servicer, on the type of the service provided, quantity of septage handled, and number of units. The department may not require preapproval of a land application site for an application from a rural single-family residence on property owned or leased by the owner or lessee of the single-family residence.
  4. The department may inspect all septic system servicing activities, including records, equipment, and disposal sites at all reasonable times to ensure compliance with the laws of this state. Nothing in this section removes the duty of any person to comply with applicable public health standards.

Source:

S.L. 2013, ch. 487, § 5; 2017, ch. 425, § 1, eff August 1, 2017.

61-28-05. Rules and standards. [Repealed]

Source:

S.L. 1967, ch. 479, § 5; 1973, ch. 501, § 3; 1997, ch. 521, § 4; Repealed by 2017, ch. 199, § 74, eff April 29, 2019.

61-28-06. Prohibitions.

  1. It shall be unlawful for any person:
    1. To cause pollution of any waters of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any waters of the state; and
    2. To discharge any wastes into any waters of the state or to otherwise cause pollution, which reduces the quality of such waters below the water quality standards established therefor by the department.
  2. It is unlawful for any person to carry on any of the following activities unless the person holds a valid permit for the disposal of all wastes which are, or may be, discharged thereby into the waters of the state:
    1. The construction, installation, modification, or operation of any disposal system or part thereof or any extension or addition thereto without plans and specifications previously approved by the department.
    2. Cause a material increase in volume or strength of any wastes in excess of the permissive discharges specified under existing approved plans.
    3. The construction, installation, or operation of any industrial, commercial, or other establishment or any extension or modification or addition thereof, the operation of which would cause an increase in the discharge of wastes into the waters of the state or would otherwise alter the physical, chemical, or biological properties of any waters of the state in any manner not already lawfully authorized.
    4. The construction or use of any new outlet for the discharge of any wastes into the waters of the state.
  3. Notwithstanding any other provisions of this chapter, and except as in compliance with the provisions of this chapter, and any rules and regulations promulgated hereunder, the discharge of any wastes, or the violation of any water quality standards, by any person shall be unlawful. The department may seek injunctive relief for a threatened or continuing violation of a water quality standard, including any violations of the narrative standards, if the department determines that the violation will substantially interfere with or cause or threaten to cause long-term or irreparable harm to waters of this state that the department determines has statewide or regional significance or has a substantial impact to a local community. The authority to seek injunctive relief for a violation of the water quality standards, including violations of the narrative standards, is limited to the department, after obtaining written approval of the governor, and may not be enforced by any other person.

Source:

S.L. 1967, ch. 479, § 6; 1973, ch. 501, § 4; 1975, ch. 574, § 5; 1989, ch. 758, § 2; 2003, ch. 558, § 2.

Notes to Decisions

Antidegradation Review.

North Dakota Department of Health did not act arbitrarily, capriciously, or unreasonably in deciding that an antidegradation review was not required to modify the permit for the Devils Lake outlet, N.D.C.C. § 61-28-06; there was cause to modify a sulfate limitation in the initial permit and sulfate limits involved a technical area in which the Health Department’s decision was entitled to deference. However, modifications to the TSS (total suspended solids) standard and the period of operation for the permit were arbitrary and capricious as they were based on a change of view following new information and were not corrections of technical errors. People to Save the Sheyenne River, Inc. v. N.D. Dep't of Health, 2008 ND 34, 744 N.W.2d 748, 2008 N.D. LEXIS 19 (N.D. 2008).

61-28-06.1. Fees — Deposit in operating fund.

The department by rule may prescribe and provide for the payment and collection of reasonable fees for the issuance and renewals of permits, licenses, and approvals to discharge sewage, industrial wastes, or other wastes into state waters. The permit fees must be based on the anticipated cost of filing and processing the application, reviewing plans and specifications relating to the construction, modification, or operation of disposal systems, and taking action on the requested permit and conducting a monitoring and inspection program to determine compliance or noncompliance with the permit. Any moneys collected for permit fees must be deposited in the department operating fund in the state treasury and any expenditure from the fund is subject to appropriation by the legislative assembly.

Source:

S.L. 1983, ch. 687, § 1.

61-28-07. Proceedings.

Any proceeding under this chapter for issuance or modification of rules, including emergency orders relating to control of water pollution or for determining compliance with or violation of this chapter, or adoption of any rule or order under this chapter by the department, must be conducted in accordance with chapter 28-32. Any person claiming to be aggrieved or adversely affected by actions taken, or by any rule or order issued under this chapter may request a hearing by the department. There is a right of appeal to the district court from any adverse ruling by the department. Where an emergency exists requiring immediate action to protect the quality of water for legitimate uses and the public health and welfare, the department, without further notice or hearing, may issue an order reciting the existence of the emergency and requiring that such immediate action be taken as is necessary to meet this emergency. Notwithstanding this chapter, the order is effective immediately. Any person to whom the order is directed shall comply immediately, but on application to the department must be afforded a hearing before the department within ten days. On the basis of that hearing, the emergency order must be continued, modified, or revoked within thirty days after the hearing. In the alternative, upon receipt of evidence that a pollution source or combination of sources is presenting an imminent and substantial endangerment to the health of persons or to the welfare of persons where the endangerment to welfare is to the livelihood of those persons, or upon receipt of evidence that pollution causes or threatens to cause a continuing violation of water quality standards in a manner that substantially interferes with or causes long-term or irreparable harm to waters of this state that the department determines has statewide or regional significance or has a substantial impact to a local community, the department may bring suit on behalf of the state in the district court for the county in which the violation is taking place to immediately restrain any person causing or contributing to the alleged pollution to stop the discharge of pollutants causing or contributing to the pollution, or to otherwise enjoin any pollution causing a substantial water quality violation as described in this section, or to take such other action as may be necessary.

Source:

S.L. 1967, ch. 479, § 7; 1973, ch. 501, § 5; 1997, ch. 521, § 5; 2003, ch. 558, § 3.

Notes to Decisions

Hearings.

In a dispute regarding the issuance of a North Dakota Pollutant Discharge Elimination System permit, the North Dakota Department of Health complied with the permitting process because, under former N.D.C.C. § 23-01-23, the hearings conducted were not adjudicative proceedings. Further, an arbitrary and capricious standard of review was applicable because there was not an adjudicative proceeding, and the general standard of review of agency’s findings for adjudicative proceedings under N.D.C.C. § 28-32-46 was incompatible with the procedural posture of the case. The Health Department’s decision was entitled to even greater deference than a proceeding after an adjudicative proceeding, and the Health Department’s permitting decision was thus reviewed to determine whether it was arbitrary, capricious, or unreasonable, particularly in light of the fact that the subject matter was complex or technical and involved agency expertise. People to Save the Sheyenne River, Inc. v. N.D. Dep't of Health, 2005 ND 104, 697 N.W.2d 319, 2005 N.D. LEXIS 122 (N.D. 2005).

61-28-08. Penalties — Injunctions.

  1. Any person who willfully violates this chapter, or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, is subject to a fine of not more than ten thousand dollars per day per violation, or by imprisonment for not more than one year, or both. If the conviction is for a violation committed after a first conviction of such person under this subsection, punishment shall be by a fine of not more than twenty thousand dollars per day per violation, or by imprisonment for not more than two years, or both.
  2. Any person who violates this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, with criminal negligence as defined by section 12.1-02-02, is subject to a fine of not more than ten thousand dollars per day per violation, or by imprisonment for not more than six months, or both.
  3. Any person who knowingly makes any 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 permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, upon conviction, is subject to a fine of not more than five thousand dollars per day per violation or by imprisonment for not more than six months, or both.
  4. Any person who violates this chapter, or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter, is subject to a civil penalty not to exceed twelve thousand five hundred dollars per day per violation.
  5. Without prior revocation of any pertinent permits, the department may, in accordance with the laws of this state governing injunctions or other process, maintain an action in the name of the state against any person to enjoin any threatened or continuing violation of any provision of this chapter or any permit condition, rule, order, limitation, or other applicable requirement implementing this chapter. In addition to any other penalties provided in this section, or other provisions of this code, any person who violates an order for injunctive relief is subject to sanctions, not to exceed twenty-five thousand dollars per day per violation. In determining the amount of the sanction, the court shall consider the seriousness of the violation or violations, any good-faith efforts to comply with the court’s order, any history of such violations, the economic impact of the sanction on the violator, the environmental and economic impacts to the resource caused by the violation or violations, the comparative environmental and economic impacts on any other resources affected, if any, and such other matters as justice may require. As an additional sanction for violating an order, the court may hold the violator in contempt and, upon the state’s motion, may allow a sanction up to the value of any damages that occur to the state as a result of the violation. The authority to seek sanctions under this subsection is limited to the department or to the attorney general bringing an action on behalf of the state and may not be enforced by any other person.

Source:

S.L. 1967, ch. 479, § 8; 1973, ch. 501, § 6; 1999, ch. 240, § 2; 2003, ch. 558, § 4; 2013, ch. 487, § 6.

61-28-09. Water transfers used to control flooding exempt.

  1. An action may not be brought under either chapter 32-40 or 61-28 against an owner or operator of a water transfer used to control flooding for violation of the state’s water pollution control laws if the water transfer:
    1. Does not require a national pollutant discharge elimination system permit; and
    2. Complies with the conditions in the state’s water quality standards established to protect aquatic life.
  2. For purposes of this section, “water transfer” means an activity that conveys or connects waters of the state without subjecting the transferred water to intervening industrial, municipal, or commercial use.
  3. The exemption in subsection 1 does not apply to pollutants introduced by the water transfer activity itself to the water being transferred.
  4. The owner or operator of a water transfer falling within this exemption must notify the department before beginning operations.

Source:

S.L. 2011, ch. 497, § 1.

CHAPTER 61-28.1 Safe Drinking Water Act

61-28.1-01. Declaration of public policy and legislative intent.

The legislative assembly declares it to be the policy of this state that safe supplies of drinking water are essential to the maintenance of public health and welfare. Those persons supplied with water from public water systems must be able to rely with confidence upon the quality of water publicly used for human consumption. Those persons served by public water systems are entitled to regulation of those systems so that they may purchase healthful water, free of harmful contaminants. It is the intention of the legislative assembly that these policies will be fulfilled by the state in accordance with the terms of this chapter and consistent with the provisions of the federal Safe Drinking Water Act of 1974.

Source:

S.L. 1977, ch. 573, § 1.

Cross-References.

Environmental emergency cost recovery, see N.D.C.C. § 23-31-01.

Water system operators, see N.D.C.C. ch. 23-26.

Collateral References.

Liability of water supplier for damages resulting from furnishing impure water, 54 A.L.R.3d 936.

61-28.1-02. Definitions.

As used herein, unless the context or subject matter otherwise requires:

  1. “Contaminant” means any physical, chemical, biological, or radiological substance or matter in water.
  2. “Department” means the department of environmental quality.
  3. “Maximum contaminant level” means the maximum permissible level of contaminant in water which is delivered to any user of a public water system.
  4. “Person” means any individual, corporation, limited liability company, company, association, partnership, or municipality.
  5. “Public water system” means a system for the provision to the public of piped water for human consumption, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals, and includes:
    1. Any collection, treatment, storage, or distribution facilities under control of the operator of such system and used primarily in connection with such system.
    2. Any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system.
  6. “Supplier of water” means any person who owns or operates a public water system.

Source:

S.L. 1977, ch. 573, § 2; 1993, ch. 54, § 106; 1995, ch. 243, § 2; 2017, ch. 199, § 68, eff April 29, 2019.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-28.1-03. Powers and duties of department.

The department may exercise the following powers and shall have the following duties:

  1. Administer and enforce a safe drinking water program pursuant to the provisions of this chapter.
  2. Provide technical assistance on request to public water systems of the state and other persons, and cooperate with appropriate federal agencies.
  3. Advise, consult, and cooperate with other public agencies and with affected groups and industries.
  4. Issue such orders as may be necessary to effectuate the purposes of this chapter and enforce the same by all appropriate administrative and judicial process.
  5. Maintain an inventory of public water systems within the state, which inventory may consist of such information as the department deems necessary.
  6. Conduct sanitary surveys of public water systems within the state.
  7. Adopt rules and regulations relating to maximum contaminant levels, monitoring and analytical requirements and reporting, public notification, and recordkeeping which the department determines are necessary to protect public health and welfare.
  8. Adopt rules and regulations relating to the siting, construction, operation, and modification of public water systems which the department determines are necessary to prevent violation of maximum contaminant levels.
  9. Require the submission of plans, specifications, and such other information as it deems necessary.
  10. Establish a plan for the provision of safe drinking water under emergency circumstances.
  11. Require each supplier of water to keep such records and make such reports to the department as it may deem necessary.
  12. Establish a schedule of fees that may be charged by the department for laboratory tests conducted at the request of any supplier of water. Such fees shall be deposited in the general fund.
  13. Require any supplier of water to notify the users of such public water system of any violations of any provision of this chapter, any regulation, the terms or conditions of any approval, any variance or exemption, or any order issued by the department.
  14. Request and accept grants of funds or services from any federal or state agency, or any other source, public or private, and to administer such grants in accordance with any terms or conditions thereof. Any such grants received shall be used only for the purposes for which they are made.
  15. Designate the department of environmental quality as the state safe drinking water agency for all purposes of the federal Safe Drinking Water Act and is authorized to take all actions necessary and appropriate to secure for the state the benefit of such Act and any grants made thereunder.
  16. Ensure that all new public water systems, excluding those that principally provide service to transients, commencing operation after October 1, 1999, demonstrate technical, managerial, and financial capacity to comply with all rules adopted under this chapter which are in effect, or will be in effect, on the date of commencement of operations.
  17. Develop and implement a strategy to assist all public water systems in acquiring and maintaining technical, managerial, and financial capability to comply with all rules adopted under this chapter.

Source:

S.L. 1977, ch. 573, § 3; 1997, ch. 522, § 1; 2017, ch. 199, § 69, eff April 29, 2019.

61-28.1-04. Approval of water systems.

  1. No person shall construct, install, modify, use, or operate a public water system without prior approval from the department or in violation of the terms of, conditions imposed upon, or order of the department concerning such approval.
  2. The department shall provide for the issuance, suspension, revocation, modification, and renewal of any approval required pursuant to this section.
  3. Approval by the department shall not relieve any person of the responsibility to comply with any requirements of law or any rule or regulation.
  4. The department may provide for the collection of reasonable fees for the approval required pursuant to this section. Such fees shall be deposited in the department operating fund in the state treasury and shall be spent subject to appropriation by the legislative assembly.

Source:

S.L. 1977, ch. 573, § 4; 1983, ch. 688, § 1.

61-28.1-05. Variances and exemptions.

The department may issue variances or exemptions and make rules and regulations governing the issuance, denial, modification, revocation, and suspension of the same to noncomplying water systems. Such variances and exemptions shall be accompanied by a compliance time schedule requiring compliance within such time as the department shall determine.

Source:

S.L. 1977, ch. 573, § 5.

61-28.1-06. Right of onsite inspection.

  1. Any duly authorized officer, employee, or agent of the department may enter and inspect any property, premise, or place on or at which a public water system is located or is being constructed, installed, or established at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and rules and regulations adopted pursuant thereto. If requested by the owner or operator of the premises, a report setting forth all facts found which relate to compliance status shall be forwarded to that owner or operator.
  2. The department may at any reasonable time conduct tests and take samples of water and other materials which affect or may affect maximum contaminant levels at any public water system and shall have the power to have access to and copy any records required by department rules or regulations to be maintained and to inspect any monitoring equipment located on the premises.

Source:

S.L. 1977, ch. 573, § 6.

61-28.1-07. Certification of laboratories. [Repealed]

Source:

S.L. 1977, ch. 573, § 7; 1987, ch. 263, § 29; Repealed by 2019, ch. 217, § 2, eff August 1, 2019.

61-28.1-08. Administrative procedure and judicial review.

Any proceeding under this chapter for:

  1. The issuance or modification of rules and regulations, including emergency orders; or
  2. The determination of compliance with rules and regulations of the department,

shall be conducted in accordance with the provisions of chapter 28-32, and appeals may be taken as therein provided. When an emergency exists requiring immediate action to protect the public health and safety, the department may, without notice or hearing, issue an order reciting the existence of such emergency. Notwithstanding any provision of this chapter, such order shall be effective immediately, but upon application to the department within ten days of such order any person to whom such order is directed shall be afforded a hearing. Such hearing shall be in accordance with chapter 28-32. On the basis of such hearing, the emergency order shall be continued, modified, or revoked, within thirty days after such hearing.

Source:

S.L. 1977, ch. 573, § 8.

61-28.1-09. Injunction proceedings.

The violation of any provision of this chapter, or any rule, regulation, or order issued thereunder, is declared a nuisance inimical to the public health, welfare, and safety. Whenever in the judgment of the department any person has engaged in or is about to engage in any acts or practices which constitute a violation of this chapter, or any rule, regulation, or order issued hereunder, the department may maintain an action in the name of the state enjoining such action or practices or for an order directing compliance and, upon a showing by the department that such person has engaged or is about to engage in any such acts or practices, a permanent or temporary injunction, restraining order, or other order may be granted.

Source:

S.L. 1977, ch. 573, § 9.

61-28.1-10. Enforcement — Penalties — Injunction.

  1. If, after the completion of the administrative hearing process, the department determines that a violation of this chapter, or any rule, regulation, or order of the department issued under this chapter has occurred, it shall make all of its evidence and findings available to the attorney general for use in any remedial action the attorney general’s office determines to be appropriate, including an action for injunctive relief.
  2. Any person who willfully violates this chapter or any regulation or order of the department shall be punished by a civil penalty of not more than ten thousand dollars per day of violation or an administrative penalty as follows:
    1. One thousand dollars per day per violation in the case of a system serving a population of more than ten thousand.
    2. An amount adequate to ensure compliance in the case of any system not under subdivision a.
  3. Any person who violates this chapter, or any rule implementing this chapter, and any person who violates any order issued by the department under this chapter is subject to a civil penalty not to exceed five thousand dollars per day of violation or an administrative penalty as follows:
    1. One thousand dollars per day per violation in the case of a system serving a population of more than ten thousand.
    2. An amount adequate to ensure compliance in the case of any system not under subdivision a.

Nothing in this section shall be construed to deny use of the remedy of injunctive relief when it is deemed appropriate.

Source:

S.L. 1977, ch. 573, § 10; 1991, ch. 706, §§ 1, 2; 1997, ch. 522, § 2.

61-28.1-11. Drinking water treatment revolving loan fund — Purposes — Establishment.

To coordinate funding for public water systems in North Dakota, there is established a drinking water treatment revolving loan fund to be administered by the department. The loan fund is also authorized under section 1452(a) of the federal Safe Drinking Water Act, as amended. Grants from the federal government or its agencies, including the United States environmental protection agency, allotted to the state for the capitalization of the drinking water treatment revolving loan fund, and required state matching funds must be deposited in the drinking water treatment revolving loan fund in compliance with the terms of the grants. The principal of the grants must be available in perpetuity for providing financial assistance as allowed under the Safe Drinking Water Act. To the extent amounts in the revolving loan fund are not required for current obligations or expenditures, these amounts must be invested in interest-bearing obligations.

Source:

S.L. 1997, ch. 522, § 3.

61-28.1-12. Department — Powers and duties — Administration.

The department has the following powers and duties and shall administer the drinking water treatment revolving loan fund as follows:

  1. To apply for and accept grants of money from the United States environmental protection agency or other federal agencies which must be deposited in the drinking water treatment revolving loan fund to be used for purposes authorized under the Safe Drinking Water Act, including the following:
    1. To provide loans or loan guarantees, or other financial assistance, to community water systems and nonprofit noncommunity water systems eligible for assistance from the revolving loan fund.
    2. As a source of revenue and security for the payment of principal and interest on bonds issued by the state through the public finance authority if the bond proceeds are deposited in the revolving loan fund.
    3. To buy or refinance debt obligations issued after July 1, 1993, to finance a project eligible for assistance from the revolving loan fund.
    4. To guarantee or purchase insurance for debt obligations issued to finance a project eligible for assistance from the revolving loan fund.
    5. To provide other financial and technical assistance and to make any other expenditure authorized under the Safe Drinking Water Act.
    6. To earn interest before the disbursement of financial or technical assistance.
    7. To pay administrative expenses associated with the revolving loan fund as authorized under the Safe Drinking Water Act.
  2. To administer the drinking water treatment revolving loan fund as established. The department may enter into contracts and other agreements in connection with the operation of the drinking water treatment revolving loan fund to the extent necessary or convenient for the implementation of the drinking water treatment revolving loan fund. The department may combine the financial administration of the drinking water treatment revolving loan fund and the financial administration of the water pollution control revolving loan fund established under chapter 61-28.2. The department may cross-collateralize the drinking water treatment revolving loan fund and the water pollution control revolving loan fund as authorized by the administrator of the federal environmental protection agency under the Safe Drinking Water Act.
  3. To administer and disburse funds with the approval of the state water commission and in accordance with section 1452(a) of the federal Safe Drinking Water Act [42 U.S.C. 300j], as amended.
  4. To establish assistance priorities and to expend grant funds pursuant to the priority list for the drinking water treatment revolving loan fund, after consulting with and obtaining the approval of the state water commission.
  5. To adopt rules necessary for administering the drinking water treatment revolving loan fund.

The governor may transfer grant funds from the drinking water treatment revolving loan fund to the water pollution control revolving loan fund established by chapter 61-28.2 and from the water pollution control revolving loan fund to the drinking water treatment revolving loan fund, as authorized by the Safe Drinking Water Act.

Source:

S.L. 1997, ch. 522, § 4; 2005, ch. 89, § 33.

CHAPTER 61-28.2 Water Pollution Control Revolving Loan Fund

61-28.2-01. Water pollution control revolving loan fund program — Purposes — Establishment — Capitalization of fund — Disposition of moneys — Administration.

  1. It is the determination of the legislative assembly that the federal funds for the administration and implementation of the federal wastewater construction grants program will decline within the years to come, thereby decreasing the amount of funds that the state will have to operate and carry out the functions that it has been assigned to accomplish. In order to continue to provide funds to political subdivisions for the planning, design, construction, and rehabilitation of wastewater treatment facilities, public water supply systems, and other lawful activities connected with this program, it is the purpose of this section to provide for the establishment of a revolving loan fund to be capitalized by federal grants, matching state funds when required, and by any other funds generated by the operation of the revolving loan fund.
  2. There is established the water pollution control revolving loan fund, which must be maintained and operated by the department of environmental quality. Grants from the federal government or its agencies allotted to the state for the capitalization of the revolving loan fund, and state matching funds when required, must be deposited directly in the revolving loan fund in compliance with the terms of the federal grant. Money in the revolving loan fund must be expended in a manner consistent with terms and conditions of the grants received by the state and may be used to offer loan guarantees; to provide payments to reduce interest on loans and loan guarantees; to make bond interest subsidies; to provide bond guarantees on behalf of municipalities, other local political subdivisions, and intermunicipal or interstate agencies; to provide assistance to a municipality, other local political subdivisions, or intermunicipal or interstate agencies with respect to the nonfederal share of the costs of a project; to finance the cost of facility planning and the preparation of plans, specifications, and estimates for construction of publicly owned treatment works or public water supply systems; to provide financial assistance for the construction and rehabilitation of a project on the state priority list; to secure principal and interest on bonds issued by a public trust having the state of North Dakota as its beneficiary, or the public finance authority if the proceeds of such bonds are deposited in the revolving loan fund and to the extent provided in the terms of the federal grant; to provide for loan guarantees for similar revolving funds established by municipalities, other local political subdivisions, or intermunicipal agencies; to purchase debt incurred by municipalities or other local political subdivisions for wastewater treatment projects or public water supply systems; to improve credit market access by guaranteeing or purchasing insurance or other credit enhancement devices for local obligations or obligations of a public trust having the state of North Dakota as its beneficiary or the public finance authority; to fund other programs which the federal government authorizes by the terms of its grants; to fund the administrative expenses of the department associated with the revolving loan fund; and to provide for any other expenditure consistent with the federal grant program and state law. Money not currently needed for the operation of the revolving loan fund or otherwise dedicated may be invested. All interest earned on investments must be credited to the revolving loan fund.
  3. The department shall administer the revolving loan fund. The department may enter into contracts and other agreements in connection with the operation of the revolving loan fund, including contracts and agreements with federal agencies, political subdivisions, public trusts having the state of North Dakota as beneficiary or the public finance authority, and other parties to the extent necessary or convenient for the implementation of the revolving loan fund program. The department shall maintain full authority for the operation of the revolving loan fund in accordance with applicable federal and state law.
  4. The department has the following powers and duties in regard to the revolving loan fund:
    1. To apply for and accept grants of money from the United States environmental protection agency or other federal agencies for the purpose of making funds available to political subdivisions for the planning, design, construction, and rehabilitation of wastewater treatment facilities, public water supply systems, and other related activities. The department may contract to receive such grants, agree to match the grant in whole or in part when required, and to comply with applicable federal laws and regulations in order to secure the grants. Money received through these grants and state matching funds must be deposited into the water pollution control revolving loan fund or used for appropriate administrative purposes.
    2. To administer the revolving loan fund as established. The department may enter into contracts and other agreements in connection with the operation of the revolving loan fund to the extent necessary or convenient for the implementation of the revolving loan fund program.
    3. To administer and disburse funds in accordance with the federal Clean Water and Safe Drinking Water Acts, as amended.
    4. To adopt rules as necessary to carry out the provisions of this chapter and meet the requirements of the federal Clean Water and Safe Drinking Water Acts, as amended.

Source:

S.L. 1989, ch. 759; 1993, ch. 27, § 15; 1995, ch. 243, § 2; 2005, ch. 89, § 34; 2017, ch. 199, § 70, eff April 29, 2019.

CHAPTER 61-29 Little Missouri State Scenic River Act

61-29-01. Short title.

This chapter may be cited as the Little Missouri State Scenic River Act.

Source:

S.L. 1975, ch. 576, § 1.

Law Reviews.

North Dakota’s Historic Preservation Law, Robert E. Beck, 53 N.D. L. Rev. 177 (1976).

61-29-02. Intent.

The purpose of this chapter shall be to preserve the Little Missouri River as nearly as possible in its present state, which shall mean that the river will be maintained in a free-flowing natural condition, and to establish a Little Missouri River commission.

Source:

S.L. 1975, ch. 576, § 2.

61-29-03. Definitions.

For the purposes of this chapter, unless the context otherwise indicates:

  1. “Free-flowing” shall mean existing or flowing in a natural condition without impoundment, diversion, straightening, or other modification of the waterway.
  2. “Little Missouri River” means the river commencing at the North Dakota-South Dakota state border and terminating at its juncture with Lake Sakakawea, with such juncture defined as the bridge crossing of state highway twenty-two in section thirty-four, range ninety-five west, township one hundred forty-eight north, with boundaries established as the natural channels of the river to the low water mark.

Source:

S.L. 1975, ch. 576, § 3.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-29-04. Administration.

This chapter must be administered by a Little Missouri River commission composed of the director of the parks and recreation department, the director of the department of environmental quality, the director of the department of water resources, or their designated representatives, and one member from each of the following counties: McKenzie, Billings, Slope, Golden Valley, Dunn, and Bowman. The commission members representing the above-mentioned counties must be appointed by their respective boards of county commissioners and shall serve without compensation except that each appointing board of county commissioners may reimburse its county representative for actual and necessary mileage to and from meetings of the commission at the same rate as state officers. The county representatives appointed must be resident landowners who live adjacent to the Little Missouri River with the exception of the Golden Valley County representative. A county representative unable to attend a meeting of the commission may be represented by a person who has a written proxy from the representative authorizing that person to act and vote for the representative. The proxy must be a resident landowner of the county that the proxy is representing, but need not live adjacent to the Little Missouri River. The county members shall serve terms of office as follows: two members shall serve one-year terms, two members shall serve two-year terms, and two members shall serve three-year terms.

Source:

S.L. 1975, ch. 576, § 4; 1989, ch. 760, § 1; 1991, ch. 640, § 38; 1993, ch. 80, § 37; 1995, ch. 243, § 2; 2017, ch. 199, § 71, eff April 29, 2019; 2021, ch. 488, § 179, eff August 1, 2021.

Cross-References.

State engineer serves as chief engineer of state water commission, see N.D.C.C. § 61-03-01.

61-29-05. Powers and duties of commission.

The commission may advise local or other units of government to afford the protection adequate to maintain the scenic, historic, and recreational qualities of the Little Missouri River and its tributary streams. The commission shall also have the power and duties of promulgating management policies to coordinate all activities within the confines of the Little Missouri River when such action is deemed necessary.

Source:

S.L. 1975, ch. 576, § 5.

61-29-06. Management.

Channelization, reservoir construction, or diversion other than for agricultural, recreational, or temporary use purposes and the dredging of waters within the confines of the Little Missouri scenic river and all Little Missouri River tributary streams are expressly prohibited. Flood control dikes may be constructed within the floodplain of the Little Missouri River. Diking and riprapping for bank erosion control shall be permitted within the confines of the Little Missouri scenic river. The construction of impoundments for any purpose on the Little Missouri mainstream shall be prohibited.

This chapter shall in no way affect or diminish the rights of owners of the land bordering the river to use the waters for domestic purposes, including livestock watering, or any other rights of riparian landowners.

Source:

S.L. 1975, ch. 576, § 6; 2017, ch. 19, § 22, eff May 3, 2017.

CHAPTER 61-30 Lake Protection and Rehabilitation [Repealed]

61-30-01. Definitions. [Repealed]

Source:

S.L. 1981, ch. 634, § 1; 1995, ch. 243, § 2; Repealed by 2019, ch. 216, § 5, eff April 29, 2019.

61-30-02. Eligibility and priority. [Repealed]

Source:

S.L. 1981, ch. 634, § 2; Repealed by 2019, ch. 216, § 5, eff April 29, 2019.

61-30-03. Grants. [Repealed]

Source:

S.L. 1981, ch. 634, § 3; Repealed by 2019, ch. 216, § 5, eff April 29, 2019.

61-30-04. Public access. [Repealed]

Source:

S.L. 1981, ch. 634, § 4; Repealed by 2019, ch. 216, § 5, eff April 29, 2019.

61-30-05. Conservation district plan. [Repealed]

Source:

S.L. 1981, ch. 634, § 5; Repealed by 2019, ch. 216, § 5, eff April 29, 2019.

CHAPTER 61-31 Waterbank Program

61-31-01. Rulemaking authority.

The agriculture commissioner is authorized to adopt rules, pursuant to chapter 28-32, to implement this chapter.

Source:

S.L. 1981, ch. 635, § 1; 1985, ch. 665, § 6; 1993, ch. 609, § 1.

61-31-02. Definitions.

In this chapter, unless the context or subject matter otherwise provides:

  1. “Adjacent lands” means lands bordering or within one-fourth mile of the wetland.
  2. “Commissioner” means the agriculture commissioner.
  3. “Landowner” means the person, including a lessee, who has actual use and exclusive possession of the land.
  4. “Participant” means the landowner participating in the program.
  5. “Program” means the state waterbank program.
  6. “State assessment team” means representatives from the department of agriculture, the game and fish department, the department of water resources, the United States department of agriculture’s soil conservation service, and the United States fish and wildlife service.
  7. “Wetlands” means a natural depressional area that is capable of holding shallow, temporary, intermittent, or permanent water. It does not include sheetwater.

Source:

S.L. 1981, ch. 635, § 2; 1991, ch. 231, § 102; 1993, ch. 609, § 2; 2021, ch. 488, § 180, eff August 1, 2021.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-31-03. Waterbank agreements.

The commissioner shall have authority to enter into agreements with landowners for the conservation of wetlands. These agreements shall be entered into for a period of five or ten years, with provision for renewal for additional five-year or ten-year periods. The commissioner shall re-examine the payment rates at the beginning of the fifth year of any ten-year initial or renewal period and before the beginning of any renewal period and, providing that funds are available, make needed adjustments in rates for any initial or renewal period.

Source:

S.L. 1981, ch. 635, § 3; 1993, ch. 609, § 3.

61-31-04. Duties of landowner.

In the agreement between the commissioner and a landowner, the landowner shall agree:

  1. To place in the program for the period of the agreement eligible wetland areas, together with such adjacent areas as determined desirable by the commissioner. These wetlands and adjacent areas may include areas covered by a federal or state government easement which permits agricultural use, except for federal waterbank agreements pursuant to the federal waterbank program [Pub. L. 91-559; 16 U.S.C. 1301 et seq.]. However, in the event that any eligible wetland and adjacent areas are covered by a separate federal or state government easement, the commissioner shall reduce payment rates as appropriate.
  2. Not to drain, burn, fill, or otherwise destroy the wetland character of such areas.
  3. Not to use such areas for agricultural purposes, except as determined by the commissioner.
  4. To effectuate a wetland conservation and development plan for the land in accordance with the terms of the agreement, unless any requirement thereof is waived or modified by the commissioner pursuant to section 61-31-07.
  5. To forfeit all rights to further payments or grants under the agreement and the commissioner may require the landowner to refund to the state all payments or grants received thereunder upon violation of the agreement if the commissioner determines that such violation is of such a nature as to warrant termination of the agreement, or to make refunds or accept such payment adjustments as the commissioner may deem appropriate if the violation does not warrant termination of the agreement.
  6. Upon transfer of the landowner’s right and interest in the lands during the agreement period, to forfeit all rights to further payments or grants under the agreement and the commissioner may require that landowner refund to the state all payments or grants received thereunder unless the transferee of any such land agrees with the commissioner to assume all obligations of the agreement.
  7. To additional provisions which the commissioner determines are desirable and includes in the agreement to effectuate the purposes of the program or to facilitate its administration.

The agreement of the landowner under this chapter shall be made binding on any tenant or operator of the land covered by the agreement.

Source:

S.L. 1981, ch. 635, § 4; 1993, ch. 609, § 4.

61-31-05. Duties of commissioner.

In return for the agreement of the landowner, the commissioner shall:

  1. Make an annual payment to the landowner for the period of the agreement at the rate determined by the commissioner to be fair and reasonable in consideration of the obligations undertaken by the landowner. If the landowner and commissioner agree, all or part of the payments to the landowner may be issued at the onset of the agreement.
  2. Provide advice on conservation and development practices on the wetlands and adjacent areas, and to bear such part of the average cost of establishing and maintaining such practices, as the commissioner determines to be appropriate.
  3. Increase the rate of annual payments by an amount determined by the commissioner to be appropriate, if the landowner agrees to permit, without other compensation, access to such acreage by the general public subject to applicable state law.
  4. Agree that during a drought emergency up to one hundred percent of the grass cover that is part of a waterbank contract may be released to the landowner for haying or grazing, if the portion not released remains in a solid block, and if grazed is protected by an adequate fence, including a temporary electric fence that has been approved by the commissioner. The release date must be determined by the commissioner with the approval of the director of the game and fish department. The landowner may hay or graze released land at a per acre [.40 hectare] rate, established by the commissioner, which must be deducted from the next waterbank payment. If haying or grazing privileges are awarded to any person other than the landowner, the commissioner shall collect for the hay harvested and the landowner is entitled to receive that person’s full waterbank payment.
  5. The commissioner shall assemble a state assessment team that may assist the commissioner in fulfilling the objectives of the program. The state assessment team may make recommendations to the commissioner regarding applications, and develop management guidelines to be approved by the commissioner which include technical and management practices and rates of payment and a standardized priority system for evaluating applications. Applications for the program may be submitted to any representatives of the state assessment team or their agencies to be reviewed and submitted to the commissioner.

Source:

S.L. 1981, ch. 635, § 5; 1991, ch. 231, § 103; 1993, ch. 609, § 5.

61-31-06. Renewal of agreement — Transfer of lands.

Any agreement may be renewed or extended at the end of the agreement period for an additional period of five or ten years by mutual agreement of the commissioner and the landowner, subject to any rate redetermination by the commissioner. If during the agreement period the landowner sells or otherwise divests the ownership or right of occupancy of the land, the new landowner may continue such agreement under the same terms or conditions, or enter into a new agreement in accordance with the provisions of this section, including the provisions for renewal and adjustment of payment rates, or the new landowner may choose not to participate in the program.

Source:

S.L. 1981, ch. 635, § 6.

61-31-07. Termination of agreement.

The commissioner may terminate or amend any agreement by mutual agreement with the landowner if the commissioner determines that the termination would be in the public interest.

Source:

S.L. 1981, ch. 635, § 7; 1993, ch. 609, § 6.

61-31-08. Conservation and development practices.

For the purpose and implementation of wetland conservation and development plans as provided in sections 61-31-04 and 61-31-05, the commissioner has authority to enter into agreements with the director of the game and fish department for any assistance which may be appropriate and which will further the objectives of this chapter.

Source:

S.L. 1981, ch. 635, § 8; 1991, ch. 231, § 104.

61-31-09. Drainage of wetlands. [Repealed]

Repealed by S.L. 1993, ch. 609, § 7.

61-31-10. Authorization for receipt of funds — Continuing appropriation.

The commissioner is authorized to receive funds for this program from any private or public source, and is also authorized to receive any funds from any North Dakota state agency, which have been specifically authorized for that purpose by the legislative assembly. The commissioner shall work with the governor, director of the game and fish department, United States fish and wildlife service, nonprofit conservation organizations, and any other public official or private organization or citizen to develop sources of funding to implement this chapter.

All funds received by the commissioner from any private or public source and from any North Dakota state agency as well as all funds appropriated by the legislative assembly for implementing this chapter must be transferred to a special fund in the state treasury, which is hereby created, to be known as the state waterbank fund. The state waterbank fund and interest earned thereon is hereby appropriated as a standing and continuing appropriation solely for the purpose of implementing this chapter, including payment of money due upon waterbank agreements entered under this chapter.

Source:

S.L. 1981, ch. 635, § 10; 1985, ch. 665, § 7; 1989, ch. 761, § 1; 1991, ch. 231, § 105.

CHAPTER 61-32 Drainage

61-32-01. Legislative policy and intent. [Repealed]

Repealed by S.L. 1995, ch. 599, § 3.

61-32-02. Definitions. [Repealed]

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 department of water resources. The department 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 department may require applications proposing drainage of statewide or interdistrict significance be returned to the department for final approval. A permit may not be granted until an investigation discloses the quantity of water which will be drained from the pond, slough, lake, or sheetwater, or any series of those water bodies, will not flood or adversely affect downstream lands. If the investigation shows 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 department of water resources.

Any person draining, or causing to be drained, a pond, slough, lake, or sheetwater, or any series of those water bodies, 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 department of water resources may adopt rules for temporary permits for emergency drainage.

Source:

S.L. 1987, ch. 642, § 4; 1991, ch. 231, § 107; 1995, ch. 599, § 1; 1997, ch. 523, § 1; 2001, ch. 120, § 1; 2021, ch. 488, § 181, eff August 1, 2021.

DECISIONS UNDER PRIOR LAW

Analysis

Constitutionality.

The wildlife society’s constitutional rights to a fair hearing on its opposition to the issuance of a permit for a drainage project were not disregarded merely because the state engineer performed differing functions during the course of the drainage application process. In re Application for Permits to Drain Related to Stone Creek Channel Improv.etc., 424 N.W.2d 894, 1988 N.D. LEXIS 117 (N.D. 1988).

Apportionment of Damages.

Defendant did not introduce evidence at trial that would have given the trial court a reasonable basis to apportion the damages among various causes. Therefore, his assertion on appeal that liability “should have been limited to a small percentage of the total damages” was insufficient, and the trial court did not err in holding defendant liable for one hundred percent of the damages. Lang v. Wonnenberg, 455 N.W.2d 832, 1990 N.D. LEXIS 104 (N.D. 1990).

Burden of Proof.

The state engineer’s analysis of the burden of proof was not a fatal procedural error regardless of whether he properly placed the beginning burden of going forward with evidence on drainage project opponents, since both opponents and proponents submitted evidence about the effect of the project on water quality, and the state engineer did not place the ultimate burden of persuasion upon opponents, but placed it upon the proponents. In re Application for Permits to Drain Related to Stone Creek Channel Improv.etc., 424 N.W.2d 894, 1988 N.D. LEXIS 117 (N.D. 1988).

Cleaning of Drainway.

Permit was not required for maintaining or restoring a natural drainway to its natural original condition by only cleaning debris and sediment from drainway. Nilson v. Markestad, 353 N.W.2d 312, 1984 N.D. LEXIS 359 (N.D. 1984).

Cumulative Impact.

Neither the statutes nor the regulations specify that the state engineer must consider the cumulative impact of a current project and possible future projects, since requiring the state engineer to study and evaluate all possible contingencies, however remote, would not be feasible or practical. In re Application for Permits to Drain Related to Stone Creek Channel Improv.etc., 424 N.W.2d 894, 1988 N.D. LEXIS 117 (N.D. 1988).

Federal Agency Assistance.

Federal agency’s involvement in drainage project amounted to more than technical assistance and constituted supervision of project, and thus no permit was required under this section, where involvement included: determining feasibility of draining land; preparing drain design; having proposed drainage system reviewed by agency’s area engineer; determining effects of drain on downstream landowners; staking location and grade of drain; overseeing construction of project; and examining completed project for conformity to design specifications. In re Persons, 334 N.W.2d 471, 1983 N.D. LEXIS 288 (N.D. 1983).

Findings of Fact.

Whether a particular pronouncement is a finding of fact or a conclusion of law will be determined by the reviewing court, and labels are not conclusive, therefore, the state engineer’s “conclusion” about the project’s impact on water quality was a finding of fact and was amply supported by evidence. In re Application for Permits to Drain Related to Stone Creek Channel Improv.etc., 424 N.W.2d 894, 1988 N.D. LEXIS 117 (N.D. 1988).

Lack of Evidence of Bias.

The state engineer’s relationship with water resource boards, the state engineer’s deviation from the hearing officer’s recommendation, and the “tone and tenor” of the cross examination of witnesses by the state engineer’s legal counsel during the hearing did not reveal a bias against drainage opponents which precluded fair and impartial consideration of drainage applications. In re Application for Permits to Drain Related to Stone Creek Channel Improv.etc., 424 N.W.2d 894, 1988 N.D. LEXIS 117 (N.D. 1988).

Overriding Circumstances.

The state engineer’s interpretation of “overriding circumstances” justifying drainage of certain wetlands was not contrary to law, where the state engineer determined that the drainage project under consideration would not be effective unless the drain traveled along five type IV wetlands, and that the remaining ten of the wetlands were underlain by “prime farmland.” In re Application for Permits to Drain Related to Stone Creek Channel Improv.etc., 424 N.W.2d 894, 1988 N.D. LEXIS 117 (N.D. 1988).

Public Trust Responsibilities of Engineer.

There was no violation of public trust responsibilities by the state engineer, where the permits for and possible consequences of the improvements and drain had been studied and debated by opponents and proponents for nearly a decade, the state engineer’s decision contained a detailed analysis of the evidence, discussed the potential impacts of the project, and concluded that the drain should be permitted subject to various conditions, some wetlands in the drainage area must be retained at their natural level while others could be drained, and the project and operation plan were subject to future modifications or conditions by the state engineer to protect the public interest. In re Application for Permits to Drain Related to Stone Creek Channel Improv.etc., 424 N.W.2d 894, 1988 N.D. LEXIS 117 (N.D. 1988).

61-32-03.1. Permit to drain subsurface waters required — Permit form — Penalty.

    1. Installation of a subsurface water management system comprising eighty acres [32.37 hectares] of land area or more requires a permit. The watershed area drained by a subsurface water management system may not be used to determine whether the system requires a permit under this section.
    2. Subsurface water management systems that use surface intakes must be permitted exclusively under this section if the system will have a drainage coefficient of three-eighths of an inch [0.95 centimeters] or less. Subsurface water management systems that use surface intakes must be permitted exclusively under section 61-32-03 if the system will have a drainage coefficient exceeding three-eighths of an inch [0.95 centimeters].
    3. Installation of a subsurface water management system comprising less than eighty acres [32.37 hectares] of land area does not require a permit.
    1. The department of water resources shall develop an application form for a permit required under this section. A person seeking to construct a subsurface water management system that requires a permit under this section must submit a completed application to the water resource district board within which is found a majority of the land area for consideration and approval. The water resource district board may charge permit applicants a fee up to one hundred fifty dollars. Water resource districts shall forward copies of all approved permits to the department of water resources.
    2. Upon submission of a completed application for a permit, the water resource district board immediately shall give notice and a copy of the submission via certified mail to each owner of land within one mile [1.61 kilometers] downstream of the proposed subsurface water management system outlet unless the distance to the nearest waterway depicted as a perennial or intermittent stream or river on a United States geological survey topography map, assessment drain, natural watercourse, slough, or lake is less than one mile [1.61 kilometers], in which case notice and a copy of the submission must be given immediately to each owner of land between the outlet and the nearest assessment drain, natural watercourse, slough, or lake. The notice requirement in this section must be waived if the applicant presents signed, notarized letters of approval from all downstream landowners entitled to notice in this subsection.
    1. If the water resource board receives notarized letters of approval from all downstream landowners entitled to notice, the board shall approve the completed permit application as soon as practicable but no later than thirty days after receipt of the last letter. Otherwise, the water resource board shall review the completed application at its next meeting that is at least thirty days after receipt of the application. The board shall consider any written, technical evidence provided by the applicant or a landowner notified under subsection 2 addressing whether the land of a notified landowner will be flooded or unreasonably harmed by the proposed subsurface water management system. For purposes of this section “technical evidence” means written information regarding the proposed subsurface water management system, prepared after consideration of the design and physical aspects of the proposed system, and any adverse hydraulic effects, including erosion, flood duration, crop loss, and downstream water control device operation impacts, which may occur to land owned by a landowner provided under subsection 2. Technical evidence must be submitted to the permit applicant, notified landowners, and the board within thirty days of the receipt of the completed permit application by the board. A notified landowner may not object to the proposed system unless the landowner presents technical evidence under this subsection.
    2. If the board finds, based on technical evidence, the proposed subsurface water management system will flood or unreasonably harm lands of a landowner notified under subsection 2, the board may require the applicant to obtain a notarized letter of approval before issuing a permit for the system. The board may not require a letter of approval for any land downstream of a system that outlets into an assessment drain, natural watercourse, or pond, slough, or lake if notified landowners did not provide technical evidence to the district.
    3. A water resource district may attach reasonable conditions to an approved permit for a subsurface water management system that outlets directly into a legal assessment drain or public highway right of way. For purposes of this subsection, “reasonable conditions” means conditions that address the outlet location, proper erosion control, reseeding of disturbed areas, installation of riprap or other ditch stabilization, and conditions that require all work to be done in a neat and professional manner. Any condition to locate the project a minimum distance from rural water supply lines may not extend beyond an existing easement for lines, or no greater than twenty feet [6.1 meters] from either side of the water line if the rural water line was installed under a blanket easement.
    4. A water resource district may require a subsurface water management system granted a permit under this section to incorporate a control structure at the outlet into the design of the system and may require the control structure be closed during critical flood periods.
    5. A water resource district board may not deny a completed permit application under this section unless the board determines, based on technical evidence submitted by a landowner notified under subsection 2, the proposed water management system will flood or unreasonably harm land of a notified landowner, and a notarized letter of approval required by the board has not been obtained by the applicant. For purposes of this section, “unreasonable harm” is limited to hydraulic impacts, including erosion or other adverse impacts that degrade the physical integrity of a roadway or real property within one mile [1.61 kilometers] downstream of the system’s outlet. The board shall include a written explanation of the reasons for a denial of a completed application and notify, by certified mail, the applicant and all landowners notified under subsection 2 of the approval or denial.
    6. The board may not deny a permit more than sixty days after receipt of the completed application for the permit. If the board fails to deny the permit application within sixty days of receipt, the permit application is deemed approved.
  1. A denial of a completed permit application by a water resource district board may be appealed, under section 28-34-01, to the district court of the county in which the permit application was filed. The court may approve a completed permit application denied by a water resource district board or the department of water resources if the application meets the requirements of this section.
  2. A water resource district board may not be held liable to any person for issuing a permit under this section.
  3. A person that installs a subsurface water management system requiring a permit under this section without first securing the permit is liable for all damages sustained by a person caused by the subsurface water management system.
  4. A person that installs a subsurface water management system requiring a permit under this section without first securing the permit is guilty of an infraction.

Source:

S.L. 2011, ch. 498, § 2; S.L. 2011, ch. 499, § 2; 2017, ch. 420, § 2, eff April 13, 2017; 2019, ch. 512, § 4, eff August 1, 2019; 2021, ch. 488, § 182, eff August 1, 2021.

Note.

Section 61-32-03.1 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 2 of Chapter 490, Session Laws 2021, House Bill 1437; and Section 182 of Chapter 488, Session Laws 2021, House Bill 1353.

61-32-03.1. Permit to drain subsurface waters required — Permit form — Penalty.

  1. Installation of a subsurface water management system comprising eighty acres [32.37 hectares] of land area or more requires a permit. A person that violates this section is guilty of an infraction.
  2. For purposes of this section, a “natural watercourse” includes, in addition to watercourses defined in section 61-01-06, any waterway depicted as a perennial or intermittent stream or river on a United States geological survey topography map.
    1. The state engineer shall develop an application form for a permit required under this section. A person seeking to construct a subsurface water management system shall submit a completed application to the water resource district board within which is found a majority of the land area for consideration and approval. The district board may charge permit applicants a fee up to five hundred dollars. The fee must be paid before the water resource district may approve the application.
      1. A completed application form signed by an applicant and filed with the district;
      2. Evidence of ownership for each parcel to be tiled according to the tax rolls of the county in which the parcel is located;
      3. A project design, including:
        1. A detailed drawing depicting the subsurface water management system’s location overlain on an aerial photograph of the parcel;
        2. The system’s location by legal description identifying either the relevant quarter, section, township, and range or the relevant block and lot number;
        3. The physical footprint of the system’s layout;
        4. The tile-main sizes and locations;
        5. The laterals to the tile-main sizes and locations;
        6. Surface inlet sizes and locations; and
        7. Outlet sizes, locations, and types;
      4. A downstream flow map or depiction of the flow direction from each outlet location for one mile [1.61 kilometers] downstream which includes the location of the downstream parcels by legal description identifying either the relevant quarter, section, township, and range or the relevant block and lot number; and
      5. Evidence of ownership for each parcel within one mile [1.61 kilometers] downstream of each project outlet according to the tax rolls for the county in which the parcel is located, unless the distance to the nearest assessment drain, natural watercourse, slough, or lake is less than one mile [1.61 kilometers] downstream of a proposed outlet, in which case the applicant shall provide evidence of ownership for each parcel between the outlet and the nearest assessment drain, natural watercourse, slough, or lake.
    2. Unless the district notifies an applicant the application is incomplete and provides a list of information required to complete the application within three business days after the day the district receives the application, the application is deemed complete.
    3. Detailed drawings submitted pursuant to subparagraph a of paragraph 3 of subdivision b as part of an application for a permit under this section after May 3, 2021 are exempt records under section 44-04-18 and may be provided to individuals only as necessary to make a decision whether to approve the permit.
  3. A district may attach conditions to an approved permit for a subsurface water management system if the conditions address:
    1. Outlet locations including requirements for pump and control structures to be installed no closer than twenty-five feet [7.62 meters] from the top of the back slope of an assessment drain;
    2. Installation and maintenance of proper erosion control at all outlets;
    3. Re-establishment of disturbed areas to previous conditions;
    4. The minimum distance from rural water supply lines. However, a district may not attach a condition requiring a system to extend beyond an existing easement for a rural waterline, or, if the rural waterline was installed under a blanket easement, requiring a system to extend beyond twenty feet [6.1 meters] from either side of a rural waterline;
    5. Installation and operation of control structures at project outlets including requirements for control structures to be closed or pump outlets to be turned off during critical flood periods;
    6. Requirements for a permittee to obtain an amendment to a permit for alterations to outlet locations, new outlets, or improvements resulting in drainage of additional acres;
    7. If the subsurface water management system will discharge into the watershed area of an assessment drain, inclusion of the relevant property into the assessment district for the assessment drain in accordance with the benefits the property receives, provided the property is not assessed already for the assessment drain. The water resource district may include the new property into the assessment district, and determine the benefits and assessment amounts under chapters 61-21 and 61-16.1, without conducting the reassessment of benefit proceedings under sections 61-21-44 and 61-16.1-26, provided the property is not assessed already for the assessment drain.
    8. Requirements for a permittee to remove silt and vegetation, or repair erosion and scour damages directly caused by the subsurface water management system, up to one mile [1.61 kilometers] downstream from a proposed outlet, unless the distance to the nearest assessment drain, natural watercourse, slough, or lake is less than one mile [1.61 kilometers] downstream of the proposed outlet, in which case the district may require silt and vegetation removal or erosion and scour damage repair between the outlet and the nearest assessment drain, natural watercourse, slough, or lake. For purposes of this subdivision and subdivision i:
      1. Downstream damage repair does not include deepening or widening a road ditch or existing drain;
      2. The timing and method of silt and vegetation removal or damage repair in a county or township road ditch must be preapproved by the appropriate road authority; and
      3. The applicant shall follow any construction site protection requirements of the road authority.
    9. If a downstream landowner or road authority presents substantial evidence a subsurface water management system directly has caused accumulation of silt, vegetation erosion, or scouring, the requirement or authorization of the applicant to remove the silt and vegetation or repair the erosion and scour damages directly caused by the system. However, the applicant may not spread silt, vegetation, or debris along adjoining land without the permission of all parties having a legal interest in the land.
  4. A district shall approve a permit, including any permissible conditions, within thirty days after the district receives the completed application. If the district fails to approve the permit application within that period, the permit is deemed approved with no conditions.
  5. Upon approval of a permit, the district shall forward notice of the approved permit and the downstream flow map to the state engineer and to each landowner who owns property within one mile [1.61 kilometers] downstream of each project outlet according to the tax rolls of the county in which the property is located, unless the distance to the nearest assessment drain, natural watercourse, slough, or lake is less than one mile [1.61 kilometers] downstream of the proposed outlet, in which case the district shall provide notice to landowners with property between the outlet and the nearest assessment drain, natural watercourse, slough, or lake. The district shall send copies of the notice by first - class mail, attested by an affidavit of mailing. The district does not need to provide copies of the permit application under this subsection.
  6. An amendment of a previously approved subsurface water management system permit must be made according to the provisions for approving a permit under this section.
  7. A water resource district board may not be held liable to any person for issuing a permit under this section.
  8. Approval of a permit under this section does not prohibit a downstream party unreasonably damaged by the discharge of water from a subsurface water management system from seeking damages in a civil action.
  9. This section applies only to subsurface water management systems that drain, in whole or in part, platted or unplatted lands used for raising agricultural crops or grazing farm animals.

Subsurface water management systems that use surface intakes or lift stations must be permitted exclusively under this section

.

A completed permit application includes:

Source:

S.L. 2011, ch. 498, § 2; S.L. 2011, ch. 499, § 2; 2017, ch. 420, § 2, eff April 13, 2017; 2019, ch. 512, § 4, eff August 1, 2019; 2021, ch. 488, § 182, eff August 1, 2021; 2021, ch. 490, § 2, eff May 3, 2021.

61-32-03.2 61 — 32 — 03.2. Smaller subsurface water management systems — Notification and conditions — Penalty.

  1. A person may not install a subsurface water management system comprising less than eighty acres [32.37 hectares] of land area until the person has notified the board of the water resource district within which is found a majority of the land area of the system of the following information:
    1. The system’s total acreage and legal description of the land being drained;
    2. The outlet locations and types; and
    3. The flow direction from each outlet location.
  2. A person required to notify the board under subsection 1 shall install the subsurface water management system such that:
    1. Pump and control structures at pump outlets are installed no closer than twenty - five feet [7.62 meters] from the top of the back slope of an assessment drain;
    2. Proper erosion controls are installed and maintained at all outlets; and
    3. Pumps and control structures at project outlets are closed or turned off during critical flood periods.
  3. If a subsurface water management system for which notification is required under subsection will discharge into the watershed area of an assessment drain, the water resource board that receives the notice may require the relevant property to be included in the assessment district for the assessment drain in accordance with the benefits the property receives, provided the property is not assessed already for the assessment drain. The water resource district also may include the property in the assessment district and determine the benefits and assessment amounts under chapters 61 - 21 and 61 - 16.1, without conducting the reassessment of benefit proceedings under sections 61 - 21 - 44 and 61 - 16.1 - 26, provided the property is not assessed already for the assessment drain.
  4. The board of the water resource district within which the subsurface water management system is located may order the system’s owner or operator to bring the system into compliance with subsection 2 if the board finds the system violates that subsection.
  5. A person that violates this section is guilty of an infraction.
  6. This section applies only to subsurface water management systems that drain, in whole or in part, platted or unplatted lands used for raising agricultural crops or grazing farm animals.
  7. This section does not apply to a subsurface water management system that discharges into a body of water completely encompassed by land owned by the person that owns the land drained by the system.
  8. The information that must be provided to a board of a water resource district under this section is an exempt record under section 44 - 04 - 18.

Source:

S.L. 2021, ch. 490, § 3, eff May 3, 2021.

61-32-04. Administration — Rulemaking authority — Guidelines. [Repealed]

Repealed by S.L. 1995, ch. 599, § 3.

61-32-05. Wetlands bank. [Repealed]

Repealed by S.L. 1995, ch. 599, § 3.

61-32-06. Uniform wetlands classification. [Repealed]

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.

Source:

S.L. 1987, ch. 642, § 8; 1989, ch. 83, § 35; 1991, ch. 707, § 1; 1995, ch. 599, § 2; 1999, ch. 540, § 5; 2013, ch. 482, § 8; 2013, ch. 484, § 3.

Notes to Decisions

Evidence.

Where the evidence showed that water from a drain the defendant re-dug in 1994 was flooding the plaintiff’s farm, the County Water Resource Board did not act arbitrarily, capriciously or unreasonably in finding the drain caused damage to the plaintiff’s property. Graber v. Logan County Water Resource Bd., 1999 ND 168, 598 N.W.2d 846, 1999 N.D. LEXIS 190 (N.D. 1999).

61-32-08. Appeal of board decisions — Department of water resources 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 department of water resources. The appeal to the department 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 department, and the notice must specify the reason why the board’s decision is erroneous. The appealing party also shall 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 department shall handle the appeal by conducting an independent investigation and making an independent determination of the matter. The department may enter property affected by the complaint to investigate the complaint.
  2. 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 department of water resources within one hundred fifty days of the submittal date of the original complaint. The department, without reference to chapter 28-32, shall cause the investigation and determination to be made, either by action against the board or by conducting the investigation and making the determination.
  3. If the department of water resources determines 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 department shall take one of three actions:
    1. Notify the landowner by certified mail at the landowner’s post-office address of record;
    2. Return the matter to the jurisdiction of the board along with the investigation report; or
    3. Forward the drainage complaint and investigation report to the state’s attorney.
  4. If the department of water resources decides to notify the landowner, the notice must specify the nature and extent of the noncompliance and state if the drain, lateral drain, or ditch is not closed or filled within a reasonable time as determined by the department, but not less than thirty days, the department 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 department must state the affected landowner may demand in writing, within fifteen days of the date the notice is mailed, a hearing on the matter. Upon receipt of the demand, the department shall set a hearing date within fifteen days from the date the demand is received. If, in the opinion of the department, 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 department 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 department under this section may appeal the decision of the department to the district court under chapter 28-32. A hearing by the department under this section is a prerequisite to an appeal.
  5. If the department of water resources, 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 department’s decision under this section.
  6. If the department of water resources, 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 be forwarded and 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.
  7. 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 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.

Source:

S.L. 1987, ch. 642, § 9; 2013, ch. 484, § 4; 2015, ch. 473, § 3, eff August 1, 2015; 2021, ch. 488, § 183, eff August 1, 2021.

61-32-09. Wetlands replacement fund — Continuing appropriation. [Repealed]

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.

Source:

S.L. 1987, ch. 642, § 11.

61-32-11. Application of prior law. [Repealed]

Repealed by S.L. 1995, ch. 599, § 3.

CHAPTER 61-33 Sovereign Land Management

61-33-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the sovereign lands advisory board.
  2. “Board of university and school lands” means that entity created by section 15-01-01.
  3. “Navigable waters” means waters that were in fact navigable at the time of statehood, and that are used, were used, or were susceptible of being used in their ordinary condition as highways for commerce over which trade and travel were or may have been conducted in the customary modes of trade on water.
  4. “Ordinary high water mark” means that line below which the presence and action of the water upon the land is continuous enough so as to prevent the growth of terrestrial vegetation, destroy its value for agricultural purposes by preventing the growth of what may be termed an ordinary agricultural crop, including hay, or restrict its growth to predominantly aquatic species.
  5. “Sovereign lands” means those areas, including beds and islands, lying within the ordinary high water mark of navigable lakes and streams. Lands established to be riparian accretion or reliction lands pursuant to section 47-06-05 are considered to be above the ordinary high water mark and are not sovereign lands.

Source:

S.L. 1989, ch. 552, § 3; 1991, ch. 708, § 1; 2019, ch. 513, § 1, eff August 1, 2019; 2019, ch. 514, § 1, eff May 2, 2019; 2021, ch. 488, § 184, eff August 1, 2021.

Note.

Section 9 of chapter 514, S.L. 2019 provides, “ APPLICATION. Sections 1 and 2 of this Act do not apply to the ordinary high water mark study required for the historical Missouri riverbed channel in chapter 61-33.1. This Act does not affect or limit the authority of the state engineer to regulate waters of this state.”

61-33-01.1 Ordinary high water mark determination — Factors to be considered.

The department of water resources shall maintain ordinary high water mark delineation guidelines consistent with this section.

  1. When determining the ordinary high water mark for delineating the boundary of sovereign lands, vegetation and soils analysis must be considered the primary physical indicators. When considering vegetation, the ordinary high water mark is the line below which the presence and action of the water is frequent enough to prevent the growth of terrestrial vegetation or restrict vegetation growth to predominately aquatic species. Generally, land, including hay land, where the high and continuous presence of water has destroyed the value of the land for agricultural purposes must be deemed within the ordinary high water mark.
  2. When feasible, direct hydrological and hydraulic measurements from stream gauge data, elevation data, historic records of water flow, high resolution light detection and ranging systems, prior elevation and survey maps, and statistical hydrological evidence must be considered when determining the ordinary high water mark. The department of water resources shall establish appropriate guidelines, technical standards, and other criteria, including use of light detection and ranging systems or other future technological advancements, as necessary, for conducting hydrologic and hydraulic modeling required by this section.
  3. Secondary physical indicators, including litter, debris, or staining, may be considered to supplement the analysis of the ordinary high water mark investigation but may not supersede primary physical indicators unless primary physical indicators are deemed inadequate or inconclusive. Physical indicators directly affected by influent non-navigable tributaries, adjoining water bodies, or wetlands may not be used to delineate the sovereign land boundary of a navigable body of water.

Source:

S.L. 2019, ch. 514, § 2, eff May 2, 2019; 2021, ch. 488, § 185, eff August 1, 2021.

Note.

Section 9 of chapter 514, S.L. 2019 provides, “ APPLICATION. Sections 1 and 2 of this Act do not apply to the ordinary high water mark study required for the historical Missouri riverbed channel in chapter 61-33.1. This Act does not affect or limit the authority of the state engineer to regulate waters of this state.”

61-33-02. Administration of sovereign lands.

All sovereign lands of the state must be administered by the department of water resources and the board of university and school lands subject to the provisions of this chapter. Lands managed pursuant to this chapter are not subject to leasing provisions found elsewhere in this code.

Source:

S.L. 1989, ch. 552, § 3; 2021, ch. 488, § 186, eff August 1, 2021.

61-33-03. Transfer of possessory interests in real property.

All possessory interests now owned or that may be acquired except oil, gas, and related hydrocarbons, in the sovereign lands of the state owned or controlled by the state or any of its officers, departments, or the Bank of North Dakota, together with any future increments, are transferred to the state of North Dakota, acting by and through the director of the department of water resources. All possessory interests in oil, gas, and related hydrocarbons in the sovereign lands of the state are transferred to the state of North Dakota, acting by and through the board of university and school lands. These transfers are self-executing. No evidence other than the provisions of this chapter is required to establish the fact of transfer of title to the state of North Dakota, acting by and through the director of the department of water resources and board of university and school lands. Proper and sufficient delivery of all title documents is conclusively presumed.

Source:

S.L. 1989, ch. 552, § 3; 2021, ch. 488, § 187, eff August 1, 2021.

61-33-04. Existing contracts and encumbrances recognized.

The transfers made by this chapter are subject to all existing contracts, rights, easements, and encumbrances made or sanctioned by the state or any of its officers or departments.

Source:

S.L. 1989, ch. 552, § 3.

61-33-05. Duties and powers of the department of water resources.

The department of water resources shall manage, operate, and supervise all properties transferred to it by this chapter; may enter into any agreements regarding the property; may enforce all rights of the owner in its own name; may issue and enforce administrative orders and recover the cost of the enforcement from the party against which enforcement is sought; and may make and execute all instruments of release or conveyance as may be required pursuant to agreements made with respect to the assets, whether the agreements were made before or after this section was enacted. The department of water resources may enter agreements with the game and fish department or other law enforcement entities to enforce this chapter and rules adopted under this chapter.

Source:

S.L. 1989, ch. 552, § 3; 2007, ch. 560, § 3; 2021, ch. 488, § 188, eff August 1, 2021.

61-33-05.1. Navigability determinations.

  1. Before making a determination that a body of water or portion of a body of water is navigable, the department of water resources shall:
    1. Develop and deliver to the state water commission a preliminary finding regarding the navigability of the body of water or portion of a body of water and the legal rationale for the preliminary finding; and
    2. Consult with the state water commission in an open meeting and demonstrate the public need and purpose for the determination to be made.
  2. After completing the requirements of subsection 1, the department of water resources may proceed with making a final determination of navigability by:
    1. Providing reasonable public notice of the preliminary finding, legal rationale for the preliminary finding, and opportunity for the public to provide comments for no less than sixty days. The notice must:
      1. Include the address and electronic mail address to which public comments may be sent and the deadline by which public comments must be received;
      2. Clearly identify the specific body of water or portion of a body of water for which the finding of navigability is sought;
      3. State the department will hold a public hearing regarding the preliminary finding before a final determination of navigability is made, and provide the date, time, and location of the public hearing;
      4. Be provided to the governing body of each soil conservation district, water resource district, and county adjacent to the body of water or portion of a body of water for which the preliminary finding was made;
      5. Be published in the official county newspaper for each county adjacent to the body of water or portion of a body of water for which the preliminary finding was made; and
      6. Briefly state the purpose of the hearing and describe the impact or effect a determination of navigability will have on the property rights of persons who own property adjacent to the body of water or portion of a body of water for which the determination of navigability may be made; and
    2. Holding a public hearing regarding the preliminary finding.
  3. After completing the requirements of subsection 2 and making a determination of navigability, the department of water resources shall prepare a report regarding the determination, including summaries of the information provided to the state water commission, the public hearings held, and the public comments received. The department shall provide the report to the state water commission, send the report by certified mail to any person that appeared at the public hearing required under subsection 2 or provided written comments by the deadline, make the report available to the public, including on the website for the office of the secretary of state, and provide public notice of the report’s availability. The report is final on the date it is provided to the state water commission.
  4. A determination of navigability may be appealed directly to a court of competent jurisdiction in accordance with sections 28-32-42 through 28-32-46 and sections 28-32-50 and 28-32-51.

Source:

S.L. 2019, ch. 513, § 2, eff August 1, 2019; 2021, HB1353, § 189, eff August 1, 2021.

61-33-06. Duties and powers of the board of university and school lands.

The board of university and school lands shall manage, operate, and supervise all properties transferred to it by this chapter; may enter into any agreements regarding such property; may enforce all subsurface rights of the owner in its own name; and may make and execute all instruments of release or conveyance as may be required pursuant to agreements made with respect to such assets, whether such agreements were made heretofore, or are made hereafter.

Source:

S.L. 1989, ch. 552, § 3.

61-33-07. Deposit of income.

All income derived from the lease and management of the lands acquired by the department of water resources and board of university and school lands pursuant to this chapter and not belonging to other trust funds must be deposited in the strategic investment and improvements fund.

Source:

S.L. 1989, ch. 552, § 3; 2011, ch. 483, § 10; 2021, ch. 488, § 190, eff August 1, 2021.

61-33-08. Advisory board — Responsibilities.

There is created a sovereign lands advisory board. The board’s responsibility is to advise the department of water resources and the board of university and school lands on general policies as well as specific projects, programs, and uses regarding sovereign lands. The board, being solely advisory, has no authority to require the department of water resources or the board of university and school lands to implement or otherwise accept the board’s recommendations.

Source:

S.L. 1989, ch. 552, § 3; 2021, ch. 488, § 191, eff August 1, 2021.

61-33-09. Members of the board — Organization — Meetings.

  1. The board consists of the manager of the Garrison Diversion Conservancy District, the director of the department of water resources, the commissioner of university and school lands, the director of the parks and recreation department, the director of the game and fish department, and the director of the department of environmental quality, or their representatives.
  2. The director of the department of water resources is the board’s secretary.
  3. The board shall meet at least once a year or at the call of the director of the department of water resources or two or more members of the board. The board shall meet at the office of the director of the department of water resources or any other place decided upon by the board.
  4. The board may adopt rules to govern its activities.

Source:

S.L. 1989, ch. 552, § 3; 1991, ch. 231, § 112; 1991, ch. 640, § 39; 1993, ch. 80, § 38; 1995, ch. 600, § 1; 2017, ch. 199, § 72, eff April 29, 2019; 2021, ch. 488, § 192, eff August 1, 2021.

61-33-10. Penalty.

A person who violates this chapter or any rule implementing this chapter is guilty of a class B misdemeanor unless a lesser penalty is indicated. A civil penalty may be imposed by a court in a civil proceeding or by the department of water resources through an adjudicative proceeding pursuant to chapter 28-32. The assessment of a civil penalty does not preclude the imposition of other sanctions authorized by law, this chapter, or rules adopted under this chapter. The department of water resources may bring a civil action to recover damages resulting from violations and may also recover any costs incurred.

Source:

S.L. 2007, ch. 560, § 4; 2021, ch. 488, § 193, eff August 1, 2021.

CHAPTER 61-33.1 State Ownership of Missouri Riverbed

§ 61-33.1-02. Mineral ownership of land subject to inundation by Pick-Sloan Missouri basin project dams. [Retroactive application — See note]

§ 61-33.1-04. Implementation. [Retroactive application — See note]

§ 61-33.1-05. Actions challenging review findings or final acreage determinations. [Retroactive application — See note]

§ 61-33.1-07. Department of water resources regulatory jurisdiction. (Retroactive application — See note)

61-33.1-01. Definitions. [Retroactive application — See note]

For purposes of this chapter, unless the context otherwise requires:

  1. “Corps survey” means the last known survey conducted by the army corps of engineers in connection with the corps’ determination of the amount of land acquired by the corps for the impoundment of Lake Sakakawea and Lake Oahe, as supplemented by the supplemental plats created by the branch of cadastral survey of the United States bureau of land management.
  2. “Historical Missouri riverbed channel” means the Missouri riverbed channel as it existed upon the closure of the Pick-Sloan Missouri basin project dams, and extends from the Garrison Dam to the southern border of sections 33 and 34, township 153 north, range 102 west which is the approximate location of river mile marker 1,565, and from the South Dakota border to river mile marker 1,303.
  3. “Segment” means the individual segment maps contained within the corps survey final project maps for the Pick-Sloan project dams.
  4. “State phase two survey” means the “Ordinary High Water Mark Survey Task Order #2 Final Technical Report” commissioned by the board of university and school lands.

Source:

S.L. 2017, ch. 426, § 1, eff April 21, 2017.

Note.

Section 4 of chapter 426, S.L. 2017, provides, “ RETROACTIVE APPLICATION . Section 1 of this Act is retroactive to the date of closure of the Pick-Sloan Missouri basin project dams. The ordinary high water mark determination under this Act is retroactive and applies to all oil and gas wells spud after January 1, 2006, for purposes of oil and gas mineral and royalty ownership.”

Notes to Decisions

Applicability.

Because the subject property over which mineral rights were disputed was located within the defined geographic area, as a matter of law, the chapter applied and governed the ownership of the property. Furthermore, the successors-in-interest’s property was above the ordinary high water mark of the historical Missouri riverbed channel and, therefore, was not State of North Dakota sovereign lands, so that the State did not have a claim to the property outside of the acreage determination. Wilkinson v. Bd. of Univ. & Sch. Lands of N.D., 2020 ND 179, 947 N.W.2d 910, 2020 N.D. LEXIS 188 (N.D. 2020).

Public Trust Doctrine.

N.D.C.C. § 61-33.1-01 et seq., did not offend the public trust doctrine because the state public trust interest was superseded by a federal interest. Sorum v. State, 2020 ND 175, 947 N.W.2d 382, 2020 N.D. LEXIS 176 (N.D. 2020), cert. denied, — U.S. —, 141 S. Ct. 1389, 209 L. Ed. 2d 129, 2021 U.S. LEXIS 820 (U.S. 2021).

Watercourses Clause.

N.D.C.C. § 61-33.1-01 et seq., did not offend the watercourses clause because the watercourse at issue was not navigable at the time the North Dakota Constitution was adopted. Sorum v. State, 2020 ND 175, 947 N.W.2d 382, 2020 N.D. LEXIS 176 (N.D. 2020), cert. denied, — U.S. —, 141 S. Ct. 1389, 209 L. Ed. 2d 129, 2021 U.S. LEXIS 820 (U.S. 2021).

N.D.C.C. § 61-33.1-01 et seq., did not offend N.D. Const. art. I, §§ 22 and 23 because the statutory scheme did not create a classification. Sorum v. State, 2020 ND 175, 947 N.W.2d 382, 2020 N.D. LEXIS 176 (N.D. 2020), cert. denied, — U.S. —, 141 S. Ct. 1389, 209 L. Ed. 2d 129, 2021 U.S. LEXIS 820 (U.S. 2021).

61-33.1-02. Mineral ownership of land subject to inundation by Pick-Sloan Missouri basin project dams. [Retroactive application — See note]

The state sovereign land mineral ownership of the riverbed segments subject to inundation by Pick-Sloan Missouri basin project dams extends only to the historical Missouri riverbed channel up to the ordinary high water mark. The state holds no claim or title to any minerals above the ordinary high water mark of the historical Missouri riverbed channel subject to inundation by Pick-Sloan Missouri basin project dams, except for original grant lands acquired by the state under federal law and any minerals acquired by the state through purchase, foreclosure, or other written conveyance. Mineral ownership of the riverbed segments subject to inundation by Pick-Sloan Missouri basin project dams which are located within the exterior boundaries of the Fort Berthold reservation and Standing Rock Indian reservation is controlled by other law and is excepted from this section.

Source: S.L. 2017, ch. 426, § 1, eff April 21, 2017; 2019, ch. 514, § 3, eff May 2, 2019.

Note.

Section 4 of chapter 426, S.L. 2017, provides, “ RETROACTIVE APPLICATION . Section 1 of this Act is retroactive to the date of closure of the Pick-Sloan Missouri basin project dams. The ordinary high water mark determination under this Act is retroactive and applies to all oil and gas wells spud after January 1, 2006, for purposes of oil and gas mineral and royalty ownership.”

Notes to Decisions

Applicability.

Because the subject property over which mineral rights were disputed was located within the defined geographic area, as a matter of law, the chapter applied and governed the ownership of the property. Furthermore, the successors-in-interest’s property was above the ordinary high water mark of the historical Missouri riverbed channel and, therefore, was not State of North Dakota sovereign lands, so that the State did not have a claim to the property outside of the acreage determination. Wilkinson v. Bd. of Univ. & Sch. Lands of N.D., 2020 ND 179, 947 N.W.2d 910, 2020 N.D. LEXIS 188 (N.D. 2020).

Retroactivity.

Remand was warranted to determine ownership of the mineral interests as N.D.C.C. ch. 61-33.1 applied retroactively, and the district court had not had an opportunity to consider the statute in deciding ownership of the disputed minerals. Wilkinson v. Bd. of Univ. & Sch. Lands, 2017 ND 231, 903 N.W.2d 51, 2017 N.D. LEXIS 235 (N.D. 2017).

61-33.1-03. Determination of the ordinary high water mark of the historical Missouri riverbed channel. [Retroactive application — See note]

  1. The corps survey must be considered the presumptive determination of the ordinary high water mark of the historical Missouri riverbed channel, subject only to the review process under this section and judicial review as provided in this chapter.
  2. Effective April 21, 2017, the department of mineral resources shall commence procurement to select a qualified engineering and surveying firm to conduct a review of the corps survey under this section. The review must be limited to the corps survey segments from the northern boundary of the Fort Berthold Indian reservation to the southern border of sections 33 and 34, township 153 north, range 102 west. Within ninety days of the first date of publication of the invitation, the department shall select and approve a firm for the review. The department may not select or approve a firm that has a conflict of interest in the outcome of the review, including any firm that has participated in a survey of the Missouri riverbed for the state or a state agency, or participated as a party or expert witness in any litigation regarding an assertion by the state of mineral ownership of the Missouri riverbed.
  3. The selected and approved firm shall review the delineation of the ordinary high water mark of the corps survey segments. The review must determine whether clear and convincing evidence establishes that a portion of the corps survey does not reasonably reflect the ordinary high water mark of the historical Missouri riverbed channel under state law. The following parameters, historical data, materials, and applicable state laws must be considered in the review:
    1. Aerial photography of the historical Missouri riverbed channel existing before the closure date of the Pick-Sloan project dams;
    2. The historical records of the army corps of engineers pertaining to the corps survey;
    3. Army corps of engineers and United States geological survey elevation and Missouri River flow data;
    4. State case law regarding the identification of the point at which the presence of action of the water is so continuous as to destroy the value of the land for agricultural purposes, including hay lands. Land where the high and continuous presence of water has destroyed its value for agricultural purposes, including hay land, generally must be considered within the ordinary high water mark. The value for agricultural purposes is destroyed at the level where significant, major, and substantial terrestrial vegetation ends or ceases to grow. Lands having agricultural value capable of growing crops or hay, but not merely intermittent grazing or location of cattle, generally must be considered above the ordinary high water mark; and
    5. Section 61-33-01 and section 47-06-05, which provide all accretions are presumed to be above the ordinary high water mark and are not sovereign lands. Accreted lands may be determined to be within the ordinary high water mark of the historical Missouri riverbed channel based on clear and convincing evidence. Areas of low-lying and flat lands where the ordinary high water mark may be impracticable to determine due to inconclusive aerial photography or inconclusive vegetation analysis must be presumed to be above the ordinary high water mark and owned by the riparian landowner.
  4. The firm shall complete the review within six months of entering a contract with the department of mineral resources. The department may extend the time required to complete the review if the department deems an extension necessary.
  5. Upon completion of the review, the firm shall provide its findings to the department. The findings must address each segment of the corps survey the firm reviewed and must include a recommendation to either maintain or adjust, modify, or correct the corps survey as the delineation of the ordinary high water mark for each segment. The firm may recommend an adjustment, modification, or correction to a segment of the corps survey only if clear and convincing evidence establishes the corps survey for that segment does not reasonably reflect the ordinary high water mark of the historical Missouri riverbed channel under state law.
  6. The department shall publish notice of the review findings and a public hearing to be held on the findings. The public must have sixty days after publication of the notice to submit comments to the department. At the end of the sixty days, the department shall hold the public hearing on the review.
  7. After the public hearing, the department, in consultation with the firm, shall consider all public comments, develop a final recommendation on each of the review findings, and deliver the final recommendations to the industrial commission, which may adopt or modify the recommendations. The industrial commission may modify a recommendation from the department only if it finds clear and convincing evidence from the resources in subsection 3 that the recommendation is substantially inaccurate. The industrial commission’s action on each finding will determine the delineation of the ordinary high water mark for the segment of the river addressed by the finding.
  8. Upon adoption of the final review findings by the industrial commission, the board of university and school lands may contract with a qualified engineering and surveying firm to analyze the final review findings and determine the acreage on a quarter-quarter basis or government lot basis above and below the ordinary high water mark as delineated by the final review findings of the industrial commission. The acreage determination is final upon approval by the board.

Source:

S.L. 2017, ch. 426, § 1, eff April 21, 2017; 2019, ch. 513, § 3, eff August 1, 2019; 2019, ch. 514, §§ 4, 5, eff May 2, 2019.

Note.

Section 4 of chapter 426, S.L. 2017, provides, “ RETROACTIVE APPLICATION . Section 1 of this Act is retroactive to the date of closure of the Pick-Sloan Missouri basin project dams. The ordinary high water mark determination under this Act is retroactive and applies to all oil and gas wells spud after January 1, 2006, for purposes of oil and gas mineral and royalty ownership.”

Notes to Decisions

Ownership.

Because successors-in-interest’s property was above the ordinary high water mark of the historical Missouri riverbed channel, the property was not State of North Dakota sovereign lands so that the State did not have a claim to the property outside of the acreage determination. Further processes applied to the property and had to be completed as the final acreage determinations had not been made and royalties and bonus payments may have needed to have been released to successors-in-interest before determining successors-in-interests’ damages. Wilkinson v. Bd. of Univ. & Sch. Lands of N.D., 2020 ND 179, 947 N.W.2d 910, 2020 N.D. LEXIS 188 (N.D. 2020).

61-33.1-04. Implementation. [Retroactive application — See note]

  1. Within six months after the adoption of the acreage determination by the board of university and school lands:
    1. Any royalty proceeds held by operators attributable to oil and gas mineral tracts lying entirely above the ordinary high water mark of the historical Missouri riverbed channel on both the corps survey and the state phase two survey must be released to the owners of the tracts, absent a showing of other defects affecting mineral title; and
    2. Any royalty proceeds held by the board of university and school lands attributable to oil and gas mineral tracts lying entirely above the ordinary high water mark of the historical Missouri riverbed channel on both the corps survey and the state phase two survey must be released to the relevant operators to distribute to the owners of the tracts, absent a showing of other defects affecting mineral title.
  2. Upon adoption of the acreage determination by the board of university and school lands:
    1. The board of university and school lands shall begin to implement any acreage adjustments, lease bonus and royalty refunds, and payment demands as may be necessary relating to state-issued oil and gas leases. The board shall complete the adjustments, refunds, and payment demands within two years after approving the acreage determination.
    2. Operators of oil and gas wells affected by the final acreage determination immediately shall begin to implement any acreage and revenue adjustments relating to state-owned and privately owned oil and gas interests. The operators shall complete the adjustments within two years after the the board approves the acreage determination. Any applicable penalties, liability, or interest for late payment of royalties or revenues from an affected oil or gas well may not begin to accrue until the end of the two-year deadline. The filing of an action under section 61-33.1-05 tolls the deadline for any oil and gas well directly affected by the action challenging the review finding or final acreage determination.

Source:

S.L. 2017, ch. 426, § 1, eff April 21, 2017; 2019, ch. 514, § 6, eff May 2, 2019.

Note.

Section 4 of chapter 426, S.L. 2017, provides, “ RETROACTIVE APPLICATION . Section 1 of this Act is retroactive to the date of closure of the Pick-Sloan Missouri basin project dams. The ordinary high water mark determination under this Act is retroactive and applies to all oil and gas wells spud after January 1, 2006, for purposes of oil and gas mineral and royalty ownership.”

Notes to Decisions

No Gift Clause Violation.

N.D.C.C. § 61-33.1-04(1)(b) did not offend the gift clause for returning barred royalty claims because (1) it was not a donation to recognize a moral obligation to return funds the State was paid for minerals the State did not own, (2) any mineral rights the State allegedly owned under a lakebed were federally preempted, and (3) the State’s release of escrow funds was not time-barred. Sorum v. State, 2020 ND 175, 947 N.W.2d 382, 2020 N.D. LEXIS 176 (N.D. 2020), cert. denied, — U.S. —, 141 S. Ct. 1389, 209 L. Ed. 2d 129, 2021 U.S. LEXIS 820 (U.S. 2021).

Ownership.

Because successors-in-interest’s property was above the ordinary high water mark of the historical Missouri riverbed channel, the property was not State of North Dakota sovereign lands so that the State did not have a claim to the property outside of the acreage determination. Further processes applied to the property and had to be completed as the final acreage determinations had not been made and royalties and bonus payments may have needed to have been released to successors-in-interest before determining successors-in-interests’ damages. Wilkinson v. Bd. of Univ. & Sch. Lands of N.D., 2020 ND 179, 947 N.W.2d 910, 2020 N.D. LEXIS 188 (N.D. 2020).

§ 61-33.1-05. Actions challenging review findings or final acreage determinations. [Retroactive application — See note]

  1. An interested party seeking to bring an action challenging the review findings or recommendations or the industrial commission actions under this chapter shall commence an action in district court within two years of the date of adoption of the final review findings by the industrial commission. The plaintiff bringing an action under this section may challenge only the final review finding for the section or sections of land in which the plaintiff asserts an interest. The state and all owners of record of fee or leasehold estates or interests affected by the finding, recommendation, or industrial commission action challenged in the action under this section must be joined as parties to the action. A plaintiff or defendant claiming a boundary of the ordinary high water mark of the historical Missouri riverbed channel which varies from the boundary determined under this chapter bears the burden of establishing the variance by clear and convincing evidence based on evidence of the type required to be considered by the engineering and surveying firm under subsection 3 of section 61-33.1-03.
  2. An interested party seeking to bring an action challenging the final acreage determination under this chapter shall commence an action in district court within two years of the date the acreage determinations were approved by the board of university and school lands. The plaintiff bringing an action under this section may challenge only the acreage determination for the section or sections of land in which the plaintiff asserts an interest. The state and all owners of record of fee or leasehold estates or interests affected by the final acreage determination challenged in the action under this section must be joined as parties to the action. A plaintiff or defendant claiming a determination of the acreage above or below the historical Missouri riverbed channel which varies from the final acreage determination under this chapter bears the burden of establishing the variance by clear and convincing evidence based on evidence of the type required to be considered by the engineering and surveying firm contracted by the board of university and school lands under subsection 2 of section 61-33.1-04.
  3. Notwithstanding any other provision of law, an action brought in district court under this section is the sole remedy for challenging the final review, recommendations, determination of the ordinary high water mark, and final acreage determination under this chapter, and preempts any right to rehearing, reconsideration, administrative appeal, or other form of civil action provided under law.

Source: S.L. 2017, ch. 426, § 1, eff April 21, 2017; 2019, ch. 514, § 7, eff May 2, 2019.

Note.

Section 4 of chapter 426, S.L. 2017, provides, “ RETROACTIVE APPLICATION . Section 1 of this Act is retroactive to the date of closure of the Pick-Sloan Missouri basin project dams. The ordinary high water mark determination under this Act is retroactive and applies to all oil and gas wells spud after January 1, 2006, for purposes of oil and gas mineral and royalty ownership.”

Notes to Decisions

Exhaustion.

All actions under the statute do not have to be exhausted before title to any property can be finalized. Wilkinson v. Bd. of Univ. & Sch. Lands of N.D., 2020 ND 179, 947 N.W.2d 910, 2020 N.D. LEXIS 188 (N.D. 2020).

61-33.1-06. Public domain lands. [Retroactive application — See note]

Notwithstanding any provision of this chapter to the contrary, the ordinary high water mark of the historical Missouri riverbed channel abutting nonpatented public domain lands owned by the United States must be determined by the branch of cadastral study of the United States bureau of land management in accordance with federal law.

Source:

S.L. 2017, ch. 426, § 1, eff April 21, 2017.

Note.

Section 4 of chapter 426, S.L. 2017, provides, “ RETROACTIVE APPLICATION . Section 1 of this Act is retroactive to the date of closure of the Pick-Sloan Missouri basin project dams. The ordinary high water mark determination under this Act is retroactive and applies to all oil and gas wells spud after January 1, 2006, for purposes of oil and gas mineral and royalty ownership.”

§ 61-33.1-07. Department of water resources regulatory jurisdiction. (Retroactive application — See note)

This chapter does not affect the authority of the department of water resources to regulate the historical Missouri riverbed channel, minerals other than oil and gas, or the waters of the state, provided the regulation does not affect ownership of oil and gas minerals in and under the riverbed or lands above the ordinary high water mark of the historical Missouri riverbed channel subject to inundation by Pick-Sloan Missouri basin project dams.

Source:

S.L. 2017, ch. 426, § 1, eff April 21, 2017; 2019, ch. 514, § 8, eff May 2, 2019; 2021, ch. 488, § 194, eff August 1, 2021.

Note.

Section 4 of chapter 426, S.L. 2017, provides, “ RETROACTIVE APPLICATION . Section 1 of this Act is retroactive to the date of closure of the Pick-Sloan Missouri basin project dams. The ordinary high water mark determination under this Act is retroactive and applies to all oil and gas wells spud after January 1, 2006, for purposes of oil and gas mineral and royalty ownership.”

CHAPTER 61-34 Livestock Water Assistance Program

61-34-01. Definitions.

In this chapter, unless the context otherwise requires:

  1. “Commission” means the state water commission.
  2. “Program” means the drought disaster livestock water assistance program.

Source:

S.L. 1991, ch. 709, § 1; 2021, ch. 488, § 195, eff August 1, 2021.

61-34-02. Drought disaster livestock water assistance program — Administration.

The commission shall administer the program for the purpose of providing relief for livestock water supply problems caused by drought.

Source:

S.L. 1991, ch. 709, § 2.

61-34-03. Advisory committee.

The commission shall appoint an advisory committee of at least three members. The committee shall advise the commission in determining the criteria for eligibility, in defining expenses covered by the program, and in developing rules.

Source:

S.L. 1991, ch. 709, § 3.

61-34-04. Eligibility — Application for assistance.

Applicants with livestock water supply problems caused by drought may apply for assistance from the program. An applicant must first apply for water cost-share assistance from the United States department of agriculture farm service agency. If cost-share assistance is denied by the agency, the applicant may forward the application to the commission for consideration. An application forwarded to the commission must include a document from the United States department of agriculture farm service agency stating the reason for denial of cost-share assistance. The department of water resources shall review all applications received by the commission. Notwithstanding any other provision of law, a water supply project commenced after application for funding is made but without prior approval of the department is eligible for funding consideration from the program. The department shall provide funds for approved applications in accordance with rules and criteria for eligibility and only to the extent that funding is available. A drought disaster livestock water assistance program project located on Indian land is eligible for the program.

Source:

S.L. 1991, ch. 709, § 4; 2007, ch. 46, § 10; 2007, ch. 561, § 1; 2019, ch. 515, § 1, eff March 8, 2019; 2021, ch. 488, § 196, eff August 1, 2021.

CHAPTER 61-35 Water Districts

61-35-01. Definitions.

As used in this chapter:

  1. “Auditor” means the county auditor.
  2. “Benefit unit” means the fee each member pays, for each service that is planned to be connected to the water system, for the privilege of using the district’s facilities.
  3. “Board” means the board of directors of a district.
  4. “Bond” means any revenue bond, refunding bond, or improvement bond, or other evidence of indebtedness of a district issued under this chapter.
  5. “Director” means a member of the board of directors.
  6. “District” means a water district organized under this chapter.
  7. “Federal agency” includes the United States, the president of the United States, or any agency, instrumentality, or corporation of the United States which has been or may be designated or created by or pursuant to any act or acts or joint resolutions of the Congress of the United States or which may be owned or controlled, directly or indirectly, by the United States.
  8. “Holder of bonds” or “bondholder”, or any similar term, means any person who is the registered owner of any outstanding revenue bond, improvement bond, or refunding bonds.
  9. “Law” means any statute of this state.
  10. “Member” means an owner of real property that is located within a district, the tenant of the real property, or another person acting for the owner with the owner’s written consent.
  11. “Participating member” means a member who has subscribed to and paid the established fee for at least one benefit unit in a district, in the manner provided by this chapter.
  12. “Project” means any work, undertaking, enterprise, or any combination of two or more projects which a district is authorized to construct and from which the district has derived or may derive revenues. “Project” includes all improvements, betterments, extensions, and replacements of work, undertaking, or enterprises, and all appurtenances, facilities, easements, lands, rights in land, water rights, contract rights, approaches, dams, reservoirs, generating stations, sewage disposal plants, intercepting sewers, trunk connections, other sewer and water mains, filtration works, pumping stations, equipment, franchises, and structures in connection with or incidental to any work, undertaking, or enterprise a district is authorized to construct.
  13. “Refinancing” means funding, refunding, paying, or discharging, by means of refunding bonds or the proceeds from the sale of refunding bonds, all or any part of any notes, bonds, or other obligations issued to finance or to aid in financing the acquisition, construction, or improvement of a project and payable solely from all or any part of the revenue or interest on the revenue of the project in arrears or about to become due whether or not such interest is represented by interest certificates.
  14. “Refunding bonds” means notes, bonds, certificates, or other obligations of a district issued under this chapter, the proceeds of which are to be used to pay the principal of or interest on any outstanding bonds or other obligations.
  15. “Revenues” means all fees, tolls, rates, rentals, and charges levied and collected by a district in connection with, and all other income and receipts of whatever kind or character derived by a district from, the operation of any project.

“Warrant” means an order drawn by the proper official of a district on its treasury, the warrant of order to be so drawn that when signed by the district treasurer in an appropriate place it becomes a check on the depository of such district, and a warrant upon the treasury may not be delivered or mailed to the payee or the payee’s agent or representative until the warrant has been signed by the district treasurer and entered on the district’s books as a check drawn on a bank depository.

Source:

S.L. 1995, ch. 601, § 1; 2021, ch. 488, § 197, eff August 1, 2021.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-35-02. Petition.

A petition may at any time be filed with the department of water resources requesting the department to organize a district encompassing an area in one county or in two or more adjacent counties for the purpose of providing an adequate supply of water for the residents of the area. An area to be included in a district may not include property then included in any other district or included in the service area of a nonprofit corporation or cooperative association established under title 10 to operate a rural water system, except as otherwise permitted under section 61-35-25.

Source:

S.L. 1995, ch. 601, § 1; 2021, ch. 488, § 198, eff August 1, 2021.

61-35-02.1. Conversion of water resource district water supply system to water district.

A water resource district that has developed a water supply system under chapter 61-16.1 may convert that system to a water district as provided in this section. The water resource district board operating a water supply system may petition the department of water resources to organize a district in the manner provided by section 61-35-02. The signatures of the water resource district’s board of directors on the petition and a resolution adopted by the water supply system’s users approving the petition suffice in lieu of signatures of owners of fifty percent of the real property in the proposed district, if the petition presenter provides evidence satisfactory to the department that a sufficient number of members of the proposed district will subscribe or have subscribed to benefit units to make its operation feasible. The procedure for hearing and determination of disposition of the petition is as provided by this chapter. In any district organized upon the petition of a water resource board of directors, the following procedures apply:

  1. After final approval of the petition by the department of water resources, the secretary of the water resource board shall file a notice with the secretary of state.
  2. Upon filing of the notice, the assets and liabilities of the water supply system become the assets and liabilities of the newly organized district without any further meetings, voting, notice to creditors, or other actions by the members of the board.
  3. The officers and board of directors of the water resource district are the officers and board of the district.
  4. The applicable laws of the state governing the water resource district board control the initial size and the initial terms of office of officers and the board, in lieu of sections 61-35-08 through 61-35-11.
  5. The district shall bring its operation and structure into compliance with the requirements of section 61-35-08 regarding the number and qualification of directors, section 61-35-09 regarding new bylaws, section 61-35-10 regarding dividing its directors into classes, and section 61-35-11 regarding board meetings at the first annual meeting of the participating members and board. The new district has all the rights and all the property of the original water supply system and is responsible for all its obligations. Title to any property is vested in the new district with no reversion or impairment of ownership rights caused by the conversion to a district. A water supply agreement entered by a water resource district is binding for its term on a successor district organized by the water resource district, unless otherwise agreed in writing by all parties to the agreement. The right of any creditor may not be impaired by this section without the creditor’s consent.

Source:

S.L. 2005, ch. 594, § 1; 2021, ch. 488, § 199, eff August 1, 2021.

61-35-03. Petition contents.

The petition must be signed by the owners of at least fifty percent of all real property lying within the outside perimeter of the area designated for inclusion in the proposed district and must state:

  1. The location of the area, describing the area to be served or specifying the area by an attached map.
  2. The reasons a district is needed.

Source:

S.L. 1995, ch. 601, § 1.

61-35-04. Hearing after filing.

When a petition for the organization of a district is filed with the department of water resources, the department shall fix a time for a hearing on the petition not less than fifteen nor more than forty-five days after the filing of the petition. The department shall prepare a notice as required by section 61-35-05. At least seven days before the date fixed for the hearing on the petition, the notice must be published in the official county newspapers in the counties included within the district. The applicant shall pay all costs of the publication notice.

Source:

S.L. 1995, ch. 601, § 1; 1999, ch. 544, § 1; 2021, ch. 488, § 200, eff August 1, 2021.

61-35-05. Contents of notice.

The notice prepared by the department of water resources must set forth:

  1. The location of the area designated by the petitioners to be included in the proposed district, as described or shown by the original petition.
  2. The time and place fixed by the department of water resources for the hearing on the petition.
  3. That all owners or tenants of real property or other interested persons within the boundaries described may appear and be heard.
  4. That the proposed district, if organized, has no power or authority to levy any taxes.

Source:

S.L. 1995, ch. 601, § 1; 2021, ch. 488, § 201, eff August 1, 2021.

61-35-06. Appearances.

At the hearing on the petition, any owner or tenant of real property or other interested person within the boundaries of the area described in the petition may appear, in person or by a designated representative, and any representative of the state or a political subdivision or an interested person may appear, in favor of or in opposition to the organization of the proposed district. The appearances may also be filed in writing before the time set for the hearing.

Source:

S.L. 1995, ch. 601, § 1.

61-35-07. Findings — Order.

After the hearing, the department of water resources may strike off any part of the territory that testimony shows will not be benefited by the creation of the district. If the department does not find that the district is reasonably necessary, the department shall dismiss the petition. If the department finds the required notice of the hearing has been given and the proposed district is reasonably necessary for the public health, convenience, and comfort of the residents, the department shall make an order establishing the district as a political subdivision, designating its boundary, and identifying it by name or number. The order must be published in the same newspaper or newspapers that published the notice of hearing. The applicant shall pay all costs of the publication of the order. The department shall prepare and preserve a complete record of the hearing on the petition and the department’s findings and action.

Source:

S.L. 1995, ch. 601, § 1; 1999, ch. 544, § 2; 2021, ch. 488, § 202, eff August 1, 2021.

61-35-08. Meeting of members — Election of board.

As a part of the order organizing the district, the department of water resources shall fix the time and place at which the members shall meet to select from their number a board of directors. Selection of the initial board may not be later than thirty days after the order is issued. The number of directors on the board, not to exceed nine, must be determined by a majority vote of those members present. Any member elected a director who fails to become a participating member, within thirty days after entry in the minutes of the board of a declaration of availability of benefit units for subscription, forfeits the office of director.

Source:

S.L. 1995, ch. 601, § 1; 1999, ch. 544, § 3; 2021, ch. 488, § 203, eff August 1, 2021.

61-35-09. Bylaws submitted at special meeting.

Within thirty days after election of the original board, proposed bylaws must be submitted for adoption at a special meeting of members of the district, written notice of which must be mailed to each member. Members present at the special meeting may adopt or amend any of the proposed bylaws, and may propose and adopt alternative or additional bylaws by a majority vote. The bylaws may subsequently be amended at any annual or special meeting of the participating members of the district. However, the bylaws of each district must provide:

  1. For an annual meeting of participating members each year after the year of organization of the district and for mailing of written notice of the time and place of each annual meeting to each participating member and publication of the notice in the official newspaper of the county or counties served by the district not less than ten nor more than thirty days before each meeting.
  2. That each participating member of the district is entitled to one vote at all annual and special meetings of the district for each benefit unit to which the member has subscribed.

Source:

S.L. 1995, ch. 601, § 1.

61-35-10. Directors divided into classes — Terms — Vacancies.

The initial board of each district shall divide its members by lot into three classes of as nearly equal size as possible. The terms of the directors in the first, second, and third classes expire on dates of the annual meetings in the first, second, and third years, respectively, following the year in which the district is organized, or as soon thereafter as their successors are elected and have qualified. At the annual meeting in each year after the year in which the district is organized, a director must be elected to succeed each director whose term of office expires on that date, and each director so elected holds office for a term of three years and until a successor is elected and has qualified. Vacancies must be filled for the unexpired term by appointment by the remaining directors.

Source:

S.L. 1995, ch. 601, § 1.

61-35-11. Board meetings.

The board shall meet annually on the same day as, and immediately following, the annual meeting of participating members, and may meet at other times it determines, or upon the call of the president or any two directors. At the first meeting of the initial board following its election, and at each succeeding annual board meeting, the board shall elect a president, vice president, secretary, and treasurer for the ensuing year. Board members are entitled to reasonable compensation to cover the expenses of serving on the board.

Source:

S.L. 1995, ch. 601, § 1.

61-35-12. Powers of district board.

Each district board has the power to:

  1. Sue and be sued in the name of the district.
  2. Exercise the power of eminent domain in the manner provided by title 32 for the purpose of acquiring and securing any rights, titles, interests, estates, or easements necessary or proper to carry out the duties imposed by this chapter, and particularly to acquire the necessary rights in land for the construction of pipelines, reservoirs, connections, valves, pumping installations, or other facilities for the storage, transportation, or utilization of water and all other appurtenant facilities necessary to carry out the purposes of its organization.
  3. Accept funds, property, and services or other assistance, financial or otherwise, from federal, state, and other public or private sources for the purpose of aiding and promoting the construction, maintenance, and operation of projects within the district.
  4. Cooperate and contract with the state, its agencies, or its political subdivisions or any federal agency in research and investigation or other activities promoting the establishment, construction, development, or operation of projects within the district.
  5. Furnish assurances of cooperation, and as principal and guarantor, or either, to enter into contracts with any federal agency, and with public corporations and political subdivisions of this state for the performance of obligations for the construction, operation, or maintenance of the district or for the delivery of water to any such department, agency, or political subdivision.
  6. Construct, lease, or purchase separately or in cooperation with any federal agency or the state, its agencies, or political subdivisions, and to equip, maintain, and operate an office and principal place of business for the district, or other buildings or facilities to carry out activities authorized by this chapter.
  7. Appoint and fix the compensation and reimbursement of expenses of such employees as the board deems necessary to conduct the business and affairs of the district and to procure the services of engineers and other technical experts, and to retain attorneys to assist, advise, and act for it in its proceedings.
  8. Sell or exchange any and all real property purchased or acquired by the district. All money received from any such sale or exchange must be deposited to the credit of the district and may be used to pay expenses of the district.
  9. Borrow money as provided in this chapter.
  10. Issue and sell bonds in an amount or amounts determined by the board, including an amount or amounts for costs of issuance and financing, and any necessary reserve funds, for the purpose of financing the cost of a project.
  11. Refund and refinance its bonds from time to time as often as it is advantageous and in the interest of the district.
  12. Pledge any and all income, profits, and revenues received by the district in connection with the operation, lease, sale, or other disposition of all or any part of a project to secure the payment of bonds issued and sold to finance the project.
  13. Pledge all or any part of any assessments levied under this chapter to secure the payment or redemption of any bonds issued in anticipation of the levy and collection of the assessments.
  14. Acquire by gift, purchase, or the exercise of the right of eminent domain, property required to construct, reconstruct, improve, better, or extend any project, whether completely or partially within or outside the district, and easements, rights in lands, and water rights in connection with the project.
  15. Operate and maintain any project for its own use and for the use of public and private consumers and users within and without the territorial boundaries of the district.
  16. Prescribe, revise, and collect rates, fees, tolls, or charges for the services, facilities, or commodities furnished by the project, and in anticipation of the collection of the revenues of the project, issue revenue bonds to finance all or part of the cost of the acquisition, construction, reconstruction, improvement, betterment, or extension of any project.
  17. Pledge revenues of the project to the punctual payment of principal and interest on bonds. A pledge under this subsection applies to the revenues of improvements, betterments, or extensions of the project which may be constructed or acquired after the issuance of bonds as well as the revenues of existing systems, plants, works, instrumentalities, and properties of any part of the project improved, bettered, or extended.
  18. Make all contracts, execute all instruments, and do all things necessary or convenient in the exercise of its powers or in the performance of its covenants or duties or in order to secure the payment of its bonds, but an encumbrance, mortgage, or other pledge of property of the district may not be created by any such contract or instrument.
  19. Enter into and perform long-term or short-term contracts with any nongovernmental unit for the provision and operation by the district of sewerage facilities, when the board of the district determines such action to be in the public interest and necessary for the protection of the public health, in order to abate or reduce the pollution of waters caused by discharges of industrial wastes by the nongovernmental unit, and for the payment periodically by the nongovernmental unit to the district of amounts the board deems sufficient to compensate the district for all costs associated with providing, operating, and maintaining the sewerage facilities serving the nongovernmental unit.
  20. Enter into and perform such contracts and agreements with other districts, political subdivisions, and state institutions as the board deems proper and feasible concerning the planning, construction, lease, or other acquisition and the financing, maintenance, and operation of sewerage facilities. Any districts contracting with each other may provide in any contract or agreement for a board, commission, or such other body as their boards deem proper to supervise, manage, and operate the sewerage facilities and may prescribe its powers and duties and compensation of its members.
  21. Accept from any authorized federal agency loans or grants for the planning, construction, acquisition, lease, or other provision of any project, and to enter into agreements with such agency respecting such loan or grants.
  22. Contract debts and borrow money, pledge property of the district for repayment of indebtedness other than bonded indebtedness, and provide for payment of debts and expenses of the district.
  23. Notwithstanding any other law, exercise the powers granted to a municipality under subsection 5 of section 40-33-01 and section 40-34-19, pursuant to the limitations set forth therein. A district may pay the cost of leasing any waterworks, mains, and water distribution system and any equipment or appliances connected therewith and any property related thereto pursuant to subsection 5 of section 40-33-01, or of any sewage system and all related property for the collection, treatment, purification, and disposal in a sanitary manner of sewage pursuant to section 40-34-19, solely from revenues to be derived by the district from the ownership, sale, lease disposition, and operation of the waterworks, mains, and water distribution system or sewage system; the funds or any other amounts invested by such district pursuant to section 21-06-07, or invested on such district’s behalf by the state, or any agency or institution of the state, in conformity with policies of the industrial commission, including investment in a guaranteed investment contract and any earnings thereon, to the extent pledged therefor; and funds, if any, appropriated annually by the board of the district or received from federal or state sources.
  24. Enter and perform long-term and short-term contracts for the purchase or sale of water and to pledge any and all income, profits, and revenues received by the district to secure payment of the district’s obligations created by the contracts.

Property of the district may not be liable to be forfeited or taken in payment of any bonds issued under this chapter, and debt on the general credit of the district may not be incurred in any manner for payment of bonds under this chapter.

Source:

S.L. 1995, ch. 601, § 1; 2001, ch. 569, § 3; 2003, ch. 342, § 15; 2005, ch. 596, § 1.

61-35-13. Contracts for construction or maintenance of a project.

If the cost of construction or maintenance of a project does not exceed the amount provided for construction of a public improvement under section 48-01.2-02, the work may be done on a day work basis or a contract may be let without being advertised. If the cost of the construction or maintenance exceeds the amount provided for construction of a public improvement under section 48-01.2-02, the lowest and best bid must be accepted. The board must comply with the requirements of sections 61-35-88 through 61-35-103 when bidding a project.

The competitive bid requirement of this section may be waived if the board determines that an emergency exists requiring the prompt repair of a project and a contract may be made for the prompt repair of the project without seeking bids.

Source:

S.L. 1995, ch. 601, § 1; 2003, ch. 554, § 3; 2007, ch. 403, § 25.

61-35-14. Financing project through improvement bonds or special assessments — Apportionment of benefits.

A board may acquire needed interest in property and provide for the cost of construction, alteration, repair, operation, and maintenance of a project with funds raised by special assessments. A board may issue improvement bonds in anticipation of the levy and collection of special assessments. If a board decides to acquire property or interests in property to construct, operate, alter, repair, or maintain a project with funds raised in whole or in part through special assessments, the assessments must be apportioned to and spread in proportion to benefits accruing to lands or premises benefited by the project. The board shall assess the proportion of the cost of the project, or the part of the cost to be financed with funds raised through levy and collection of special assessments which any lot, piece, or parcel of land bears in proportion to the benefits accruing to the property and any county, city, or township that is benefited.

Source:

S.L. 1995, ch. 601, § 1.

61-35-15. Revenue bonds.

A district may issue revenue bonds, not exceeding an aggregate total outstanding of fifty million dollars, to finance construction of projects and incidental facilities authorized by this chapter. Issuance of revenue bonds must be approved by two-thirds of all of the members of the district board. The district shall pledge sufficient revenue from any revenue-producing facility constructed with the aid of revenue bonds for the payment of principal and interest on the bonds and shall establish rates for the facilities at a sufficient level to provide for the operation of such facilities and for the bond payments. Revenue bonds may not be a general obligation of any political subdivision and may not be secured by property taxes.

Source:

S.L. 1995, ch. 601, § 1; 2007, ch. 562, § 1.

61-35-16. Plans and specifications.

As soon as reasonably possible after organizing a district, the board shall file with the department of water resources copies of the plans and specifications for, and estimates of the cost of, any improvements authorized by this chapter which the board proposes to construct or acquire. The board shall determine a reasonable fee that each member shall pay for the privilege of utilizing the district’s facilities, which shall be known as a benefit unit. By publication in the official county newspaper of each county in which all or part of the district is located, the board shall describe generally the planned improvements, the area to be served, and the fee members will be required to pay for each service connected to the water system.

Source:

S.L. 1995, ch. 601, § 1; 2021, ch. 488, § 204, eff August 1, 2021.

61-35-17. Selling water.

If the capacity of the district’s facilities permits, the district may sell water by contract to any political subdivision, other district, or other person, public or private, not within the boundaries of the district.

Source:

S.L. 1995, ch. 601, § 1.

61-35-18. Inclusion of property in district — Inclusion of municipality — Merger.

  1. Owners of real property outside any district which can be served economically by the facilities of the district may petition to be attached to the district. The petition must be filed with the department of water resources, and the department shall proceed in substantially the same manner as provided by this chapter for filing of and proceeding on a petition for organization of a district.
  2. All or part of an incorporated city may be included in the boundaries of any existing district or a district being newly organized, provided the governing body of the city by resolution or ordinance gives its consent.
  3. Boards of two or more districts by concurrent action and by approval of the department of water resources may merge their districts into one. In case of merger, the members of the boards of the merged districts may serve until the next annual meeting at which time the district shall comply with the requirements of section 61-35-08 regarding the number and eligibility of directors, adopt new bylaws, and set the terms of the new board according to section 61-35-10. The resulting district shall take over all the assets and legal liabilities of the districts joining in the merger. Obligations of any district secured by the revenue of the systems operated by the district must continue to be required, or a sinking fund must be established for that purpose created from revenue from the system operated over the same area by the resulting district in accordance with the laws under which the obligations were issued, until all obligations of the old district have been retired.
  4. If there is a conflict between two or more districts concerning which district will serve an area, the department of water resources, after a public hearing, shall determine which district can provide services more adequately and economically within the area.

Source:

S.L. 1995, ch. 601, § 1; 2021, ch. 488, § 205, eff August 1, 2021.

61-35-19. Taxing prohibited.

A district has no power to levy any taxes. The facilities constructed or otherwise acquired by any district, including ponds, reservoirs, pipelines, wells, deck dams, and pumping installations, the revenues obtained by the district from the sale of water, and the revenue bonds or interest on the revenue bonds issued by any district are not taxable in any manner by the state or a political subdivision.

Source:

S.L. 1995, ch. 601, § 1.

61-35-20. Exclusion of real property from district.

If it becomes apparent that any real property included within a district but contiguous to a border cannot economically or adequately be served by the facilities of the district, the owners of the real property or the board may file with the department of water resources a petition requesting the real property be excluded from the district. The petition must:

  1. Describe by full and partial section and by township and range, or by lot number and subdivision, the real property the petitioner proposes to exclude from the district.
  2. State the real property cannot be served economically or adequately by the facilities of the district, and it is not feasible for the district to enlarge or extend its facilities to serve economically and adequately the real property.
  3. Be signed by the owners of all the real property proposed to be excluded from the district or by all of the board.

Source:

S.L. 1995, ch. 601, § 1; 2021, ch. 488, § 206, eff August 1, 2021.

61-35-21. Inactive district dissolved.

A petition may be filed with the department of water resources requesting the department to dissolve an inactive district. The petition must:

  1. List all real and personal property of any kind exclusive of records, maps, plans, and files and state all of its debts and obligations have been paid fully.
  2. State the district is not functioning and probably will continue to be inoperative.
  3. Be signed by three-fourths of the members of the district.

Source:

S.L. 1995, ch. 601, § 1; 2021, ch. 488, § 207, eff August 1, 2021.

61-35-22. Hearing.

  1. Upon the filing with the department of water resources of a petition under section 61-35-20 or 61-35-21, the department shall fix a time for consideration of the petition. The department may hold a hearing on the petition. After consideration of the petition, and after the hearing if one is held, the department shall ascertain whether:
    1. The petition meets all of the requirements prescribed by section 61-35-20 or 61-35-21.
    2. It appears from all information available to the department that each allegation included in the petition is factual.
  2. If the department’s finding on each of the foregoing points is positive, the department shall declare the real property described in the petition detached from the district or declare the district dissolved. The department shall notify the secretary of the district of the department’s action, and the secretary shall amend the records of the district to show the real property described in the petition has been detached from the district. Within thirty days, the secretary shall deliver to the department all records, maps, plans, and files of the dissolved district.

Source:

S.L. 1995, ch. 601, § 1; 2021, ch. 488, § 208, eff August 1, 2021.

61-35-23. Disposition of assets.

If a district is dissolved, the department of water resources shall provide for the disposition of any property owned by the district and for the apportionment of the proceeds and any other moneys belonging to the district to an adjoining district. If there is no adjoining district, the department shall apportion and dispose of the property and proceeds to the general fund of each county in the district in proportion to the county’s area in the district. Any pledge or lien given with respect to any outstanding bonds of the district remains and any property so encumbered must be handled in conformity with the bond resolution or trust indenture. Money, property, or the proceeds from property may not be distributed to any private interests.

Source:

S.L. 1995, ch. 601, § 1; 2021, ch. 488, § 209, eff August 1, 2021.

61-35-24. Not exempt from other requirements.

This chapter does not exempt any district from the requirements of any other statute under which the district is required to obtain the permission or approval of, or to notify, the state water commission, or the department of environmental quality, or any other agency of this state or of any of its political subdivisions before proceeding with construction, acquisition, operation, enlargement, extension, or alteration of any works or facilities that the district is authorized to undertake under this chapter.

Source:

S.L. 1995, ch. 601, § 1; 2017, ch. 199, § 73, eff April 29, 2019.

61-35-25. Alternate operation by nonprofit corporation or cooperative.

A nonprofit corporation or cooperative association established under title 10 for the specific purpose of operating a rural water system may petition the department of water resources to organize a district, in the manner provided by section 61-35-02. The signatures of the corporation’s or cooperative’s officers on the petition and a resolution adopted by the members in the manner provided in section 10-15-37 for amendments to articles or in the manner provided in chapter 10-33 for dissolution approving the petition suffice in lieu of signatures of owners of fifty percent of the real property in the proposed district, if the petition presenter provides evidence satisfactory to the department that a sufficient number of members of the proposed district will subscribe or have subscribed to benefit units to make its operation feasible. The procedure for hearing and determination of disposition of the petition is as provided by this chapter. In any district organized upon the petition of a nonprofit corporation or cooperative association, the following procedures apply:

  1. After final approval of the petition by the department, the secretary of the corporation or cooperative shall file a notice with the secretary of state or attorney general, if applicable, in accordance with title 10.
  2. Upon filing of the notice, the nonprofit corporation or cooperative ceases to exist as a title 10 entity and all assets and liabilities of the nonprofit corporation or cooperative become the assets and liabilities of the newly organized district without any further meetings, voting, notice to creditors, or other actions by the members of the board.
  3. The officers and board of directors of the corporation or cooperative are the officers and board of the district.
  4. The applicable laws of the state and the articles of incorporation and bylaws of the corporation or cooperative control the initial size and initial term of office of officers and the board, in lieu of sections 61-35-08 through 61-35-11.
  5. The district shall bring its operation and structure into compliance with the requirements of section 61-35-08 regarding the number and qualification of directors, section 61-35-09 regarding new bylaws, section 61-35-10 regarding dividing its directors into classes, and section 61-35-11 regarding board meetings at the first annual meeting of the participating members and board. The new district has all the rights and all the property of the original corporation or cooperative and is responsible for all its obligations. Title to any property is vested in the new district with no reversion or impairment of ownership rights caused by the conversion to a district. A water supply agreement entered by a nonprofit corporation or cooperative association is binding for its term on a successor district organized by the nonprofit corporation or cooperative association, unless otherwise agreed in writing by all parties to the agreement. The right of any creditor may not be impaired by this section without the creditor’s consent.

Source:

S.L. 1995, ch. 601, § 1; 1999, ch. 50, § 78; 1999, ch. 544, § 4; 2021, ch. 488, § 210, eff August 1, 2021.

61-35-26. Annexation of land by a municipality.

A district organized under this title or title 10 must be fairly compensated for losses resulting from annexation by a city under chapter 40-51.2. If a district has outstanding bonds, the annexation proceedings must be in accordance with the bond resolution or trust indenture. The governing body of a city and the board of directors of the district may agree to terms that provide that the facilities owned by the district and located within the city must be retained by the district for the purpose of transporting water to customers outside the municipality.

Source:

S.L. 1995, ch. 601, § 1.

61-35-26.1. Statement of intent.

It is the intent of the legislative assembly that potable water should be available in sufficient quality and quantity to meet citizens’ needs for a healthy and safe standard of living and to promote economic growth and development. In order to meet this objective in the most economical way, water service districts and city water service systems shall coordinate their service plans. Competition for users and duplication of service must be avoided whenever possible.

Source:

S.L. 2013, ch. 488, § 1.

61-35-26.2. Plans for water service by providers — Filing plans — Existing agreements.

  1. A city planning to expand water service through annexation shall develop a city water service area plan. The city shall consult with any other water service provider, including a district, whose water service area is affected by the city’s water service area plan of the establishment of the plan.
  2. The city shall file the city water service area plan with the commission. Upon filing of the plan with the commission, the city may proceed with water service to the annexed area as provided in section 61-35-26. A city water service area plan is enforceable when there is a water service agreement among the water service providers, including a district, that are encompassed by or which abut the water service area boundary.
  3. Sections 61-35-26.1 through 61-35-26.4 do not supersede an existing water service agreement between a city and a district.

Source:

S.L. 2013, ch. 488, § 2.

61-35-26.3. State water commission funding.

Before providing a grant or loan to a district or city for a water service project in any area within the extraterritorial zoning jurisdiction of any affected city, the commission shall require that district and city to have a water service agreement. The absence of a water service agreement may not affect the funding by the commission of other projects for a district or city which are not related to potable water service and are not located within the extraterritorial zoning jurisdiction.

Source:

S.L. 2013, ch. 488, § 3.

61-35-26.4. Water service agreement — Mediation — Administrative law judge.

  1. If a water service agreement between the district and the city is not executed within sixty days after the city notifies the district that a city water service area plan has been developed, the matter must be submitted to a committee for mediation. The committee must be comprised of a mediator retained jointly by the city and the district, two members appointed by the governing body of the city, and two members appointed by the district. The retained mediator shall arrange and preside over the mediation proceedings.
  2. If the mediation committee is unable to resolve the dispute to the satisfaction of the parties involved, either party may petition the office of administrative hearings to appoint an administrative law judge to determine the terms of the water service agreement. Before a hearing may be held, at least two weeks’ written notice must be given to the parties involved in the dispute. At the hearing, the retained mediator who presided over the mediation proceedings may provide information to the administrative law judge on the dispute between the parties involved and any proposed resolutions or recommendations made by a majority of the members appointed to the committee. Any resident of or person owning property in a city or district involved in the dispute, or a representative of such a resident or property owner, and any representative of a city or district involved, may appear at the hearing and present evidence on any matter to be determined by the administrative law judge. A decision by the administrative law judge must consider the following factors related to water service in the annexed area in making a decision under this subsection:
    1. The recommendation of the mediation committee;
    2. The firefighting flow capacity of the water system;
    3. The anticipated growth patterns of the district and city involved in the dispute;
    4. Special conditions or needs, including topographic or physical features influencing service;
    5. The system capacity and trunk main delivery structure of each provider;
    6. The age, condition, and worth of the affected existing infrastructure;
    7. Outstanding debt attributable to current users;
    8. The impact on future revenues lost from existing and future customers;
    9. Whether development would have occurred without annexation; and
    10. Any other factor determined to be relevant by the administrative law judge.

Source:

S.L. 2013, ch. 488, § 4.

61-35-27. Personal liability.

Except as otherwise provided in this chapter, a director, officer, employee, or other personnel of the board are not liable for the district’s debts or obligations and a director, officer, employee, or volunteer of the board is not personally liable in that capacity for a claim based upon an act or omission of the person in the discharge of the person’s duties, except for any of the following:

  1. A breach of the duty of loyalty to the district.
  2. Acts or omissions not in good faith or which involve intentional misconduct or knowing violation of the law.
  3. A transaction from which the person derives an improper personal benefit.

Source:

S.L. 1995, ch. 601, § 1.

61-35-28. Proceedings to confirm contracts, special assessments, and other acts.

Any district board, before making any contract, levying special assessments, or issuing special assessment improvement bonds or revenue bonds, or before taking any special action, may commence a special proceeding in district court by which the proceeding leading up to the making of such contract, levying special assessments, issuing improvement bonds or revenue bonds, or leading up to any other special action, may be judicially examined, approved, and confirmed. Such judicial proceedings must substantially comply with the procedure required in the case of judicial confirmation of proceedings, acts, and contracts of an irrigation district.

Source:

S.L. 1995, ch. 601, § 1.

61-35-29. Authorization to organize association of rural water systems.

A district, upon resolution of the district board, may organize and participate in an association of rural water systems organized under chapter 10-33.

Source:

S.L. 1995, ch. 601, § 1; 1997, ch. 105, § 13.

61-35-30. Resolution authorizing project and the issuance of revenue bonds.

The acquisition, construction, reconstruction, improvement, betterment, or extension of any project and the issuance of bonds in anticipation of the collection of the revenues of such project to provide funds to pay the associated costs may be authorized by a resolution of the board adopted after appropriate notice by the affirmative vote of a majority of the board. The amount of such bonds may not exceed the amount authorized by the participating members of the district as provided in this chapter. Unless otherwise provided in the resolution, the resolution under this section takes effect immediately and need not be laid over, published, or posted.

Source:

S.L. 1995, ch. 601, § 1.

61-35-31. Refunding bonds authorized by resolution — Adoption — Taking effect.

Refunding bonds must be authorized by resolution of the board. The resolution may be adopted at a regular or special meeting, including the meeting at which it is introduced, by the affirmative vote of a majority of the members of the board, and takes effect immediately upon adoption. Other proceedings or procedure are not required for the issuance of refunding bonds by the district.

Source:

S.L. 1995, ch. 601, § 1.

61-35-32. Cost of project — How determined.

In determining the cost of a project, the board may include the estimated cost of bond issuance, all engineering, inspection, fiscal, and legal expenses, any bond reserves, and the estimated interest that will accrue during construction, and within six months after completion of construction.

Source:

S.L. 1995, ch. 601, § 1.

61-35-33. Provisions governing bonds.

The resolution authorizing the issuance of revenue bonds or refunding bonds under this chapter or resolutions adopted after the adoption of the original resolution must prescribe:

  1. The rate or rates of interest, payable semiannually.
  2. Whether the bonds will be in one or more series.
  3. The date or dates the bonds will bear.
  4. The time or times, not exceeding forty years from their respective dates, when the bonds will mature.
  5. The medium in which the bonds will be payable.
  6. The place or places where the bonds will be payable.
  7. Whether or not the bonds will carry registration privileges and what those privileges, if any, will be.
  8. The terms of redemption, if any, to which the bonds will be subject.
  9. The manner in which the bonds will be executed.
  10. The terms, covenants, and conditions that the bonds will contain.
  11. The form in which the bonds will be issued.

Source:

S.L. 1995, ch. 601, § 1.

61-35-34. Sale of bonds — When private sale authorized — Public sale and notice.

Revenue bonds or refunding bonds must be sold at not less than ninety-eight percent of par. The bonds may be sold at private sale without notice or at public sale after notice of the sale has been published once at least five days before the sale in a newspaper circulating in the district. Bonds sold at private sale must bear interest at a rate and be sold at a price resulting in an average net interest cost not exceeding twelve percent per annum. There is no interest rate ceiling on issues sold at public sale or to the state or any of its agencies or instrumentalities. As to any series or issue of bonds for which a notice of sale was published but for which no bids were received or all bids received were rejected, the board, without readvertising the bonds for sale, may negotiate the sale of all of the bonds to any person upon terms complying with those specified in the published notice of sale and, if bids were rejected, more favorable to the district than those specified in the rejected bid.

Source:

S.L. 1995, ch. 601, § 1.

61-35-35. Bonds and receipts or certificates issued pending preparation of bonds — Negotiability.

Pending the preparation of the definitive bonds, bond anticipation notes may be issued and sold in the form and with the provisions determined by the board.

Source:

S.L. 1995, ch. 601, § 1.

61-35-36. Validity of bonds.

Revenue bonds or refunding bonds bearing the signatures of the appropriate officers who are in office on the date of signing are valid and binding obligations notwithstanding that before the delivery and payment any or all of the persons whose signatures appear on the bonds have ceased to be officers of the issuing district. The validity of the bonds is not dependent upon or affected by the validity or regularity of any proceedings relating to the acquisition, purchase, construction, reconstruction, improvement, betterment, or extension of the project for which the bonds are issued. The resolution authorizing the bonds may provide that the bonds must contain a recital that they are issued under this chapter and the recital is conclusive evidence of their validity and of the regularity of their issuance.

Source:

S.L. 1995, ch. 601, § 1.

61-35-37. Bonds exempt from taxation.

Bonds issued under this chapter and their income are exempt from taxation by the state or by any political subdivision.

Source:

S.L. 1995, ch. 601, § 1.

61-35-38. Covenants that may be inserted in resolution authorizing bonds.

Any resolution authorizing the issuance of bonds under this chapter to completely or partially finance or refinance the acquisition, construction, reconstruction, improvement, betterment, or extension of a project may contain covenants that limit the exercise of powers conferred by this chapter as to:

  1. The rates, fees, tolls, or charges to be charged for the services, facilities, and commodities of the project.
  2. The use and disposition of the revenues of the project.
  3. The creation, maintenance, regulation, use, and disposition of reserves or sinking funds.
  4. The purpose to which the proceeds of the sale of bonds may be applied and the use and disposition of the proceeds.
  5. The events of default and the rights and liabilities arising upon default and the terms and conditions upon which the holders of bonds issued under this chapter may bring any suit or action on said bonds.
  6. The payment by the district to the account of the project of a fair and reasonable amount for the services, facilities, or commodities furnished the district or any of its departments by the project.
  7. The issuance of other or additional bonds or instruments payable from or constituting a charge against the revenue of the project.
  8. The insurance to be carried upon the project and the use and disposition of insurance moneys.
  9. The keeping, inspection, and audit of books of account.
  10. The terms and conditions upon which any or all of the bonds become or may be declared due before maturity and the terms and conditions upon which the declaration and its consequences may be waived.
  11. The rights, liabilities, powers, and duties arising upon the breach by the district of any covenants, conditions, or obligations.
  12. The vesting in a trustee of the right to enforce any covenants made to secure, to pay, or in relation to, the bonds, the powers and duties of such trustee, and the limitations of liabilities thereof.
  13. The terms and conditions upon which the holders of the bonds, or the holders of any proportion or percentage of them, may enforce any covenants made or any duties imposed under this chapter.
  14. A procedure by which the terms of any resolution authorizing bonds or of any other contract with bondholders, including an indenture of trust or similar instrument, may be amended or abrogated, and the amount of bonds that holders of which must consent to the resolution or contract, and the manner in which such consent may be given.
  15. The subordination of the security of any bonds issued under this chapter and the payment of principal and interest on those bonds, to the extent deemed feasible and desirable by the governing body, to other bonds or obligations of the district issued to finance or refinance the project or that may be outstanding when the bonds thus subordinated are issued and delivered.

Nothing in this section authorizes any district to do anything in any manner or for any purpose which would result in the creation or incurring of a debt or indebtedness or the issuance of any instrument which would constitute a debt or indebtedness within the meaning of any provision, limitation, or restriction of the Constitution of North Dakota relating to the creation or incurring of a debt or indebtedness or the issuance of an instrument constituting a debt or indebtedness.

Source:

S.L. 1995, ch. 601, § 1.

61-35-39. Liability of district for bonds — Taxing power prohibited — Bond not a lien.

Revenue and refunding bonds issued under this chapter may not be payable from or charged upon any funds other than the revenue pledged to their payment and the district issuing the bonds may not be subject to any pecuniary liability. The holder of any such bonds may not enforce payment of the bonds against any property of the district. Bonds issued under this chapter do not constitute a charge, lien, or encumbrance upon any property of the district. Each bond issued under this chapter must recite in substance that the bond, and interest on the bond, is payable solely from the revenue pledged to the payment and that the bond does not constitute a debt of the district within the meaning of any constitutional or statutory limitation.

Source:

S.L. 1995, ch. 601, § 1.

61-35-40. Duties of district and officers.

To adequately secure the payment of bonds and interest on the bonds, any district issuing bonds under this chapter, and the district’s officers, agents, and employees shall:

  1. Pay or cause to be paid punctually the principal and interest of every bond on the dates, at the places, in the manner, and out of the funds provided in the refunding bond and in accordance with the resolution authorizing its issuance.
  2. Operate the project in an efficient and economical manner and establish, levy, maintain, and collect related necessary or proper fees, tolls, rentals, rates, and other charges. Such fees, tolls, rentals, rates, and other charges must be sufficient, after making due and reasonable allowances for contingencies and for a margin of error in the estimates, at least:
    1. To pay all current expenses of operation and maintenance of the project;
    2. To pay the interest and principal on the bonds as they become due;
    3. To comply with the terms of the resolution authorizing the issuance of the bonds or any other contract or agreement with the holders of the refunding bonds; and
    4. To meet any other obligations of the district which are charges, liens, or encumbrances upon the revenues of the project.
  3. Operate, maintain, preserve, and keep every part of the project in good repair, working order, and condition.
  4. Preserve and protect the security of the bonds and the rights of the bondholders and warrant and defend such rights against all claims and demands.
  5. Pay and discharge all lawful claims for labor, materials, and supplies, which, if unpaid, might become by law a lien or charge upon the revenues, or any part of the revenues, superior to the lien of the bonds or which might impair the security of the bonds.
  6. Hold in trust the revenues pledged to the payment of the bonds for the benefit of the holders of the bonds and apply the revenues only as provided by the resolution authorizing the issuance of the bonds, or, if the resolution is modified, as provided in the modified resolution.
  7. Keep proper separate books of record and accounts of the project in which complete and correct entries must be made of all transactions relating to any part of the project. All books and papers of the district are subject to inspection by the holders of ten percent or more of the outstanding bonds or of their representatives authorized in writing.

None of the duties contained in this section require any expenditure by the district of any funds other than revenue received from the project. The performance of the duties enumerated in this section is of the essence of the contract of the district with the bondholders.

Source:

S.L. 1995, ch. 601, § 1.

61-35-41. Remedies of bondholders in general.

Subject to any contractual limitations binding upon the holders of any issue of bonds, or a trustee for the holders, including the restriction of the exercise of any remedy to a specified proportion or percentage of the holders, any holder of bonds or trustee, for the equal benefit and protection of all bondholders similarly situated, may:

  1. By mandamus or other suit, action, or proceeding at law or in equity, enforce the holder’s rights against the district and its board and any of its officers, agents, and employees and may require the district or the board or any officers, agents, or employees of the district or board to perform their duties and obligations under this chapter and their covenants and agreements with bondholders.
  2. By action or suit in equity, require the district and the board to account as if they were the trustees of an express trust.
  3. By action or suit in equity, enjoin any acts or things that may be unlawful or in violation of the rights of the bondholders.
  4. Bring suit upon the bond.

A right or remedy conferred by this chapter upon any bondholder, or upon any trustee for a bondholder, is not intended to be exclusive of any other right or remedy, but each such right or remedy is cumulative and in addition to every other right or remedy and may be exercised without exhausting and without regard to any other remedy conferred by this chapter or by any other law of this state.

Source:

S.L. 1995, ch. 601, § 1.

61-35-42. Receiver of project — When appointed.

If the district defaults in the payment of the principal or interest on any of the bonds when due, whether at maturity or upon call for redemption, and the default continues for a period of thirty days, or if the district or the board, or officers, agents, or employees of the district fail or refuse to comply with the provisions of this chapter, or default in any agreement made under this chapter, or default in any agreement made with the holders of the bonds, any bondholder, or the trustee for any bondholder, may apply to the district court of the county in which all or any part of the project is located for the appointment of a receiver of the project whether or not all of the bonds have been declared due and payable and whether or not the holder or trustee is seeking or has sought to enforce any other right or to exercise any other remedy in connection with the bonds. Upon such application, the court may appoint a receiver of the project. If the application is made by the holders of twenty-five percent in principal amount of the outstanding bonds, or by any trustee for holders of the bonds in that principal amount, the court shall appoint a receiver of the project.

Source:

S.L. 1995, ch. 601, § 1.

61-35-43. Powers and duties of receiver of project.

A receiver appointed under section 61-35-42, directly or by agents and attorneys, shall immediately enter into and upon and take possession of the entire project and may exclude from the project the district, its board, officers, agents, and employees, and all persons claiming under them. The receiver shall have, hold, use, operate, manage, and control the entire project in the name of the district or otherwise as determined by the receiver. The receiver shall exercise all the rights and powers of the district with respect to the project. The receiver shall maintain the project and restore and keep it insured and make all repairs the receiver deems necessary, proper, or expedient. The receiver shall establish, levy, maintain, and collect such fees, tolls, rentals, and other charges in connection with the project as the receiver deems necessary, proper, and reasonable. The receiver shall collect all revenues, deposit them in a separate account, and apply them as the court directs.

Source:

S.L. 1995, ch. 601, § 1.

61-35-44. Court may direct receiver to surrender possession of project.

After payment of all that is due upon the bonds and any other obligations that are a charge, lien, or encumbrance on the revenues of the project under any of the terms of any covenants or agreements with bondholders, and after all defaults have been made good, the court, after notice and hearing as it deems proper, may direct the receiver to surrender the possession of the project to the district. The holders of the bonds have the same right to secure the appointment of a receiver upon any subsequent default as is provided in this chapter in the case of an original default.

Source:

S.L. 1995, ch. 601, § 1.

61-35-45. Receiver subject to jurisdiction of court — Jurisdiction of court.

A receiver under this chapter acts under the direction and supervision of the appointing court and is subject to the orders of that court and may be removed by it. This chapter does not limit the jurisdiction of the court to enter orders it deems necessary for the receiver to exercise any functions set forth in this chapter.

Source:

S.L. 1995, ch. 601, § 1.

61-35-46. Construction.

Powers under this chapter are in addition and supplemental to and not in substitution for, and the limitations imposed by this chapter do not affect the powers conferred by, any other law. Bonds may be issued under this chapter without regard to any other laws of this state, except as provided in section 61-35-39. The project may be acquired, purchased, constructed, reconstructed, improved, bettered, and extended, and bonds may be issued under this chapter for those purposes, notwithstanding that any other law may provide for the acquisition, purchase, construction, reconstruction, improvement, betterment, and extension of a like project or for the issuance of bonds for like purposes, and without regard to the requirements, restrictions, debt, or other limitations or other provisions contained in any other law, including any requirement for any restriction or limitation on the incurring of indebtedness or the issuance of bonds. If this chapter is inconsistent with any other law of this state, the provisions of this chapter are controlling with reference to the issuance of bonds.

Source:

S.L. 1995, ch. 601, § 1.

61-35-47. Limitations on authorizations contained in chapter — Effect of chapter on bonds issued before August 1, 1995.

Nothing in this chapter may be deemed in any way to:

  1. Alter the terms of any agreements made with the holders of any outstanding notes, bonds, or other obligations of the district, before August 1, 1995;
  2. Authorize the district to alter the terms of any such agreements, or to impair, or to authorize the district to impair, the rights and remedies of any creditors of the district; or
  3. To authorize any district to do anything in any manner or for any purpose which would result in the creation or incurring of a debt or indebtedness or the issuance of any instrument that would constitute a debt or indebtedness within the meaning of any provision, limitation, or restriction of the Constitution of North Dakota relating to the creation or incurring of a debt or indebtedness or the issuance of an instrument constituting a debt or indebtedness.

Source:

S.L. 1995, ch. 601, § 1.

61-35-48. Power of district to defray expense of improvements by special assessments.

Upon complying with this chapter, a district may defray the expense of any or all of the improvements by special assessments, including the construction of all or part of a water supply system or a sewerage system, or both, or any improvement, extension, or replacement of such systems, including the construction and erection of wells, intakes, pumping stations, settling basins, filtration plants, standpipes, water towers, reservoirs, water mains, sanitary and storm sewer mains and outlets, facilities for the treatment and disposal of sewage and other district, industrial, and domestic wastes, and all other appurtenances, contrivances, and structures used or useful for a complete water supply and sewerage system. In planning an improvement project, the board may include in the plans any and all items of work and materials which in its judgment are necessary or reasonably incidental to the completion of an improvement project of that type.

Source:

S.L. 1995, ch. 601, § 1.

61-35-49. Waterworks and water mains — Acquisition of waterworks, sewage treatment and disposal plants, and sewer systems.

The provisions of this chapter relating to water mains and waterworks apply only to districts that own or contemplate owning a system of waterworks and water mains. In the purchase of a waterworks system or of a sewage treatment or disposal plant or of a system of sewers, either by eminent domain in accordance with chapter 32-15, or otherwise, a district may create improvement districts, direct the preparation of plans and specifications, adopt a resolution declaring the purchase of the facilities necessary, and take all other proceedings prescribed by this chapter which would be taken in case of the construction of such facilities by the district itself for the purpose of defraying the cost by special assessment of the benefited property. The benefited property may be specially assessed for the purchase of such facilities, either separately or as a part of a new system, the same as if the facilities were constructed entirely anew.

Source:

S.L. 1995, ch. 601, § 1; 2007, ch. 293, § 45.

61-35-50. Acquiring property for sewers, water mains, and water supply beyond district limits.

When it is necessary to conduct the sewage of a district or to acquire a supply of water beyond the district limits and to construct mains or aqueducts to conduct water or sewage to the district limits, the board by grant, purchase, or condemnation proceedings may acquire private property over which to construct the sewer, or upon and over which to establish facilities for obtaining and storing such water supply and aqueducts or mains for conducting water to the corporate limits. Public property may be acquired for those purposes by grant or purchase from the government or public corporation owning the property. The cost of acquiring such property and building such sewer or other facilities upon or over the property may be included in the cost of construction or acquisition of a district waterworks or sewerage system and in the district’s special assessments levied, or the entirety of such a project may be completed as an improvement to an existing waterworks or sewage system and special assessments may be levied for that purpose in accordance with the provisions of this title.

Source:

S.L. 1995, ch. 601, § 1.

61-35-51. Condemnation of land and rights of way for special improvements — Taking of possession — Trial — Appeal — Vacation of judgment.

When property required to make any improvement authorized by this chapter is to be taken by condemnation proceedings, the court, upon request by resolution of the board of the district making the improvement, shall call a special term of court for the trial of the proceedings and may summon a jury for the trial. The proceedings must be instituted and prosecuted in accordance with chapter 32-15, except that when the interest sought to be acquired is a right of way for the laying of any main, pipe, ditch, canal, aqueduct, or flume for conducting water, storm water, or sewage, whether within or without the district, the district may make an offer to purchase the right of way and may deposit the amount of the offer with the clerk of the district court of the county in which the right of way is located, and may then take possession of the right of way. The offer must be made by resolution of the board of the district, and a copy of the resolution must be attached to the complaint filed with the clerk of court in accordance with section 32-15-18. The clerk shall immediately notify the owners of the land on which the right of way is located of the deposit by causing a notice to be appended to the summons when served and published in the proceedings as provided in the North Dakota Rules of Civil Procedure, stating the amount deposited or agreed in the resolution to be deposited. The owner may then appeal to the court by filing an answer to the complaint in the manner provided in the North Dakota Rules of Civil Procedure, and may have a jury trial, unless a jury is waived, to determine the damages. However, upon due proof of the service of the notice and summons and upon deposit of the aggregate sum agreed in the resolution, the court may without further notice make and enter an order determining the district to be entitled to take immediate possession of the right of way. If under laws of the United States proceedings for the acquisition of any right of way are required to be instituted in or removed to a federal court, the proceedings may be taken in that court in the same manner and with the same effect as provided in this section and the clerk of the district court of the county in which the right of way is located shall perform any and all of the duties set forth in this section, if the clerk is directed to do so by the federal court. The proceedings must be determined as speedily as practicable. An appeal from a judgment in the condemnation proceedings must be taken within sixty days after the entry of the judgment and appeal must be given preference by the supreme court over all other civil cases except election contests. No final judgment in the condemnation proceedings awarding damages to property used by a district for sewer or other purposes may be vacated or set aside if the district pays to the defendant, or into court for the defendant, the amount awarded in cash. The district may levy special assessments within the district to pay all or part of the judgment. To provide funds for the payment of the judgment or for the deposit of the amount offered for purchase of a right of way, the district may issue bonds on the fund of the improvement district as provided in section 61-35-84, in anticipation of the levy and collection of special assessments or revenues to be appropriated to the fund in accordance with this chapter. The bonds may be issued upon or after the commencement of the condemnation proceedings. Upon the failure of the district to make payment in accordance with this section, the judgment in the condemnation proceedings may be vacated.

Source:

S.L. 1995, ch. 601, § 1.

61-35-52. Improvement districts to be created.

For an improvement project under section 61-35-48 and defraying the cost of the project by special assessments, a district may create water districts, sewer districts, and water and sewer districts, and may extend any such district when necessary. The appropriate special improvement district must be created by resolution. The district must be designated by a name appropriate to the type of improvement for which it is created and by a number distinguishing it from other improvement districts. Nothing in this chapter prevents a district from making and financing any improvement and levying special assessments for the improvement under any alternate procedure in this title. For examinations or surveys, the board or its employees, after written notice to each landowner, may enter upon any land on which the proposed project is located or any other lands necessary to gain access.

Source:

S.L. 1995, ch. 601, § 1.

61-35-53. Size and form of improvement districts — Regulations governing.

Any improvement district created by a district may embrace two or more separate property areas. Each improvement district must be of such size and form as to include all properties which in the judgment of the board, after consultation with the engineer planning the improvement, will be benefited by the construction of the improvement project which is proposed to be made in or for the district, or by any portion of the project. A single district may be created for an improvement of the type specified in section 61-35-48, notwithstanding any lack of uniformity among the types, items, or quantities of work and materials to be used at particular locations throughout the improvement district. The jurisdiction of a district to make, finance, and assess the cost of any improvement project may not be impaired by any lack of commonness, unity, or singleness of the location, purpose, or character of the improvement, or by the fact that any one or more of the properties included in the improvement district is subsequently determined not to be benefited by the improvement, or by a particular portion of the improvement project, and is not assessed for that purpose. The board may omit from a water or sewer district properties within the district limits which are benefited by the improvement but do not abut upon a water or sewer main, without prejudice to the right and power of the district subsequently to assess such properties to the extent and the manner permitted by law. The board may by resolution enlarge an improvement district in which an improvement is proposed or under construction upon receipt of a petition signed by the owners of three-fourths of the area to be added to the district.

Source:

S.L. 1995, ch. 601, § 1.

61-35-54. Engineer’s report required — Contents.

After a special improvement district has been created, the board, if it deems it necessary to make any of the improvements set out in section 61-35-48 in the manner provided in this chapter, shall direct the engineer for the district, or some other competent engineer, to prepare a report as to the general nature, purpose, and feasibility of the proposed improvement. The engineer shall prepare profiles, plans, and specifications of the proposed project and estimates of the total cost. The estimate of costs prepared by the engineer must include acquisition of right of way and must be in sufficient detail to allow the board to determine the probable share of the total costs that will be assessed against each of the affected landowners in the proposed assessment district.

Source:

S.L. 1995, ch. 601, § 1.

61-35-55. Approval of plans, specifications, and estimates.

After receiving the engineer’s report required by section 61-35-54, the board may direct the engineer to prepare detailed plans and specifications for construction of the improvement. The plans and specifications must be approved by a resolution of the board.

Source:

S.L. 1995, ch. 601, § 1.

61-35-56. District engineer to retain copy of plans, specifications, and estimates — Sale of copies.

The engineer acting for the district shall retain a copy of the plans, specifications, and estimates that have been prepared for any improvement. The engineer shall furnish copies at the request of any person at a reasonable cost.

Source:

S.L. 1995, ch. 601, § 1.

61-35-57. Plans, specifications, and estimates filed in office of district.

The plans, specifications, and estimates prepared as directed under section 61-35-55 are the property of the district, must be filed in the district office, and must remain on file subject to inspection by any interested person.

Source:

S.L. 1995, ch. 601, § 1.

61-35-58. Hearing — Notice — Contents.

Upon the filing of the engineer’s report provided for in section 61-35-54, and after satisfying the requirements of section 61-35-55, the district board shall fix a date and place for public hearing on the proposed project. The place of hearing must be in the vicinity of the proposed project and must be convenient and accessible for the majority of the landowners subject to assessment for the project or whose property is subject to condemnation for the proposed project. The board shall cause a complete list of the benefits and assessments to be made, setting forth each county, township, or city assessed in its corporate capacity as well as each lot, piece, or parcel of land assessed, the amount each is benefited by the improvement, and the amount assessed against each. At least ten days before the hearing, the board shall file with the county auditor of each county in which the project is or will be located the list showing the percentage assessment and approximate assessment in dollars against each parcel of land benefited by the proposed project. Notice of the filing must be included in the notice of hearing. Notices of the hearing must contain a copy of the resolution of the board as well as the time and place where the board will conduct the hearing. The notice of hearing must specify when and where votes concerning the proposed project may be filed and contain an assessment list showing the percentage assessment and approximate assessment in dollars against each parcel of land benefited by the proposed project. The board shall cause the notice of hearing to be published once a week for two consecutive weeks in newspapers of general circulation in the area in which the affected landowners reside and in the official county newspaper of each county in which the benefited lands are located. The date set for the hearing may not be fewer than twenty days after the mailing of the notice. A record of the hearing must be made by the board, including a list of affected landowners present in person or by agent, and the record must be preserved in the minutes of the meeting. Affected landowners and the governing body of any county, township, or city to be assessed must be informed at the hearing of the probable total cost of the project and their individual share of the cost and the portion of their property, if any, to be condemned for the project.

Source:

S.L. 1995, ch. 601, § 1.

61-35-59. Voting on proposed projects.

At the hearing, the affected landowners and any county, township, or city to be assessed must be informed when and where votes concerning the proposed project may be filed. Affected landowners and the governing body of any county, township, or city to be assessed have thirty days after the date of the hearing to file their votes with the secretary of the district. Once the deadline for filing votes has been reached, no more votes may be filed and no person may withdraw a vote. Any withdrawal of a vote concerning the proposed project before that time must be in writing. When the votes have been filed and the deadline for filing votes has passed, the board shall immediately determine whether the project is approved. If the board finds that fifty percent or more of the total votes filed are against the proposed project, then the vote constitutes a bar against proceeding further with the project. If the board finds that the number of votes filed against the proposed project is less than fifty percent of the votes filed, the board shall issue an order establishing the proposed project and may proceed, after complying with the requirements of sections 61-35-62 and 61-35-63, to contract or provide for the construction or maintenance of the project in substantially the manner and according to the forms and procedure provided in sections 61-35-88 through 61-35-103. The board may enter into any agreement with any federal or state agency under the terms of which the contract for the project is to be let by the federal agency, the state agency, or a combination thereof. In projects where there is an agreement that a party other than the board will let the contract, the board may dispense with all of the requirements of sections 61-35-88 through 61-35-103. Upon making an order establishing or denying establishment of a project, the board shall publish notice of the order in a newspaper of general circulation in the area in which the affected landowners reside and in the official county newspaper of each county in which the benefited lands are located. Any right of appeal begins to run on the date of publication of the notice.

Source:

S.L. 1995, ch. 601, § 1.

61-35-60. Voting right or powers of landowners.

In order that there may be a fair relationship between the amount of liability for assessments and the power of objecting to the establishment of a proposed project, the voting rights of affected landowners on the question of establishing the project are as provided in this section. The landowner of land affected by the project has one vote for each dollar of assessment to which the land is subject or one vote for each dollar of the assessed valuation of land condemned for the project, as determined in accordance with title 57. The governing body of any county, township, or city to be assessed has one vote for each dollar of assessment against such county, township, or city. There may be only one vote for each dollar of assessment, regardless of the number of owners of a tract of land. If more than one owner of a tract of land exists, the votes must be prorated among them in accordance with each owner’s property interest. A written power of attorney authorizes an agent to protest a project on behalf of any affected landowner or landowners.

Source:

S.L. 1995, ch. 601, § 1.

61-35-61. Assessment of cost of project.

When the district board proposes to make any special assessment under this chapter, the board, prior to the hearing required under section 61-35-58 shall inspect any and all lots and parcels of land that may be subject to assessment and shall determine from the inspection the particular lots and parcels of lands which, in the opinion of the board, will be especially benefited by the construction of the work for which the assessment is made and shall assess the proportion of the total cost of acquiring right of way and constructing and maintaining such improvement in accordance with benefits received but not exceeding such benefits, against:

  1. Any county, township, or city, in its corporate capacity, which may be directly or indirectly benefited by the improvement.
  2. Any lot, piece, or parcel of land that is directly benefited by the improvement.

In determining benefits, the board shall consider, among other factors, property values, degree of improvement of properties, and productivity. Property belonging to the United States is exempt from assessment unless the United States has provided for the payment of any assessment that may be levied against its property for benefits received. Benefited property belonging to the state, a county, a city, a school district, a park district, or a township is not exempt from assessment and political subdivisions that own assessed property shall provide for the payment of such assessments, including installments and interest, by the levy of taxes according to law. Any county, township, or city assessed in its corporate capacity for benefits received shall provide for the payment of those assessments, installments, and interest from its general fund or by levy of a general property tax against all the taxable property in the political subdivision in accordance with law. No tax limitation provided by any statute of this state applies to tax levies made by any political subdivision for paying any special assessments made under this chapter. There must be attached to the list of assessments a certificate signed by a majority of the members of the board certifying that it is a true and correct assessment of the benefit described to the best of their judgment and stating the several items of expense included in the assessment.

Source:

S.L. 1995, ch. 601, § 1.

61-35-62. Assessment list to be published — Notice of hearing — Alteration of assessments — Confirmation of assessment list — Filing.

After entering an order establishing the project, the district board shall cause the assessment list to be published once each week for two successive weeks in the newspapers of general circulation in the district and in the official county newspaper of each county in which the benefited lands are located. The publication must include a notice of the time and place the board will meet to hear objections to any assessment by any interested party, or an agent or attorney for that party. The date set for the hearing must be not less than twenty days after the first publication of the notice. At the hearing, the board may make such alterations in the assessments as in its opinion may be just and necessary to correct any error in the assessment but must make the aggregate of all assessments equal to the total amount required to pay the entire cost of the work for which the assessments are made or the part of the cost to be paid by special assessment. An assessment may not exceed the benefit as determined by the board to the parcel of land or political subdivision assessed. The board shall then confirm the assessment list and the secretary shall attach to the list a certificate that it is correct as confirmed by the board. The secretary shall file the list in the office of the district secretary.

Source:

S.L. 1995, ch. 601, § 1.

61-35-63. Appeal to department of water resources.

Within ten days after the hearing under section 61-35-62, affected landowners and any political subdivision subject to assessment, having not less than twenty-five percent of the possible votes as determined under section 61-35-60, who believe that the assessment has not been fairly or equitably made, or that the project is not properly located or designed, may appeal to the department of water resources by petition, to review the assessments and examine the location and design of the proposed project. Upon receipt of a petition, the department shall examine the lands assessed and the location and design of the proposed project, and if it appears that the assessments have not been made equitably, the department may correct the assessments, and the department’s correction and adjustment of assessments is final. If it appears to the department the project has been located or designed improperly, the department may order a relocation and redesign, which must be followed in the construction of the proposed project. Upon filing a bond for two hundred fifty dollars with the board for the payment of the costs of the department in the matter, any landowner or political subdivision claiming to receive no benefit from the project may appeal to the department the question of whether there is any benefit. The appeal must be filed with the department within ten days after the hearing on assessments in section 61-35-62. The department may not determine the specific amount of benefit upon an appeal by an individual landowner or political subdivision but may determine only if there is any benefit to the landowner or political subdivision. The determination of the department upon the appeal is final.

Source:

S.L. 1995, ch. 601, § 1; 2021, ch. 488, § 211, eff August 1, 2021.

61-35-64. When assessments may be made.

After the requirements of this chapter have been satisfied and a contract and bond for any work for which a special assessment is to be levied have been approved by the district board, the board may direct special assessments to be levied for the payment of appropriate costs and the secretary shall certify to the board the items of total cost to be paid by special assessments so far as they have been ascertained. The certificate must include the estimated construction cost under the terms of any contract, a reasonable allowance for cost of extra work that may be authorized under the plans and specifications, acquisition of right of way, engineering, fiscal agents’ and attorney’s fees for any services in connection with the authorization and financing of the improvement, cost of publication of required notices, printing of improvement bonds, cost necessarily paid for damages caused by such improvement, interest during the construction period, and all expenses incurred in making the improvement and levy of assessments.

A contract or contracts may not be awarded which exceed, by forty percent or more, the estimated cost of the project as presented to and approved by the affected landowners.

Source:

S.L. 1995, ch. 601, § 1.

61-35-65. Reassessment of benefits.

The district board may hold at any time or, upon petition of any affected landowner or political subdivision which has been assessed after a project has been in existence for at least one year, shall hold a hearing for the purpose of determining the benefits of the project to each tract of land affected. At least ten days’ notice of the hearing must be given by publication in the newspaper or newspapers having general circulation in the district and in the official county newspaper of each county in which the benefited lands are located and by mailing notice by ordinary mail to each owner of land whose assessment is proposed to be raised as determined by the records of the recorder or county treasurer. The provisions of this chapter governing the original determination of benefits and assessment of costs apply to any reassessment of benefits carried out under this section. The board may not be forced to make a reassessment more than once every ten years. Any assessment or balance of an assessment supporting a project fund may not be reduced or impaired by reassessment or otherwise so long as bonds payable out of such fund remain unpaid and moneys are not available in such fund to pay all such bonds in full, with interest. Costs of maintenance must be prorated in accordance with any plan for reassessment of benefits that has been adopted.

Source:

S.L. 1995, ch. 601, § 1; 2001, ch. 120, § 1.

61-35-66. Correction of errors and mistakes in special assessments — Requirements governing.

If mathematical errors or other mistakes occur in making any assessment resulting in a deficiency in that assessment, the district board shall cause additional assessments to be made in a manner substantially complying with chapter 40-26 as it relates to special assessments.

Source:

S.L. 1995, ch. 601, § 1.

61-35-67. Lien of special assessment.

A special assessment imposed by a district, with accrued interest and penalties, is a lien upon the property on which the assessment is levied from the time the assessment list is approved by the district board until the assessment is fully paid. The liens have precedence over all other liens except general tax liens and may not be divested by any judicial sale. Mistake in the description of the property covered by the special assessment lien or in the name of the owner of such property does not defeat the lien if the assessed property can be identified by the description in the assessment list. This chapter must be considered notice to all subsequent encumbrances of the priority of special assessments imposed under this chapter.

Source:

S.L. 1995, ch. 601, § 1.

61-35-68. Sewer or water improvements in districts may be paid for by service charges.

A district constructing a sewer or water improvement under the special assessment method may resolve in the resolution or ordinance required by section 61-35-52, that a portion of the cost of the improvement must be raised by service charges for the use of the improvement and of the utility of which it forms a part. If the district so resolves, it may determine in its resolutions, ordinances, and other proceedings relating to the levying of special assessments and the issuing of bonds to pay the cost of such improvement, that a specified portion or all of such cost must be assessed specially against any property specially benefited and may cause to be assessed only the portion so determined. In that event the entire remainder of the cost, including interest as well as principal of any bonds issued, over and above the amount of special assessments actually collected and received from time to time in the fund of the improvement district, must be paid from the net revenues derived from the service charges. All of the applicable provisions of this chapter relating to special assessments are applicable to such improvements except as to the portion of the cost of improvements resolved or ordained to be paid by service charges. The board of the district shall provide for the establishment, imposition, and collection of service charges for the services furnished by the improvement and the utility of which it forms a part, and in that connection it has all the rights and powers respecting such service charges as it would have with respect to like matters if the improvement were made in accordance with chapter 40-35. The net revenues derived from the imposition and collection of the service charges or any portion of the service charges as are determined by the board in the resolutions and ordinances must be paid into the appropriate improvement district funds created under section 61-35-83. The revenues when collected must be used and applied in the same manner as moneys paid into such funds from the collection of special assessments. The board of any district issuing bonds to finance any such improvement, in its resolutions and ordinances, may establish an assessment reserve in the fund of the improvement district, to which it may appropriate net revenues of the utility or system from time to time received in excess of amounts required, with special assessments then on hand, to meet the principal and interest next due on the bonds. Before November first of any year the district may by resolution determine the proportion which the amount then on hand in the assessment reserve, and irrevocably appropriated to the payment of the bond, bears to the aggregate amount of the installment of the special assessments levied for the improvement which is payable in the following year, including interest. The district may direct the auditor to reduce, by not more than a proportionate amount, the total of that installment and interest which would otherwise be placed upon the tax list of the district for the current year, against each lot and tract of land assessed or taxed for improvement. If the installment of the special assessment on any property has been prepaid, the board may direct the district to refund, out of the assessment reserve, to the owner of the property at the time of the refund as indicated in the records of the recorder of the county, a sum not exceeding a similar proportion of the principal amount of such installment, excluding interest.

Source:

S.L. 1995, ch. 601, § 1; 2001, ch. 120, § 1.

61-35-69. Abbreviations, letters, or figures may be used in proceedings for levy and collection of special assessments.

In all proceedings for the levy and collection of special assessments, abbreviations, letters, and figures may be used to denote all or parts of additions, lots, lands, blocks, sections, townships, ranges, years, days of the month, and amounts of money.

Source:

S.L. 1995, ch. 601, § 1.

61-35-70. District office to keep complete record of improvements — Record as evidence.

The district office shall keep a complete record of all the proceedings taken in the matter of making any improvements under this chapter. The record must include all reports and confirmations, all petitions, orders, notices and proofs of publication, and resolutions of the board. The record, a certified transcript of the record, or the original papers, proofs of publications, orders, or resolutions on file in the office must be admitted in evidence in any court or place in this state without further proof as evidence of the facts in those documents.

Source:

S.L. 1995, ch. 601, § 1.

61-35-71. Defects and irregularities in improvement proceedings are not fatal.

Defects and irregularities in any proceedings had or to be had under this chapter relating to district improvements by the special assessment method, if the proceedings are for a lawful purpose and are unaffected by fraud and do not violate any constitutional limitation or restriction, do not invalidate the proceedings, and no action may be commenced or maintained and no defense or counterclaim in any action may be recognized in the courts of this state founded on any such defects or irregularities in the proceedings, unless commenced within thirty days of the adoption of the resolution of the board awarding the sale of bonds to finance the improvement.

Source:

S.L. 1995, ch. 601, § 1.

61-35-72. Payment of special assessments — Interest.

All special assessments levied under this title may be paid without interest within ten days after they have been approved by the board and thereafter bear interest at an annual rate not exceeding one and one-half percentage points above the average net annual interest rate on any bonds for the payment of which they are pledged on the total amount remaining unpaid.

Source:

S.L. 1995, ch. 601, § 1.

61-35-73. Lien between vendor and vendee of special assessments.

As between a vendor and vendee of real property, unless the purchase contract otherwise provides, the installments of all special assessments for local improvements which are required to be certified and returned to the county auditor in each year become a lien upon the real property upon which they are assessed from and after the first day of December in that year.

Source:

S.L. 1995, ch. 601, § 1.

61-35-74. Sewer special assessments extended over a period of not more than thirty years.

Special assessments for the payment of the cost of constructing any sewer are payable in equal annual amounts, or in such annual amounts as will permit the annual increase in payment of principal to approximate the annual decrease in the interest on amounts remaining unpaid, extending over a period of not exceeding thirty years as the board may fix by ordinance or resolution.

Source:

S.L. 1995, ch. 601, § 1.

61-35-75. Water main and waterworks special assessments extended over a period of not more than thirty years.

Special assessments for the payment of the cost of constructing or laying any water mains or constructing any waterworks are payable in equal annual amounts, or in such annual amounts as will permit the annual increase in payment of principal to approximate the annual decrease in the interest on amounts remaining unpaid, extending over a period of not more than thirty years as the board may fix by ordinance or resolution.

Source:

S.L. 1995, ch. 601, § 1.

61-35-76. Payments in full of assessments — Payments to county treasurer or district treasurer — Receipts.

The owner of any property against which an assessment has been made under this title for the cost of any improvement may pay in full or in part the amount remaining unpaid and the unpaid accumulated interest. The payment in full discharges the lien of the assessment upon that property. The payment may be made to the county treasurer upon all installments of the assessments which have been certified to the county auditor, and may be made to the district treasurer upon all portions of the assessment which have not been certified. Any person desiring to pay any portion of the assessment to the district treasurer shall obtain from the district treasurer a certificate of the amount due upon the assessment which has not been certified to the county auditor and shall present the certificate to the district treasurer. The district treasurer shall receive and collect that amount and issue a receipt to the person paying the assessment. The district treasurer shall note upon the treasurer’s records the payment of the assessment.

Source:

S.L. 1995, ch. 601, § 1.

61-35-77. Certification of assessments to county auditor.

When a district board, by resolution, has caused special assessments to be levied to cover the cost of constructing a project, the board shall determine the rate of interest unpaid special assessments are to bear, which rate may not exceed one and one-half percent above the bond rate. Interest on unpaid special assessments commences on the date the assessments are finally confirmed by the board. Special assessments may be certified and made payable in equal annual installments, the last of which must be due and payable not more than thirty years after date of the bonds to be paid. The secretary of the district shall certify to the county auditor of the county in which the district is situated, or if the district embraces more than one county, to the county auditor of each county in which district lands subject to such special assessments are situated, the total amount assessed against each piece, parcel, lot, or tract of land. The secretary of the district shall also file with the county auditor of each county in which district lands lie a statement showing the cost of the project and the part of the project to be financed by special assessments. Funds needed to pay the cost of maintaining a project may be raised in the same manner as funds were raised to meet construction costs. If the project was financed in whole or in part through the use of special assessments, the district board shall prorate the cost of construction or, if a reassessment of benefits has been adopted, the costs must be prorated in accordance with the reassessment of benefits as authorized by section 61-35-65. The district treasurer shall annually certify to the county auditor all uncertified installments of assessments which are to be extended upon the tax lists of the district for the current year, in the manner provided in this section. The annual certification must continue until the amount of moneys on deposit in the fund established under section 61-35-83 is sufficient to cover outstanding principal of and interest on any obligations issued to fund the projects, and in addition, to repay the district for any payments made by the district to fund deficiencies in the fund established under section 61-35-83.

Source:

S.L. 1995, ch. 601, § 1.

61-35-78. District treasurer to insert amount of improvements in county real estate book or other forms — Regulations governing.

The district treasurer shall notify the county auditor not later than August twentieth in each year of any special assessments that were made in the district in addition to those reported in the previous year. The county auditor shall make and deliver to the district treasurer on or before September twentieth each year a copy of the real estate assessment book or other forms for the current year covering all additions in which any special assessments have existed and where any will appear for the current year as advised by the district treasurer. The district treasurer shall insert in the proper columns under the appropriate headings the amount of each of the installments of the assessments on the lots or subdivisions of lots or tracts of land which are to be extended upon the tax lists of the district for the current year. The district treasurer shall show the total amount of special assessments certified to the county auditor for the current year. If a division of property has been made since the original assessment, the district treasurer shall make or cause to be made the proper division of the special assessments on the lots or tracts of land in the same manner as general taxes are divided and assessed as furnished by the county auditor. The district treasurer shall certify the special assessments to the county auditor by November first of each year.

Source:

S.L. 1995, ch. 601, § 1.

61-35-79. Extension of special assessments on tax lists — Collection — Payment over to district.

The county auditor shall extend the special assessments upon the tax lists of the district for the current year and the assessments with interest and penalties must be collected as general taxes are collected and paid over to the district treasurer and shall be placed by the district treasurer in the respective funds for which they were collected.

Source:

S.L. 1995, ch. 601, § 1.

61-35-80. Special assessment record book kept by county auditor — Assessments certified for more than one year.

The county auditor shall keep a special assessment record. When any district causes the installments of special assessments for a period of more than one year to be certified, the county auditor shall cause the certified special assessments to be recorded for the respective years and in the amounts shown in the certificate of the district treasurer. The certificate of the district treasurer must include a list of all lots and tracts of land upon which such assessments are levied, designating the purpose of the assessment, the fund to which it belongs, and the installment of such assessment for each year against each lot or tract, including interest.

Source:

S.L. 1995, ch. 601, § 1.

61-35-81. County treasurer to certify and receipt for amount of special assessments collected — Contents of certificate — Procedure for abatement.

Special assessments of any kind certified to the county auditor by the district treasurer must be paid to the county treasurer and included in the receipt required by section 57-20-08. If the county treasurer receives less than the full amount of taxes and special assessments due at any time on any lot or tract of real estate, the county treasurer shall allocate the amount of such payment between taxes and special assessments in proportion to the respective amounts of taxes and special assessments which are then due. When prorating any tax payment received before October fifteenth, the term “due”, as it pertains to real estate taxes, includes only the first installment of real estate taxes. Special assessments are not subject to abatement or refund by proceedings under chapter 57-32 but may be reviewed and corrected only in the manner and upon the conditions provided in chapter 40-26. The county treasurer, at the time set by law for the payment to the district treasurer of all the taxes and special assessments collected during the preceding month, shall certify the amounts of special assessments collected. The certificate must state specifically the lot or known subdivision as it appears on the tax books of the county treasurer, and the block, addition, amount collected, and amount credited to each lot or known subdivision, and the year for which the sum was collected. The certificate must be furnished to the district treasurer.

Source:

S.L. 1995, ch. 601, § 1.

61-35-82. Interest and penalties added to special assessments — County treasurer to collect and pay over.

The county treasurer shall add to all special assessments the same interest and penalties that are added in the case of general taxes and at the same time. The county treasurer shall collect the interest and penalties with the special assessments and shall pay all such interest and penalties collected over to the district treasurer.

Source:

S.L. 1995, ch. 601, § 1.

61-35-83. Special improvement moneys to be kept separate — Designation and numbering of funds — Diversion of moneys prohibited.

All special assessments and taxes levied and other revenues pledged under the provisions of this chapter to pay the cost of an improvement constitute a fund for the payment of that cost, including all principal of and interest on bonds and other obligations issued by the district to finance the improvement, and may be diverted to no other purpose. The district treasurer shall hold all moneys received for any such fund as a special fund to be applied to payment for the improvement. Each fund must be designated by the name and number of the improvement district in or for which the special assessments, taxes, and revenues are collected. When all principal and interest on bonds and other obligations of the fund have been fully paid, all moneys remaining in a fund may be transferred into the general fund of the district.

Source:

S.L. 1995, ch. 601, § 1.

61-35-84. Bonds — When payable — Amounts — Interest.

At any time after entering into a contract for a project to be financed in whole or in part by special assessments, a district may issue temporary and definitive bonds on the project fund, created for that purpose, in the manner and subject to the limitations prescribed in section 40-24-19. If the bonds are issued to finance a sewer or water project, the net revenues derived from the imposition of service charges to be imposed and collected with respect to the project as provided in section 61-35-68 may be pledged to payment of those bonds, except that the first maturity date of any such bond may not be less than two years from the date of issuance. Bonds issued under this section must be in amounts as in the judgment of the board will be necessary for the project. The bonds must bear interest at a rate or rates and be sold at a price resulting in an average net interest cost not exceeding twelve percent per annum if sold at private sale. There is no interest rate ceiling on bond issues sold at public sale or to the state or any of its agencies or instrumentalities. The bonds must state upon their face the purpose for which they are issued and the project fund from which they are payable and must be signed by the chairman of the board and countersigned by the secretary of the district. The bonds must be payable serially in such amounts as the board determines, extending over a period of not more than thirty years.

Source:

S.L. 1995, ch. 601, § 1.

61-35-85. Bonds may be used in making payments on contract — Bonds payable out of fund on which drawn — May be used to pay special assessments.

Improvement bonds may be used in making payments on contracts for construction of the project for which the special assessment fund was created, or may be sold for cash at not less than ninety-eight percent of par and accrued interest, and the proceeds, less accrued interest, must be credited to the construction account of the fund and must be used exclusively to pay those contracts and construction costs. Any balance remaining in any construction account after completion of any project must be transferred to the sinking fund account of the assessment fund. The treasurer of the district shall pay special assessment bonds as they mature and are presented for payment out of the fund on which they are drawn and shall cancel the bonds when paid.

Source:

S.L. 1995, ch. 601, § 1.

61-35-86. Refunding special assessment bonds — Purposes for which such bonds may be issued — Payment of bonds.

Any district having outstanding special assessment bonds, payable in whole or in part out of collections from special assessments, which are past due or which are redeemable, either at the option of the district or with the consent of the bondholders, may issue refunding special assessment bonds if there is not sufficient money in the project fund against which such bonds are drawn to pay the same. The issuance of refunding bonds must be authorized by resolution of the district board. The resolution must describe the bonds to be refunded and their amount and maturity. Refunding bonds may be issued for any of the following purposes:

  1. To extend the maturities of bonds payable in whole or in part by special assessments.
  2. To reduce the interest on the bonds.

Refunding bonds must bear such date, be in such date, be in such denominations, and mature serially within such time, not exceeding thirty years from date of issuance, as the board determines. The average rate of interest on the bonds may not exceed the average rate of interest on refunded bonds.

The treasurer of the district shall pay special assessment bonds as they mature and are presented for payment out of the fund against which they are drawn and shall cancel the bonds when paid. Any deficiency in any fund created for the payment of district bonds payable in whole or in part out of collections of special assessment taxes must be the general obligation of the district.

Source:

S.L. 1995, ch. 601, § 1.

61-35-87. Foreclosure of tax lien on property when general and special assessment taxes are delinquent.

Special assessments imposed under this chapter become due and delinquent and are subject to penalties for nonpayment at the same date and rates as first installments of real estate taxes at the same time and in the same manner as provided in title 57.

If there is no delinquent general property tax against a tract or parcel of land and it is foreclosed for special assessments alone, the notice of foreclosure of tax lien must state that the foreclosure is for special assessments and a tax deed in such case must be issued in the usual course of procedure.

Source:

S.L. 1995, ch. 601, § 1; 1999, ch. 503, § 46.

61-35-88. Call for bids — Contents — Advertising.

Proposals for the work of making improvements provided for in this chapter that exceed the amount provided for construction of a public improvement under section 48-01.2-02 must be advertised for by the board in the official newspaper of the county where the district office is located once each week for two consecutive weeks. The board may cause the work on two or more improvements to be combined in one advertisement and one contract awarded pursuant to that advertisement. The advertisement for bids must:

  1. Specify the work to be done according to the plans and specifications on file in the office of the district;
  2. Call for bids upon the basis of cash payment for the work;
  3. State the time within which the bids will be received; and
  4. State the time within which the work on the improvement is to be completed.

The board may require bidders to state also the rate of interest, not exceeding seven percent per annum, which the bonds to be received and accepted by the bidder at par in payment for the work are to bear.

Source:

S.L. 1995, ch. 601, § 1; 2003, ch. 554, § 4; 2007, ch. 403, § 26.

61-35-89. Bid to be accompanied by a bond — Bond retained upon failure of bidder to contract — Amount of bond.

Each bid for any work to be done under this chapter must be accompanied by a separate envelope containing a bidder’s bond in the amount of five percent of the amount of the bid, executed as provided in this chapter and running to the district that the bidder will enter into a contract for performance of the work in case a contract is awarded to the bidder. If any bidder to whom a contract is awarded fails or refuses to enter into the contract when requested to do so, the bond accompanying the bidder’s bid must be retained by the district as liquidated damages for the failure. The bond must be delivered to the district office and credited to the fund from which the consideration for the work is payable. The sufficiency of any bond filed by a bidder must be determined by the board at the time of considering bids.

Source:

S.L. 1995, ch. 601, § 1.

61-35-90. Execution of bidder’s bond.

The bidder’s bond must be executed by the bidder as principal and may be provided by a surety company authorized to do business in this state as surety or by a bank letter of credit, a cash bond, or a certified check.

Source:

S.L. 1995, ch. 601, § 1.

61-35-91. Conditions of bidder’s bond.

A bidder’s bond must be made payable to the district and conditioned that if the principal’s bid is accepted and the contract for the work of improvement awarded to the bidder, the bidder, within ten days after the acceptance of the bid, or within such further time as the board grants, will enter into and execute a contract bond in a sum equal to the amount of the bid, and a contract in writing to and with the district well and faithfully to perform and complete the work for which the bid was accepted, in accordance with the plans and specifications and the terms of the bid and within the time required by the terms of the contract, and that the bidder will pay for all the labor and materials used in such work. The bond must be for the benefit of the district.

Source:

S.L. 1995, ch. 601, § 1.

61-35-92. Bids — Filing — Sealing — Endorsing — Opening — Considering.

Bids for the work to be let under this chapter must be forwarded to the district office and must be sealed securely to prevent opening without detection. There must be endorsed upon the outside of the envelope containing the bid a statement of what work the proposal is for. The bids must be opened by the board at the expiration of the time limited in the advertisement for receiving the same, which may not be less than fifteen days after the first publication of the advertisement, or at such other time as the board may appoint. Only bids that are accompanied by the bond provided for in section 61-35-89 may be considered by the board.

Source:

S.L. 1995, ch. 601, § 1.

61-35-93. Opening of bids — Bids to be entered on minutes.

After the bids have been opened and made public, they must be entered upon the minutes of the meeting of the board of the district at which they are considered, and they must be preserved carefully by the district secretary.

Source:

S.L. 1995, ch. 601, § 1.

61-35-94. Rejection of bids — Readvertising for bids or construction by district without contract — Reevaluation of project.

If in its opinion the best interests of the district require, the board may reject any and all bids filed under this chapter. If all bids are rejected, the board may:

  1. Readvertise for new bids;
  2. Cause the work described in the plans, specifications, and estimates to be done directly by the district by the employment of labor and the purchase of materials required, or in any other manner the board considers proper, and payment for the work may be provided through special assessments in the same manner as though the work had been performed under contract, provided this work amounts to no more than the amount provided for construction of a public improvement under section 48-01.2-02; or
  3. Cause the work described in the plans, specifications, and estimates to be reviewed and re-evaluated by the engineer for the district so that the board may determine whether the entire project or only a portion of the project is feasible.

Source:

S.L. 1995, ch. 601, § 1; 2003, ch. 554, § 5; 2007, ch. 403, § 27.

61-35-95. Engineer’s statement of estimated cost required — Board to enter into contracts.

Before adopting or rejecting any bid filed under this chapter, the board shall require the engineer for the district to make a careful and detailed statement of the estimated cost of the work. The board may not award the contract to any bidder if the engineer’s estimate prepared under this section exceeds the engineer’s estimate prepared under section 61-35-54 by forty percent or more. If all bids are not rejected, the board shall award the contract to the lowest responsible bidder, upon the basis of cash payment for the work, if the bidder has furnished the certified check or bidder’s bond required under the provisions of this chapter.

Source:

S.L. 1995, ch. 601, § 1.

61-35-96. Contractor’s bond — Execution.

Within the time fixed by the board for executing the contract, the successful bidder shall file with the district a contract bond in a sum equal to the full amount of the contract. The bond must be executed by the bidder or contractor as principal and by a surety company authorized to do business in this state as surety.

Source:

S.L. 1995, ch. 601, § 1.

61-35-97. Conditions for contractor’s bond.

The contractor’s bond must be made payable to the district and must be conditioned:

  1. That the contractor well and faithfully will perform the work bid for in accordance with the terms of and within the time provided for in the contract, and pursuant to the plans and specifications for the work on file in the district office;
  2. That the contractor will pay for all labor and material used in that work; and
  3. That in case of a default on the part of the bidder or contractor in the performance of the work as provided in the contract, the sum named in the bond must be taken and held to cover the amount necessary to compensate the district for the correction, repair, or replacement caused by the default, and that the full amount may be recovered from the bidder and the bidder’s sureties in an action by the district against them on the bond only in the event of a complete failure of performance on the part of the contractor. Nothing in this section may be construed to prevent the district from receiving the amount, not in excess of the amount of the bond, necessary to compensate the district for correction, repair, or replacement caused by default of the contractor which does not constitute complete failure of performance by the contractor.

Source:

S.L. 1995, ch. 601, § 1.

61-35-98. Approval of bonds — Return of bidder’s bond.

The contractor’s bond must be approved by the governing body, and thereupon it is and remains in full force and effect. Upon the execution of the contract and the approval of the contract bond, the bidder’s bond must be returned.

Source:

S.L. 1995, ch. 601, § 1.

61-35-99. Failure to execute contractor’s bond.

If the successful bidder, within ten days after the acceptance of the bid or such further time as the board may grant, does not execute a contractor’s bond and a contract for the completion of the work described in the bid, the board may cause the work to be done, or it may contract with some other contractor to do or complete the work. In that case, the district may recover in a suit on the defaulting bidder’s bond the difference between the actual cost to the district of the improvements and the sum that it would have cost if the defaulting bidder had complied with the bidder’s bid.

Source:

S.L. 1995, ch. 601, § 1.

61-35-100. Insufficiency of bonds — New bonds required — Failure to furnish.

If the board, at any time, deems the bond of a contractor insufficient either in form or as to sureties, it may require the successful bidder or contractor to furnish, within such reasonable time as the board may fix, a new bond to be approved by the board. If the contractor fails, after notice, to furnish the new bond within the time required, the contractor’s contract may be canceled, and in that event the contractor’s bond will be liable as if the contractor had failed to perform the contract.

Source:

S.L. 1995, ch. 601, § 1.

61-35-101. Execution and filing of contract.

All contracts entered into for any work provided for in this chapter must be entered into in the name of the district and must be executed on the part of the district by the president and countersigned by the secretary. After the contract is signed by the contractor, it must be filed in the office of the district.

Source:

S.L. 1995, ch. 601, § 1.

61-35-102. Conditions and terms.

A contract let under this chapter requires the work to be done pursuant to the plans and specifications on file in the office of the district, subject to the approval of the engineer acting for the district, and must provide:

  1. That the board has the right to suspend the work at any time for improper construction and to relet the contract or to order a reconstruction of the work as to any part improperly done.
  2. The time within which the work must be completed.
  3. The period of time for which the work must be guaranteed as to workmanship and materials.
  4. The fund from which the contract price is to be paid by the district.
  5. That the consideration expressed in the contract is payable only in bonds drawn on the fund described in the contract.
  6. That the district assumes and incurs no general liability under the contract.
  7. That failure of the engineer to reject work and materials that are not up to specifications and acceptance of the job by the engineer does not release the contractor from liability for any failure on the contractor’s part to perform work or furnish materials in accordance with the plans and specifications.

The engineer acting for the district shall provide construction administration and observation of the work during its progress. In addition to any rights a district may have under its contract for construction of part or all of an improvement after a contract has been awarded and before work under the contract has been completed, a district, with the consent of the contractor and without advertising for bids, may order additional work done by that contractor of the same character as the work that was contracted for, whether within or without the improvement district for which the original contract was made, and upon the same terms and conditions specified in the original contract except as to time of performance, and at the same prices for the additional work; provided, that the total price payable to the contractor for the additional work may not exceed twenty percent of the amount estimated by the engineer for the district to be payable for that character of work under the original contract.

Source:

S.L. 1995, ch. 601, § 1; 1997, ch. 353, § 3.

61-35-103. Contractor to be paid during progress of work — Retainage — Failure to pay — Rate of interest — Investment of retainage.

If the contractor to whom a contract is let properly performs the work designated in the contract, the board, at least once in each calendar month during the continuance of the contract work, shall meet and receive and consider estimates furnished by the agent, engineer, or architect acting for the district or if not so furnished, then by the contractor, and shall allow such estimates in an amount of the estimated value of the labor and material furnished upon the contract, and of the material then upon the ground for use in the contract, subject to retentions as follows: ten percent of each estimate presented until such time as the project is fifty percent completed, with no further retainage on estimates during the continuance of the contract. Upon completion of ninety-five percent of the contract according to the estimates, the board may pay to the contractor ninety-five percent of the amount retained from previous estimates. Any amount retained after ninety-five percent completion of the contract must be paid to the contractor in such amounts and at such times as are approved by the district, upon estimates by its agent, engineer, or architect or the contractor, with final payment of all moneys due to the contractor to be made immediately following completion and acceptance of the project. Immediately after considering and allowing any such estimate, the board shall certify and forward the same to the district treasurer or other official having the power to draw bonds, who forthwith shall draw a warrant upon the proper fund and transmit the same promptly to the contractor. If the board fails or neglects to receive and allow such estimate or certify any estimate or final payment upon completion and acceptance or the proper officer required to issue such warrant fails or neglects to issue a warrant as provided in this section, for a period of more than thirty days from the date of such estimate or completion date, then the estimate or final payment, together with any retainage properly payable, draws interest from its date at the rate per annum of two percentage points below the Bank of North Dakota prime interest rate as set thirty days from the date of such estimate or completion date until the issuance of a proper warrant. Interest must be computed and added to the face of the estimate, final payment, or retainage by the officer required to issue the warrant, must be included in the warrant when drawn, and must be charged to the fund from which payment for the improvement is to be made. On the amounts of estimates retained, as provided in this section, the board, authorized committee, or public body in charge of the work may invest or deposit the retained amounts in any financial association or institution in this state earning interest or dividends for the benefit of the contractor. Any amounts so invested or deposited must remain in the name of the board, authorized committee, or public body in charge of the work until final payment of all money due to the contractor is to be made. Further, a contractor may not use or pledge such amount in any manner until released and received by the contractor upon completion of the contract.

Source:

S.L. 1995, ch. 601, § 1.

CHAPTER 61-36 Devils Lake Outlet Committee

61-36-01. Devils Lake outlets management advisory committee — Members — Terms — Vacancies.

  1. The Devils Lake outlets management advisory committee consists of:
    1. The governor or governor’s designee;
    2. A representative from Benson County appointed by the governor;
    3. A representative from Ramsey County appointed by the governor;
    4. A representative from Towner County appointed by the governor;
    5. A representative from Nelson County appointed by the governor;
    6. A representative from the Devils Lake joint water resource board appointed by the governor;
    7. A representative from the Spirit Lake Nation appointed by the governor;
    8. A representative from the city of Devils Lake appointed by the governor;
    9. A representative from Barnes County appointed by the governor;
    10. A representative from Valley City appointed by the governor;
    11. A representative from Lisbon or Fort Ransom appointed by the governor;
    12. A representative from Fargo appointed by the governor;
    13. A representative from Grand Forks appointed by the governor;
    14. The governor of Minnesota or a designee appointed by the governor of Minnesota;
    15. The premier of Manitoba or the premier’s designee; and
    16. A member of the house and a member of the senate, one representing the Devils Lake basin region and one representing the downstream region, appointed by the chairman of the legislative management.
  2. All appointed members serve for a term of four years or until their successors are appointed and qualified.
  3. Terms expire on the first day of July.
  4. The terms of appointed members must be staggered by lot so that at least three of the terms expire each year.
  5. Members of the committee may be reappointed for additional terms and except for the legislative members, serve at the pleasure of the governor.
  6. A vacancy must be filled in the same manner as original appointments for the remainder of the unexpired term.

Source:

S.L. 1997, ch. 524, § 1; 2005, ch. 595, § 1; 2013, ch. 489, § 1.

61-36-02. Chairman — Quorum — Meetings.

The governor or governor’s designee is the chairman of the committee. A majority of the members of the committee constitutes a quorum. The committee shall hold meetings at the call of the chairman before initial operation of the outlets, and at such other times as the chairman deems necessary.

Source:

S.L. 1997, ch. 524, § 2; 2013, ch. 489, § 2.

61-36-03. Compensation and expenses. [Repealed]

Repealed by S.L. 2013, ch. 489, § 4.

61-36-04. Duties of the committee.

The committee shall advise the governor and the state water commission regarding operations of all Devils Lake outlets. The committee may recommend criteria for operation of each outlet based on outflow volumes, water quality considerations, and the risk of an overflow of Devils Lake. Any recommendations developed by the committee must receive support from ten of the seventeen members of the committee before submission to the governor or state water commission. Any recommendation not receiving majority support but receiving support from at least five members may be submitted as a minority recommendation.

Source:

S.L. 1997, ch. 524, § 4; 2013, ch. 489, § 3.

CHAPTER 61-37 Irrigation District Finance Program

61-37-01. Definitions.

In this chapter, unless the context or subject matter requires otherwise:

  1. “Bond” means an evidence of indebtedness of the program issued by the commission.
  2. “Bondholder” or any similar term, when used with reference to a bond of the program, means any person who is the bearer of any outstanding bond of the program.
  3. “Commission” means the state water commission.
  4. “Fully marketable form” means a municipal security duly executed and accompanied by an approving legal opinion of a counsel whose opinions are generally accepted by the purchasers of municipal securities.
  5. “Municipal security” means an evidence of indebtedness issued by an irrigation district.
  6. “Program” means the North Dakota irrigation district finance program established by the commission under this chapter.
  7. “Required debt service reserve” means the amount required to be on deposit in the reserve fund.
  8. “Reserve fund” means the program reserve fund or funds.
  9. “Revenues” means any or all fees, charges, moneys, profits, payments of principal of or interest on municipal securities, investment income, revenues, appropriations, liquidation of security, and all other income derived or to be derived by the commission under the program.

Source:

S.L. 1999, ch. 536, § 9.

Cross-References.

Word defined by statute always has same meaning, see N.D.C.C. § 1-01-09.

61-37-02. Creation of program.

The North Dakota irrigation district finance program is established under the operation, management, and control of the commission. The program is constituted as an instrumentality of the state exercising public and governmental functions.

Source:

S.L. 1999, ch. 536, § 9.

61-37-03. Participation voluntary — Agreement to participate.

Participation in the program by an irrigation district is voluntary and no irrigation district may be required to sell its municipal security issues to the program. Notwithstanding any other law, an irrigation district that wishes to participate in the program may enter into an agreement with the program for the purchase by the program of a municipal security issue of the irrigation district, including the purchase by the program of an issue of refunding municipal securities, which may be required by agreement with the program to be issued at a rate of interest higher or lower than that of the municipal security issue to be refunded.

Source:

S.L. 1999, ch. 536, § 9.

61-37-04. Guarantee, lending, and borrowing powers.

The program may guarantee municipal securities issued by an irrigation district. The program may lend money to irrigation districts through the purchase and holding of municipal securities which are eligible for purchase by the program, under this chapter, according to the terms of a guarantee by the program for the payment of debt service on a municipal security of an irrigation district. However, the program may lend money to irrigation districts through the purchase and holding of municipal securities issued by the irrigation district, without regard to the initial issuance of a guarantee of the principal amount and interest payable on the municipal securities issued, if the commission approves a resolution that authorizes the program to purchase and hold those municipal securities. The authorizing resolution must state that the commission has determined that private bond markets will not be responsive to the needs of the issuing irrigation district concerning the municipal securities or that the municipal securities cannot be sold through private bond markets without the guarantee of the program. The program may hold municipal securities acquired under this chapter for any length of time necessary. The program, for the purposes authorized by this chapter, may issue its bonds payable solely from the revenues available to the program which are authorized or pledged for payment of program bonds and obligations, and assist irrigation districts as provided in this chapter. Bonds or guarantees of the program issued under this chapter are not a debt or liability of the state and do not constitute a loan of the credit of the state, create any debt or liability on behalf of the state, or constitute a pledge of the faith and credit of the state. The bonds are payable solely from revenues pledged or available for their payment as authorized in this chapter. Each bond must contain on its face a statement to the effect that the program is obligated to pay the principal or interest, and redemption premium, if any, and that neither the faith and credit nor the taxing power of the state is pledged to the payment of the principal or the interest on the bonds. Specific funds pledged to fulfill the program’s obligations are obligations of the program. All expenses incurred in carrying out this chapter are payable solely from revenues or funds provided or to be provided under this chapter and nothing in this chapter may be construed to authorize the program to incur any indebtedness or liability on behalf of or payable by the state. Guarantees or bonds issued under this chapter are in the public interest and are not subject to the limitation contained in subsection 2 of section 61-02-46.

Source:

S.L. 1999, ch. 536, § 9.

61-37-05. How bonds or guarantees may be secured.

A bond or guarantee issued by the program may be secured by works or lands and the income derived from those works or lands.

Source:

S.L. 1999, ch. 536, § 9.

61-37-06. Powers.

The program has the following powers:

  1. To sue and be sued.
  2. To make and enforce bylaws and rules for the conduct of its affairs and business and for use of its services.
  3. To acquire, hold, use, and dispose of its income, revenue, funds, and moneys in accordance with law.
  4. To acquire, rent, lease, hold, use, and dispose of other personal property for its purposes.
  5. To borrow money and to issue its negotiable bonds or notes and to provide for and secure their payment and to provide for the rights of the holders, and to purchase, hold, and dispose of any of its bonds and obligations.
  6. To fix, revise, charge, and collect fees and charges for the use of its services or facilities.
  7. To perform any acts and do all things authorized by this chapter, through its officers, agents, or employees, or by contracts with any person.
  8. To make and enforce all contracts necessary or desirable for the program or pertaining to any loan to a political subdivision or any purchase or sale of municipal securities or other investments or to the performance of its duties and execution of its powers under this chapter.
  9. To purchase or hold municipal securities of irrigation districts at the prices and in the manner deemed advisable by the program and to sell municipal securities acquired or held by it in the manner deemed advisable by the program.
  10. To invest any funds or moneys of the program not then required for loans to irrigation districts and for the purchase of municipal securities in the same manner as permitted for the investment of funds belonging to the state or the Bank of North Dakota.
  11. To fix and prescribe any form of application or procedure to be required of an irrigation district for the purpose of any guarantee, loan, or the purchase of its municipal securities, and to fix the terms and conditions of any guarantee, loan, or purchase and to enter into agreement with irrigation districts with respect to any such guarantee, loan, or purchase.
  12. To consider the need, desirability, or eligibility of a guarantee or loan, the ability of an irrigation district to secure borrowed money from other sources, and the costs of that borrowing without program involvement.
  13. To impose and collect charges from an irrigation district for its costs and services in review or consideration of any proposed guarantee or loan to an irrigation district or purchase of municipal securities of an irrigation district, and to impose and collect charges whether or not a guarantee or loan has been made or municipal securities have been guaranteed or purchased.
  14. To fix and establish any and all terms and provisions with respect to any guarantee or purchase of municipal securities by the program, including dates and maturities of bonds, provisions as to redemption or payment prior to maturity, and any and all other matters necessary or advisable in the judgment of the program.
  15. To procure insurance against any losses in connection with its property, operations, or assets in the amounts and from the insurers as necessary to pay the premiums on the insurance.
  16. To the extent permitted under its contracts with the holders of bonds of the program, to consent to any modification with respect to rates of interest, time, and payment of any installment of principal or interest, security, or any other term of bond, contract, or agreement of any kind to which the program is a party.
  17. To do all acts and things necessary, convenient, or desirable to carry out the powers expressly granted or necessarily implied in this chapter.

Source:

S.L. 1999, ch. 536, § 9.

61-37-07. Guarantee of the program.

A guarantee by the program of municipal securities of an irrigation district must be authorized by resolution of the commission and must be evidenced by a written agreement approved by the commission.

Source:

S.L. 1999, ch. 536, § 9.

61-37-08. Bonds of the program.

Bonds of the program must be authorized by resolution of the commission and may be issued in the form, with dates, interest rates, denominations, rights of conversion, registration, priority of payment, manner, location, and form of payment, terms of redemption, at public or private sale, and at the time and price determined by the commission to be in the best interest of the program.

Source:

S.L. 1999, ch. 536, § 9.

61-37-09. Pledges.

Any pledge of revenue made by the commission as security for a program guarantee or program bonds is valid and binding from the time when the pledge is made. The revenues or other moneys so pledged and thereafter received by the program are immediately subject to the lien of the pledge, without any physical delivery or further act, and the lien of any pledge is valid and binding against all parties having claims of any kind against the program, regardless of whether the parties have notice. Neither the resolution nor any other instrument by which a pledge is created must be filed or recorded, except in the records of the program.

Source:

S.L. 1999, ch. 536, § 9.

61-37-10. Reserve fund.

  1. The program shall establish and maintain a reserve fund in which there must be deposited all moneys appropriated by the state for the purpose of the fund, all proceeds of bonds required to be deposited by terms of any contract between the program and its bondholders or any resolution of the program with respect to the proceeds of bonds, any other moneys or funds of the program which are deposited by the program, any contractual right to the receipt of moneys by the program for the purpose of the fund, including a letter of credit or similar instrument, and any other moneys made available to the program only for the purposes of the fund from any other source. Moneys in the reserve fund must be held and applied solely to the payment of the interest on and the principal of bonds and sinking fund payments as they become due and payable and for the retirement of bonds, including payment of any redemption premium required to be paid when any bonds are redeemed or retired prior to maturity, and for the payment of principal and interest on municipal securities guaranteed by the program. Moneys in the reserve fund may not be withdrawn if the withdrawal would reduce the amount in the reserve fund to less than the required debt service reserve, except for payment of interest then due and payable on bonds and the principal of bonds then maturing and payable, sinking fund payments, the retirement of bonds in accordance with the terms of any contract between the program and its bondholders, the payment of principal and interest on municipal securities of an irrigation district for which a guarantee has been issued by the program, and for the payments on account of which interest or principal or sinking fund payments or retirement of bonds or execution of a guarantee, other moneys of the program are not then available in accordance with the terms of the contract. The reserve fund may not be used for the payment of a guarantee by the program unless the commission has determined that bonds of the program cannot be issued under acceptable terms for the payment of the guarantee, or the payment of the guarantee will not reduce the reserve fund to an amount less than the required debt service reserve. The required debt service reserve must be an aggregate amount equal to at least the largest amount of money required by the terms of all contracts between the program and its bondholders to be raised in the then current or any succeeding calendar year for the payment of interest on and maturing principal of outstanding bonds, and sinking fund payments required by the terms of any contracts to sinking funds established for the payment or redemption of the bonds.
  2. If the establishment of the reserve fund for an issue or the maintenance of an existing reserve fund at a required level under this section would necessitate the investment of all or any portion of a new reserve fund or all or any portion of an existing reserve fund at a restricted yield, because not restricting the yield may cause the bonds to be taxable under the Internal Revenue Code, then, at the discretion of the program, no reserve fund need be established prior to the issuance of bonds, the reserve fund need not be funded to the levels required by this section, or an existing reserve fund may be reduced.
  3. No bonds may be issued by the program unless there is in the reserve fund the required debt service reserve for all bonds then issued and outstanding and for the bonds to be issued. Nothing in this chapter prevents the program from satisfying this requirement by depositing upon issuance so much of the proceeds of the bonds to be issued, as is needed to achieve the required debt service reserve. The program may, at any time, issue its bonds or notes for the purpose of providing any amount necessary to increase the amount in the reserve fund to the required debt service reserve, or to meet higher or additional reserves as may be fixed by the program.
  4. In order to ensure maintenance of the required debt service reserve, the legislative assembly shall appropriate and deposit in the reserve fund the amount certified by the commission as necessary to restore the reserve fund to an amount equal to the required debt service reserve, or maintain a reserve fund established by the commission under this chapter and required according to the terms of a guarantee issued by the program. However, the commission may approve a resolution for the issuance of bonds, as provided by this chapter, which states in substance that this subsection is not applicable to the required debt service reserve for bonds issued under the resolution.
  5. If the maturity of a series of bonds of the program is three years or less from the date of issuance of the bonds, the program may determine that no reserve fund need be established for that respective series of bonds, or that it may be established in an amount less than the required debt service reserve. If such a determination is made, holders of the respective series of bonds may have no interest in or claim on existing reserve funds established for the security of the holders of previously issued program bonds and may have no interest in or claim on reserve funds established for the holders of subsequent issues of bonds of the program.

Source:

S.L. 1999, ch. 536, § 9.

61-37-11. Additional reserves and funds.

The program may establish additional reserves, funds, or accounts as it deems necessary to further the program or to comply with any agreement made by, or any resolution of, the program.

Source:

S.L. 1999, ch. 536, § 9.

61-37-12. Personal liability — Purchase of bonds — Bonds as legal investments — Security.

  1. Neither a member of the commission nor any person executing bonds issued under this chapter is liable personally on any bonds by reason of the issuance of those bonds.
  2. The program has the power to purchase bonds of the program out of any available funds or moneys of the program. The program may hold, cancel, or resell bonds or notes, subject to any agreements with holders of its bonds.
  3. Notwithstanding any other law, the state and all public officers, boards, and agencies, and political subdivisions and agencies of the state, all national banking associations, state banks, trust companies, savings banks and institutions, savings and loan associations, investment companies, and other persons carrying on a banking business, and all executors, administrators, guardians, trustees, and other fiduciaries may legally invest any sinking funds, moneys, or other funds belonging to them or within their control in any bonds issued by the program pursuant to this chapter.
  4. The bonds are authorized security for any and all public deposits.

Source:

S.L. 1999, ch. 536, § 9.

61-37-13. Tax exemptions — Exemption of property from execution sale.

  1. All property of the program and all bonds issued under this chapter are deemed to be serving essential public and governmental purposes and the property and the bonds issued, their transfer and their income, including any profits made on their sale, are exempt from all state, county, and municipal taxes.
  2. All property of the program is exempt from levy and sale by virtue of an execution and no execution or other judicial process may issue against the property, nor may any judgment against the program be a charge or lien upon its property; provided, that nothing contained in this chapter applies to or limits the rights of the holder of any bonds to pursue any remedy for the enforcement of any pledge or lien given by the program on its revenues. Any action or proceeding in any court to set aside a resolution authorizing the issuance of bonds by the program under this chapter or to obtain any relief upon the ground that a resolution is invalid must be commenced within ten days after the adoption of that resolution by the commission. After the expiration of that period of limitation, no claim for relief or defense founded upon the invalidity of the resolution or any of its provisions may be asserted, nor may the validity of the resolution or any of its provisions be open to question in any court on any ground whatsoever.

Source:

S.L. 1999, ch. 536, § 9.

61-37-14. Insurance or guaranty.

The program is authorized and empowered to obtain from any department or agency of the United States or from nongovernmental insurer any insurance or guaranty, or from a financial institution a letter of credit to the extent the insurance, guaranty, or letter of credit available now or in the future for the payment or repayment of, interest or principal in whole or in part, on any bonds issued by the program, or on any municipal securities purchased or held by the program, or on any guarantee issued by the program, pursuant to this chapter; and to enter into any agreement or contract with respect to any insurance or guaranty, or letter of credit, and pay any required fee, unless doing so would impair or interfere with the ability of the program to fulfill the terms of any agreement made with the holders of its bonds or guarantees.

Source:

S.L. 1999, ch. 536, § 9.

61-37-15. Remedies on default of municipal securities.

In the event of a default by an irrigation district in the payment of interest on or principal of any municipal securities owned or held by the program, the program may proceed to enforce payment, pursuant to law, of the interest or principal or other amount then due and payable.

Source:

S.L. 1999, ch. 536, § 9.

61-37-16. Form of municipal securities and investments.

All municipal securities held by the program as permitted or provided for under this chapter must at all times be purchased and held in fully marketable form, subject to provision for any registration in the name of the program. All municipal securities at any time purchased, held, or owned by the program must, upon delivery to the program, be in fully marketable form and accompanied by the documentation required from time to time by the program.

Source:

S.L. 1999, ch. 536, § 9.

61-37-17. Presumption of validity.

After issuance, all bonds of the program are conclusively presumed to be fully authorized and issued under the laws of this state, and any person or governmental unit is estopped from questioning their authorization, sale, issuance, execution, or delivery by the program.

Source:

S.L. 1999, ch. 536, § 9.

61-37-18. Protection of service during term of guarantee or loan.

  1. The service provided or made available by an irrigation district through the construction or acquisition of an improvement, or the improvement revenues, financed in whole or in part with a guarantee or loan to the irrigation district from the program or any other state agency or enterprise, may not be curtailed or limited by inclusion of all or any part of the area served by the irrigation district within the boundaries of any other irrigation district, or by the granting of any private franchise for similar service within the area served by the irrigation district during the term of the guarantee or loan. The irrigation district providing the service may not be required to obtain or secure any franchise, license, or permit, as a condition of continuing to serve the area if it is included within the boundaries of another irrigation district during the term of the guarantee or loan.
  2. Under the circumstances described in subsection 1, nothing prevents the two irrigation districts and the program or other state agency or enterprise from negotiating an agreement for the right or obligation to provide the service in question, provided that any agreement is invalid and unenforceable unless the program or other state agency or enterprise is a party to the agreement and unless the agreement contains adequate safeguards to ensure the security and timely payment of any outstanding bonds of the program issued to fund the loan.

Source:

S.L. 1999, ch. 536, § 9.

CHAPTER 61-38 Dredged and Fill Material Disposal

61-38-01. Definitions. [Contingent effective date – See note]

The department of water resources shall adopt definitions consistent with federal law for, among other words: “dredged material”, “fill material”, “general permit”, “person”, “waters of the state”, and “wetlands”.

Source:

S.L. 1993, ch. 594, § 1; 2001, ch. 561, § 1; 2021, ch. 488, § 212, eff August 1, 2021.

Note.

Section 3 of chapter 561, S.L. 2001, provides:

SECTION 3. EFFECTIVE DATE. This Act [this Chapter] becomes effective on the date the state engineer certifies to the governor that a program has been designed to effectively assume responsibility for the section 404 program of the Clean Water Act and the state water commission is ready to assume those responsibilities. The governor shall notify the secretary of state and the legislative council of the effective date of this Act.”

This chapter was created by chapter 594, S.L. 1993, and its effective date was extended by section 1 of chapter 589, S.L. 1995 and repealed by section 1 of chapter 561, S.L. 2001.

61-38-02. Powers. [Contingent effective date – See note]

The department of water resources 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. The loans and grants may not be expended for purposes other than those for which the loans and grants were provided.
  4. To enter upon or through a permittee’s premises where dredged or fill material is discharged, after written notice to the permittee.
  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].

Source:

S.L. 1993, ch. 594, § 2; 2001, ch. 561, § 1; 2021, ch. 488, § 213, eff August 1, 2021.

61-38-03. Permits — Certification from state department of health required. [Through August 31, 2022 — Contingent effective date — See note under section 61-38-01]

The department of water resources 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.

Source:

S.L. 1993, ch. 594, § 3; 2001, ch. 561, § 1; 2021, HB1353, § 214, eff August 1, 2021.

Note.

Section 61-38-03 was amended 2 times by the 2021 Legislative Assembly. Pursuant to Section 1-02-09.1, the section is printed above to harmonize and give effect to the changes made in Section 214 of Chapter 488, Session Laws 2021, House Bill 1353; and Section 507 of Chapter 352, Session Laws 2021, House Bill 1247.

61-38-03. Permits — Certification from department of health and human services required. [After August 31, 2022 — Contingent effective date — See note under section 61-38-01]

The department of water resources may not issue a permit under this chapter without a certification from the department of health and human services that the permitted activity will not adversely affect water quality.

Source:

S.L. 1993, ch. 594, § 3; 2001, ch. 561, § 1; 2021, ch. 352, § 507, eff September 1, 2022.

61-38-04. Specification of disposal sites. [Contingent effective date – See note]

The department of water resources 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 department. The rules must be consistent with federal law. The department 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 when the department 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.

Source:

S.L. 1993, ch. 594, § 4; 2001, ch. 561, § 1; 2021, ch. 488, § 215, eff August 1, 2021.

61-38-05. Discharge of dredged or fill material — Permit required — Exceptions. [Contingent effective date – See note]

  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 department of water resources. No person may discharge dredged or fill material in violation of a permit. A permit is not required for:
    1. The discharge of dredged or fill material when an activity is authorized by a general permit issued pursuant to section 61-38-06;
    2. 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;
    3. 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;
    4. Construction or maintenance of farm or stock ponds or irrigation ditches or the maintenance of drainage ditches;
    5. Construction of temporary sedimentation basins on a construction site that does not include placement of fill material into waters of the state;
    6. Construction or maintenance of farm roads or forest roads, or temporary roads for moving mining equipment, where the roads are constructed and maintained, in accordance with best management practices, to assure flow and circulation patterns and chemical and biological characteristics of the waters of the state are not impaired, the reach of the waters of the state is not reduced, and any adverse effect on the aquatic environment will be otherwise minimized; or
    7. The placement of fill material associated with activities the state regulates by requiring best management practices under chapter 61-28.
  2. 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 with the purpose of converting 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 flow or circulation may be impaired by the alteration.

Source:

S.L. 1993, ch. 594, § 5; 2001, ch. 561, § 1; 2021, ch. 488, § 216, eff August 1, 2021.

61-38-06. General permits. [Contingent effective date – See note]

  1. In carrying out the functions relating to the discharge of dredged or fill material, the department of water resources, after notice and opportunity for public hearing, may issue general permits on a state or regional basis for any category of activities involving discharges of dredged or fill material if the department determines 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 applicable to any activity authorized by the general permit. General permits must be issued pursuant to rules adopted by the department which are consistent with federal law.
  2. A general permit may be revoked or modified by the department of water resources, after opportunity for public hearing, if the department determines the activities authorized by the general permit have an adverse impact on the environment or are authorized more appropriately by individual permits.
  3. The department of water resources 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.

Source:

S.L. 1993, ch. 594, § 6; 2001, ch. 561, § 1; 2021, ch. 488, § 217, eff August 1, 2021.

61-38-07. Emergency permits. [Contingent effective date – See note]

The department of water resources 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.

Source:

S.L. 1993, ch. 594, § 7; 2001, ch. 561, § 1; 2021, ch. 488, § 218, eff August 1, 2021.

61-38-08. Permit application — Notice — Hearing. [Contingent effective date – See note]

Any person desiring to discharge dredged or fill material for which a permit is required shall file an application with the department of water resources. The application must be on a form prescribed by the department and must include information required by the department. The department 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 department shall publish the notice.

Source:

S.L. 1993, ch. 594, § 8; 2001, ch. 561, § 1; 2021, ch. 488, § 219, eff August 1, 2021.

61-38-09. Proceedings. [Contingent effective date – See note]

  1. Any proceeding to determine compliance with or violation of the provisions of this chapter or any rule, order, or condition in a permit issued pursuant to this chapter by the department of water resources 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 department of water resources 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.

Source:

S.L. 1993, ch. 594, § 9; 2001, ch. 561, § 1; 2021, ch. 488, § 220, eff August 1, 2021.

61-38-10. Penalties. [Contingent effective date – See note]

The department of water resources may assess or sue to recover civil penalties and seek criminal remedies as provided in this section.

  1. The department 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 department 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 the violation.
  3. The department of water resources 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.

Source:

S.L. 1993, ch. 594, § 10; 2001, ch. 561, § 1; 2021, ch. 488, § 221, eff August 1, 2021.

61-38-11. Restoration. [Contingent effective date – See note]

In lieu of or in addition to the penalties authorized under section 61-38-10, the department of water resources may require restoration of areas in which dredged or fill material has been discharged illegally. If the department determines any person has discharged dredged or fill material without a permit or in violation of any permit condition, the department shall notify the person by registered or certified mail. The notice must specify the nature and extent of noncompliance and state the area in which the dredged or fill material is located must be restored to the satisfaction of the department within thirty days of receipt of the notice. If the area is not restored as required, the department shall cause the restoration of the area and assess the cost of the restoration against the person responsible for the illegal discharge.

Source:

S.L. 1993, ch. 594, § 11; 2001, ch. 561, § 1; 2021, ch. 488, § 222, eff August 1, 2021.

CHAPTER 61-39 Lake Agassiz Water Authority

61-39-01. Findings and declaration of policy.

The legislative assembly declares many areas and localities in eastern and central North Dakota do not enjoy adequate quantities of high-quality drinking water; other areas and localities in eastern and central North Dakota do not have sufficient quantities of water to ensure a dependable, long-term supply; greater economic security and the protection of health and property benefits the land and water resources of this state; and the promotion of the prosperity and general welfare of all of the people of this state depend on the effective development and utilization of the land and water resources of this state and requires the exercise of the sovereign powers of this state and concern a public purpose. To accomplish this public purpose, a water authority is needed to store and distribute water to eastern and central North Dakota to provide for the supply and distribution of water to the people of eastern and central North Dakota for purposes, including domestic, rural water, municipal, livestock, industrial, and other uses, with primary emphasis on domestic, rural water, and municipal uses; and provide for the future economic welfare and prosperity of the people of this state, and particularly the people of eastern and central North Dakota, by the bulk purchase of water from the Garrison Diversion Conservancy District delivered by the Red River valley water supply project for beneficial and public uses. The Garrison Diversion Conservancy District may acquire, construct, and improve the Red River valley water supply project and may enter water supply contracts with member cities and water districts for the sale of water for consumption within or outside the district or the state, including with Canada. Alternatively, the Lake Agassiz water authority may enter one or more contracts to provide for the authority to acquire bulk water from the Garrison Diversion Conservancy District and may enter water supply contracts with member cities and water districts for the resale of this water for consumption within or outside the state.

The legislative assembly acknowledges North Dakota and Minnesota communities jointly use the Red River as a water resource. It is in the best interest of eastern North Dakota also to study and possibly provide for the water needs of those Minnesota communities through a Red River valley water supply project, particularly if that project maintains the use of the Red River for North Dakota communities.

In furtherance of this public purpose, the state water commission may provide for the issuance of bonds in accordance with chapter 61-02 to finance the costs of any project to deliver water to eastern and central North Dakota or utilize other financing as addressed in this chapter. This chapter does not abrogate or limit the rights, powers, duties, and functions of the state water commission or department of water resources, but is supplementary to those rights, powers, duties, and functions.

Source:

S.L. 2003, ch. 559, § 2; 2005, ch. 596, § 2; 2009, ch. 599, § 5; 2017, ch. 427, § 3, eff July 1, 2017; 2021, ch. 488, § 223, eff August 1, 2021.

61-39-02. Lake Agassiz water authority created.

The Lake Agassiz water authority consists of cities, water districts, and other water distribution systems located in that part of the state which is included within the boundaries of Cavalier, Pembina, Walsh, Nelson, Grand Forks, Griggs, Steele, Traill, Barnes, Cass, Ransom, Sargent, Richland, and Stutsman Counties and that pay dues to the authority. Minnesota cities may join the authority, provided a portion of the city is located within five miles [8.05 kilometers] of this state, or if the city uses the Red River for its primary water supply. Any other county, city, water district, or Canadian governmental entity or water supply system may join the authority upon application of its board and approval of the application by a majority of the authority’s board. The authority shall require any new member to pay for a pro rata share of the project costs previously incurred by the authority members. The authority also may require an entity contracting for a water supply to pay an additional fee if the entity joins the project late. The authority is a governmental agency, body politic and corporate with the authority to exercise the power specified in this chapter, or which may be reasonably implied. Cities, water districts, and other water distribution systems may pay dues to the authority as determined by the authority.

Source:

S.L. 2003, ch. 559, § 3; 2005, ch. 596, § 3; 2017, ch. 427, § 4, eff July 1, 2017.

61-39-03. Lake Agassiz water authority — Board of directors.

  1. The authority must be governed by a board of directors selected as follows:
    1. One member from a city with a population greater than forty thousand located east of state highway 1 and north of state highway 200.
    2. One member from a city with a population greater than forty thousand located east of state highway 1 and south of state highway 200.
    3. One member from a city with a population of five thousand but not more than forty thousand located east of state highway 1.
    4. One member from a city with a population of less than five thousand located east of state highway 1.
    5. Two members from water districts located east of state highway 1 and north of state highway 200.
    6. Two members from water districts located east of state highway 1 and south of state highway 200.
    7. One member from water districts located east of state highway 1.
    8. One member from a Minnesota city with a population of more than thirty thousand and which is located within five miles [8.05 kilometers] of this state.
    9. One member from water districts located west of state highway 1.
    10. One member from a city west of state highway 1.
  2. North Dakota city members must be selected for two-year terms by election by cities during the annual meeting of the North Dakota league of cities in every odd-numbered year beginning in 2003. Cities that have paid dues in the calendar year the vote is taken, or signed a development agreement or other participation agreement with the authority before the date of the election, are eligible to vote. Water district members must be selected for two-year terms by election by water districts during the annual meeting of the North Dakota rural water systems association in every even-numbered year beginning in 2004. Water districts that have paid dues in the calendar year the vote is taken, or have signed a development agreement or other participation agreement with the authority before the date of the election, are eligible to vote. For elections of board members after July 1, 2017, a candidate for board member must have a development agreement, water supply contract, or project participation agreement with the authority or the Garrison Diversion Conservancy District. The initial Minnesota city is Moorhead, as it is an associate member of the authority. Moorhead will serve in this capacity until the league of Minnesota cities annual conference in 2006. During even-numbered years thereafter, Minnesota cities within five miles [8.05 kilometers] of the Red River or that use the Red River as a primary water supply may elect their representative. A member may designate an alternate to attend meetings and to act on the member’s behalf. The board of directors may designate associate members who are nonvoting members of the board.

Source:

S.L. 2003, ch. 559, § 4; 2005, ch. 596, § 4; 2009, ch. 599, § 6; 2017, ch. 427, § 5, eff July 1, 2017.

61-39-04. Board of directors — Officers — Meetings.

The board of directors may adopt such rules and bylaws for the conduct of the business affairs of the authority as it determines necessary, including the time and place of regular meetings of the board and a dues structure for membership in the authority. The bylaws may include weighted voting for board members based on nomination capacity; the existence of a development agreement, water supply agreement, or project participation agreement; or other factors the board deems relevant. The board shall elect from its members a chairman and a vice chairman. The board shall also elect a secretary and a treasurer, which offices may be held by the same individual, and either or both offices may be held by an individual who is not a member of the board. Special meetings of the board may be called by the secretary on order of the chairman or upon written request of a majority of the qualified members of the board. Notice of a special meeting must be mailed to each member of the board at least three days before the meeting, provided that a special meeting may be held at any time when all members of the board are present or consent in writing. The Garrison Diversion Conservancy District shall provide administrative, technical, and legal support for the authority.

Source:

S.L. 2003, ch. 559, § 5; 2017, ch. 427, § 6, eff July 1, 2017.

61-39-04.1. State project authorized.

The authority and the Garrison Diversion Conservancy District shall continue studying, planning, developing, and constructing a nonfederal project to meet the water supply needs of eastern and central North Dakota separate and apart from the federal Red River valley water supply project. The state project may include similar features as the federal project and may rely on and utilize studies, designs, and information developed as part of other water supply projects.

Source:

S.L. 2017, ch. 427, § 7, eff July 1, 2017.

61-39-05. Authority of the Lake Agassiz water authority.

The board of directors of the Lake Agassiz water authority may:

  1. Sue and be sued in the name of the authority.
  2. Exercise the power of eminent domain in the manner provided by title 32 for the purpose of acquiring and securing any rights, titles, interests, estates, or easements necessary or proper to carry out the duties imposed by this chapter, and particularly to acquire the necessary rights in land for the construction of pipelines, reservoirs, connections, valves, pumping installations, or other facilities for the storage, transportation, or utilization of water and all other appurtenant facilities used in connection with the authority, or any part thereof.
  3. Accept funds, property, and services or other assistance, financial or otherwise, from federal, state, and other public or private sources for the purpose of aiding and promoting the construction, maintenance, and operation of the authority.
  4. Cooperate and contract with the agencies or political subdivisions of the state of North Dakota or other states, in research and investigation or other activities promoting the establishment, construction, development, or operation of the authority.
  5. Appoint and fix the compensation and reimbursement of expenses of such employees as the board deems necessary to conduct the business and affairs of the authority and to procure the services of engineers and other technical experts, and to retain attorneys to assist, advise, and act for the authority in its proceedings.
  6. Operate and manage the authority to distribute water to its members and others within or outside the territorial boundaries of this state.
  7. Sell or exchange any and all real property purchased or acquired by the authority. All money received from any such sale or exchange must be deposited to the credit of the authority and may be used to pay expenses of the authority.
  8. Enter contracts to provide for a supply of bulk water from the Garrison Diversion Conservancy District which may provide for payments to fund some or all of the Garrison Diversion Conservancy District’s costs of acquiring, designing, constructing, or reconstructing one or more features of a Red River valley water supply project that the Garrison Diversion Conservancy District may acquire, design, construct, improve, and own, as well as the Garrison Diversion Conservancy District’s costs of operating and maintaining one or more Red River valley water supply projects, whether the acquisition, construction, or reconstruction of any Red River valley water supply project actually is completed and whether water actually is delivered pursuant to the contracts. Contracts executed under this subsection may be executed without limitation on the term of years and, if executed in relation to the initial construction of the system, need not be submitted to the voters for approval.
  9. Enter a contract or contracts to provide for a bulk sale, lease, or other supply of water for beneficial use to persons within or outside the authority, which contract or contracts may provide for payments to fund some or all of the Garrison Diversion Conservancy District’s costs of acquiring, designing, constructing, or reconstructing one or more features of a Red River valley water supply project, as well as the Garrison Diversion Conservancy District’s costs of operating and maintaining one or more features of a Red River valley water supply project, whether the acquisition, construction, or reconstruction of any Red River valley water supply project actually is completed and whether water actually is delivered pursuant to the contract or contracts, which contract or contracts cities and water districts that are members of the Lake Agassiz water authority are authorized to execute without limitation on the term of years.
  10. Borrow money from any legal source, including persons listed under section 61-39-11, the public finance agency through the state revolving fund or capital financing, the drinking water state revolving fund, the resources trust fund, and other state funding programs as provided in this chapter.
  11. Issue and sell revenue bonds for its own benefit or for the benefit of the Garrison Diversion Conservancy District, in an amount or amounts determined by the board, including an amount or amounts for costs of issuance and financing, and any necessary reserve funds, for the purpose of financing the cost of a project, purchasing bulk water, or otherwise making capital payments required under a water purchase contract.
  12. Lend some or all proceeds of its revenue bonds to the Garrison Diversion Conservancy District, to the state of North Dakota, or to a political subdivision or public body within the state, to facilitate the Garrison Diversion Conservancy District’s acquisition, design, construction, reconstruction, or improvement of one or more features of a Red River valley water supply project, or any feasibility study or preliminary economic, engineering, or legal work relating to any Red River valley water supply project.
  13. Refund and refinance its bonds from time to time as often as it is advantageous and in the interest of the authority.
  14. Pledge any and all income, profits, and revenues received by the authority in connection with the operation, lease, sale, or other disposition of all or any part of a project to secure the payment of bonds issued and sold to finance the project or otherwise.
  15. Prescribe, revise, and collect rates, fees, tolls, or charges for the services, facilities, or commodities furnished by the authority, and in anticipation of the collection of the revenues of the authority, issue revenue bonds to finance all or part of the costs of the acquisition, construction, reconstruction, improvement, betterment, or extension of a project.
  16. Pledge revenues of the authority to the punctual payment of principal and interest on bonds or water purchase contract obligations. A pledge under this subsection applies to the revenues of improvements, betterments, or extensions of the authority which may be constructed or acquired after the issuance of bonds, the revenues of existing systems, plants, works, instrumentalities, and properties of any part of the authority improved, bettered, or extended, and the revenues received from payments made under water sale contracts between the authority and persons that contract to purchase water from the authority.
  17. Make all contracts, execute all instruments, and do all things necessary or convenient in the exercise of its powers or in the performance of its covenants or duties or in order to secure the payment of its bonds, but an encumbrance, mortgage, or other pledge of property of the authority may not be created by any such contract or instrument.
  18. Accept from any authorized private entity or state or federal agency loans or grants for the planning, construction, acquisition, lease, or other provision of a project, and to enter agreements with the entity or agency respecting the loans or grants.
  19. Contract debts and borrow money, pledge property of the authority for repayment of indebtedness other than bonded indebtedness, and provide for payment of debts and expenses of the authority.
  20. Operate and manage the authority to distribute water to western Minnesota cities that are members of the authority and to any Canadian governmental entity or water system.
  21. Require various capital construction contribution rates, and charge different water rates for bulk water purchases based on a tiered system that recognizes higher contributions and water rates for entities that need the project in a drought. Other tiers with less immediate water needs or industrial needs may be assessed costs and charges water rates in relation to the cost of incrementally increasing the size of the project to accommodate those needs or on other bases the authority determines. The authority may charge higher construction costs or water rates to out-of-state entities based on the level of state funding supporting the project. Costs and charges also may vary according to the infrastructure assigned to each entity.

Property of the authority may not be liable to be forfeited or taken in payment of any bonds issued under this chapter, and debt on the general credit of the authority may not be incurred in any manner for payment of bonds under this chapter.

Source:

S.L. 2003, ch. 559, § 6; 2005, ch. 596, § 5; 2017, ch. 427, § 8, eff July 1, 2017; 2019, ch. 512, § 5, eff August 1, 2019.

61-39-06. Resolution authorizing the issuance of revenue bonds.

The issuance of revenue bonds or refunding bonds must be authorized by a resolution of the board adopted after appropriate notice by the affirmative vote of a majority of the board. Unless otherwise provided in the resolution, the resolution under this section takes effect immediately and need not be laid over, published, or posted.

Each resolution providing for the issuance of bonds provided for in this chapter must set forth the purpose or purposes for which the bonds are to be issued, the provisions for payment of the bonds, and the revenues or other funds pledged to secure the payment of the bonds.

Source:

S.L. 2005, ch. 596, § 6.

61-39-07. Provisions governing bonds.

The resolution authorizing the issuance of revenue bonds or refunding bonds under this chapter or resolutions adopted after the adoption of the original resolution must prescribe:

  1. The rate or rates of interest, or if an interest rate is variable, the method for calculating the interest rate.
  2. Whether the bonds will be in one or more series.
  3. The date or dates the bonds will bear.
  4. The time or times the bonds will mature.
  5. The medium in which the bonds will be payable.
  6. The place or places where the bonds will be payable.
  7. The terms of redemption, if any, to which the bonds will be subject.
  8. The manner in which the bonds will be executed.
  9. The terms, covenants, and conditions that the bonds will contain.
  10. The form in which the bonds will be issued, either coupon or registered.

Source:

S.L. 2005, ch. 596, § 7.

61-39-08. Sale of bonds — When private sale authorized — Public sale and notice.

Revenue bonds or refunding bonds may be sold at public or private sale on such terms as the board deems appropriate.

Source:

S.L. 2005, ch. 596, § 8.

61-39-09. Notes issued pending preparation of bonds — Negotiability.

Pending the issuance of bonds, bond anticipation notes may be issued and sold in the form and with the provisions determined by the board.

Source:

S.L. 2005, ch. 596, § 9.

61-39-10. Validity of notes and bonds.

Bond anticipation notes, revenue bonds, or refunding bonds bearing the manual or facsimile signatures of the appropriate officers who are in office on the date of signing are valid and binding obligations notwithstanding that before the delivery and payment any or all of the persons whose signatures appear on the notes or bonds have ceased to be officers of the issuing authority. The resolution authorizing the notes or bonds may provide that the notes or bonds must contain a recital that they are issued under this chapter and the recital is conclusive evidence of their validity and of the regularity of their issuance.

Source:

S.L. 2005, ch. 596, § 10.

61-39-11. Notes and bonds exempt from taxation.

Notwithstanding any restriction contained in any other law, the state and all public officers, boards, and agencies, and political subdivisions and agencies thereof, including the public finance authority; all national banking associations; state banks; trust companies; savings banks and institutions; savings and loan associations; investment companies; and other persons carrying on a banking business; and executors, administrators, guardians, trustees, and other fiduciaries, may legally invest any sinking funds, moneys, or other funds belonging to them or within their control in any bonds issued by the authority pursuant to this chapter, and the bonds are authorized security for public deposits. Notes and bonds, including refunding bonds, issued under this chapter and their income are exempt from all taxation by the state or by any political subdivision except inheritance, estate, and transfer taxes.

Source:

S.L. 2005, ch. 596, § 11; 2017, ch. 427, § 9, eff July 1, 2017.

61-39-12. Covenants and provisions that may be inserted in resolution authorizing bonds.

Any resolution authorizing the issuance of bonds under this chapter may contain covenants and provisions concerning:

  1. The rates, fees, tolls, or charges to be charged for the services, facilities, and commodities of a project.
  2. The use and disposition of all or a portion of the authority’s income, profits, and revenues.
  3. The creation, maintenance, regulation, use, and disposition of reserves or sinking funds.
  4. The purpose to which the proceeds of the sale of bonds may be applied and the use and disposition of the proceeds.
  5. The events of default and the rights and liabilities arising upon default and the terms and conditions upon which the holders of bonds issued under this chapter may bring civil action on the bonds.
  6. The creation, priority, and enforcement of liens against the authority’s income, profits, or revenues.
  7. The issuance of other or additional bonds or instruments payable from or constituting a charge against the authority’s income, profits, or revenues.
  8. The creation and use of synthetic interest rate contracts, interest rate caps, floors, and collars, and other techniques to lower the authority’s borrowing rate or reduce its exposure to interest rate risk, or both.
  9. The keeping, inspection, and audit of books of account.
  10. The terms and conditions upon which any or all of the bonds become or may be declared due before maturity and the terms and conditions upon which the declaration and its consequences may be waived.
  11. The rights, liabilities, powers, and duties arising upon the breach by the authority of any covenants, conditions, or obligations.
  12. The vesting in a trustee of the right to enforce any covenants made to secure, to pay, or in relation to the bonds, the powers and duties of such trustee, and the limitations of liabilities thereof.
  13. The terms and conditions upon which the holders of the bonds, or the holders of any proportion or percentage of them, may enforce any covenants made or any duties imposed under this chapter.
  14. A procedure by which the terms of any resolution authorizing bonds or of any other contract with bondholders, including an indenture of trust or similar instrument, may be amended or abrogated, and the amount of bonds that holders of which must consent to the resolution or contract, and the manner in which such consent may be given.
  15. The subordination of the security of any bonds issued under this chapter and the payment of principal and interest on those bonds, to the extent deemed feasible and desirable by the governing body, to other bonds or obligations of the authority issued to finance or refinance a project or that may be outstanding when the bonds thus subordinated are issued and delivered.
  16. Provisions with respect to the authority entering an agreement with a private bond insurer, bank, or other liquidity or credit enhancer for bond insurance, a guarantee, a letter of credit, or any other credit or liquidity enhancement that the authority may find to be advantageous or necessary to insure, guaranty, or enhance the payment of the principal of or interest on or liquidity for some or all of the bonds. The cost of any such enhancement or liquidity may be paid from bond proceeds or from other funds of the authority available for this purpose.

This section does not authorize the authority to do anything in any manner or for any purpose which would result in the creation or incurring of a debt or indebtedness of the state or the issuance of any instrument which would constitute a debt or indebtedness of the state within the meaning of any provision, limitation, or restriction of the Constitution of North Dakota relating to the creation or incurring of a debt or indebtedness of the state or the issuance of an instrument constituting a debt or indebtedness of the state.

Source:

S.L. 2005, ch. 596, § 12.

61-39-13. Liability of authority for notes and bonds — Taxing power prohibited.

Bond anticipation notes, revenue bonds, and refunding bonds issued under this chapter may not be payable from or charged upon any funds other than the revenue pledged to their payment and the authority’s notes and bonds may not be subject to any pecuniary liability. The holder of any such notes or bonds may not enforce payment of the notes or bonds against any property of the authority. Notes and bonds issued under this chapter do not constitute a charge, lien, or encumbrance upon any property of the authority, other than the revenues pledged to their payments. Each note and each bond issued under this chapter must recite in substance that the note or bond and interest on the note or bond is payable solely from the revenue pledged to the payment and that the note or bond does not constitute a debt of the state within the meaning of any constitutional or statutory limitation.

Source:

S.L. 2005, ch. 596, § 13.

61-39-14. Duties of authority and officers relative to the issuance of bonds.

To adequately secure the payment of bonds and interest on the bonds, the authority and its officers, agents, and employees shall:

  1. Pay or cause to be paid punctually the principal and interest of every bond on the dates, at the places, in the manner, and out of the funds provided in the refunding bond and in accordance with the resolution authorizing its issuance.
  2. Make certain any project financed by the authority is operated in an efficient and economical manner, enforce all water purchase and water sales contracts, and establish, levy, maintain, and collect related necessary or proper fees, tolls, rentals, rates, and other charges. Such fees, tolls, rentals, rates, and other charges must be sufficient, after making due and reasonable allowances for contingencies and for a margin of error in the estimates, at least:
    1. To pay all current expenses of operation and maintenance of any project;
    2. To make all payments required under any water purchase contract the authority may execute;
    3. To pay the interest and principal on the authority’s notes and bonds as they become due;
    4. To comply with the terms of the resolution authorizing the issuance of the bonds or any other contract or agreement with the holders of the refunding bonds; and
    5. To meet any other obligations of the authority that are charges, liens, or encumbrances upon the revenues of the authority.
  3. Operate, maintain, preserve, and keep every part of any tangible project financed and owned or operated by the authority in good repair, working order, and condition.
  4. Enforce the provisions of all water purchase and sale contracts that produce revenues pledged to payment of bonds.
  5. Preserve and protect the security of the bonds and the rights of the bondholders and warrant and defend such rights against all claims and demands.
  6. Pay and discharge all lawful claims for labor, materials, and supplies which, if unpaid, might become by law a lien or charge upon the revenues, or any part of the revenues, superior to the lien of the bonds or which might impair the security of the bonds.
  7. Hold in trust the revenues pledged to the payment of the bonds for the benefit of the holders of the bonds and apply the revenues only as provided by the resolution authorizing the issuance of the bonds or, if the resolution is modified, as provided in the modified resolution.
  8. Keep proper separate books of record and accounts of the project in which complete and correct entries must be made of all transactions relating to any part of the project. All books and papers of the authority are subject to inspection by the holders of ten percent or more of the outstanding bonds or of their representatives authorized in writing.

The duties contained in this section may not require any expenditure by the authority of any funds other than revenue received from a project or water sale contract. The performance of the duties enumerated in this section is of the essence of the contract of the authority with the bondholders.

Source:

S.L. 2005, ch. 596, § 14; 2007, ch. 563, § 1.

61-39-15. Remedies of bondholders in general.

Subject to any contractual limitations binding upon the holders of any issue of bonds, or a trustee for the holders, including the restriction of the exercise of any remedy to a specified proportion or percentage of the holders, any holder of bonds or trustee, for the equal benefit and protection of all bondholders similarly situated, may:

  1. By mandamus or other civil action, enforce the holder’s rights against the authority and its board and any of its officers, agents, or employees and may require the authority or the board or any officers, agents, or employees of the authority or board to perform their duties and obligations under this chapter and their covenants and agreements with bondholders.
  2. By civil action, require the authority and the board to account as if they were the trustees of an express trust.
  3. By civil action, enjoin any acts or things that may be unlawful or in violation of the rights of the bondholders.
  4. Bring suit upon the bond.

A right or remedy conferred by this chapter upon any bondholder, or upon any trustee for a bondholder, is not intended to be exclusive of any other right or remedy, but each such right or remedy is cumulative and in addition to every other right or remedy and may be exercised without exhausting and without regard to any other remedy conferred by this chapter or by any other law of this state.

Source:

S.L. 2005, ch. 596, § 15.

61-39-16. Project — Definition.

As used in this chapter, unless the context otherwise requires, the term “project” means either a system, plant, works, instrumentality, or property used to provide water supply in connection with the state or federal Red River valley water supply project, or a contract for the purchase of water, including a contract for the bulk purchase of water from the Garrison Diversion Conservancy District delivered by means of a state or federal Red River valley water supply project.

Source:

S.L. 2005, ch. 596, § 16; 2017, ch. 427, § 10, eff July 1, 2017.

CHAPTER 61-40 Western Area Water Supply Authority

61-40-01. Legislative declarations — Authority of western area water supply authority.

The legislative assembly declares that many areas and localities in western North Dakota do not enjoy adequate quantities of high-quality drinking water; that other areas and localities in western North Dakota do not have sufficient quantities of water to ensure a dependable, long-term domestic or industrial water supply; that greater economic security and the protection of health and property benefits the land, natural resources, and water resources of this state; and that the promotion of the prosperity and general welfare of all of the people of this state depend on the effective development and utilization of the land and water resources of this state and necessitates and requires the exercise of the sovereign powers of this state and concern a public purpose. To accomplish this public purpose, it is declared necessary that a water authority to treat, store, and distribute water to western North Dakota be established to provide for the supply and distribution of water to the people of western North Dakota for purposes, including domestic, rural water, municipal, livestock, industrial, oil and gas development, and other uses, and provide for the future economic welfare and prosperity of the people of this state, and particularly the people of western North Dakota, by the creation and development of a western area water supply project for beneficial and public uses. The western area water supply authority may acquire, construct, improve, develop, and own water supply infrastructure and may enter water supply contracts with member cities, water districts, and private users, such as oil and gas producers, for the sale of water for use within or outside the authority boundaries or the state. The western area water supply authority shall consider in the process of locating industrial water depots the location of private water sellers so as to minimize the impact on private water sellers. The independent water providers shall consider in the process of locating industrial water depots the location of private water sellers so as to minimize the impact on private water sellers.

Source:

S.L. 2011, ch. 500, § 1; 2013, ch. 490, § 14.

61-40-02. Western area water supply authority.

The western area water supply authority consists of participating political subdivisions located within McKenzie, Williams, Burke, Divide, and Mountrail Counties which enter a water supply contract with the authority. Other cities and water systems, within or outside the authority counties’ boundaries, including cities or water systems in Montana, may contract with the authority for a bulk water supply. The authority is a political subdivision of the state, a governmental agency, body politic and corporate, with the authority to exercise the powers specified in this chapter, or which may be reasonably implied. Participating member entities may be required to pay dues or water sale income to the authority, as determined by the bylaws and future resolutions of the authority. Participating member entities may not withdraw from the authority or fail or refuse to pay any water sale income to the authority until the state-guaranteed loans have been repaid. The provisions of subsections 1 through 5 of section 61-35-02.1 apply if the authority’s board of directors unanimously votes to convert to a water district.

Source:

S.L. 2011, ch. 500, § 1; 2013, ch. 490, § 15.

61-40-03. Western area water supply authority — Board of directors.

  1. The initial board of directors of the western area water supply authority consists of two representatives from each of the following entities: Williams rural water district, McKenzie County water resource district, the city of Williston, BDW water system association, and R&T water supply association. The governing body of each member entity shall select two representatives to the authority board who are water users of the member entity. If a vacancy arises for a member entity, the governing body of the member entity shall select a new representative to act on its behalf on the authority board. Directors have a term of one year and may be reappointed.
  2. Additional political subdivisions or water systems may be given membership on the board upon two-thirds majority vote of the existing board. To be eligible for membership on the board, the member entity must first contract with the authority for financial participation in the project.
  3. A member entity may designate an alternate representative to attend meetings and to act on the member’s behalf. The board may designate associate members who are nonvoting members of the board. Notwithstanding this section, initial board members must be removed if they have not entered a contract with the authority, before August 1, 2013, for financial participation in the project.

Source:

S.L. 2011, ch. 500, § 1; 2013, ch. 490, § 16.

61-40-04. Board of directors — Officers — Meetings.

  1. The board of directors shall adopt such rules and bylaws for the conduct of the business affairs of the authority as it determines necessary, including the time and place of regular meetings of the board, financial participation structure for membership in the authority, and membership appointment and changes. Bylaws need to be approved by member entity boards.
  2. The board shall elect from its members a chairman and a vice chairman. The board shall elect a secretary and a treasurer, which offices may be held by the same individual, and either or both offices may be held by an individual who is not a member of the board. Special meetings of the board may be called by the secretary on order of the chairman or upon written request of a majority of the qualified members of the board. Notice of a special meeting must be mailed to each member of the board at least six days before the meeting, provided that a special meeting may be held at any time when all members of the board are present or consent in writing.
  3. Board members are entitled to receive as compensation an amount determined by the board not to exceed the amount per day provided members of the legislative management under section 54-35-10 and must be reimbursed for their mileage and expenses in the amount provided for by sections 44-08-04 and 54-06-09.

Source:

S.L. 2011, ch. 500, § 1; 2013, ch. 490, § 17.

61-40-05. Authority of the western area water supply authority.

In addition to authority declared under section 61-40-01, the board of directors of the western area water supply authority may:

  1. Sue and be sued in the name of the authority.
  2. Exercise the power of eminent domain in the manner provided by title 32 or as described in this chapter for the purpose of acquiring and securing any right, title, interest, estate, or easement necessary or proper to carry out the duties imposed by this chapter, and particularly to acquire the necessary rights in land for the construction of an entire part of any pipeline, reservoir, connection, valve, pumping installation, or other facility for the storage, transportation, or utilization of water and all other appurtenant facilities used in connection with the authority. However, if the interest sought to be acquired is a right of way for any project authorized in this chapter, the authority, after making a written offer to purchase the right of way and depositing the amount of the offer with the clerk of the district court of the county in which the right of way is located, may take immediate possession of the right of way, as authorized by section 16 of article I of the Constitution of North Dakota. Within thirty days after notice has been given in writing to the landowner by the clerk of the district court that a deposit has been made for the taking of a right of way as authorized in this subsection, the owner of the property taken may appeal to the district court by serving a notice of appeal upon the acquiring agency, and the matter must be tried at the next regular or special term of court with a jury unless a jury be waived, in the manner prescribed for trials under chapter 32-15.
  3. Accept funds, property, services, pledges of security, or other assistance, financial or otherwise, from federal, state, and other public or private sources for the purpose of aiding and promoting the construction, maintenance, and operation of the authority. The authority may cooperate and contract with the state or federal government, or any department or agency of state or federal government, or any city, water district, or water system within the authority, in furnishing assurances and meeting local cooperation requirements of any project involving treatment, control, conservation, distribution, and use of water.
  4. Cooperate and contract with the agencies or political subdivisions of this state or other states, in research and investigation or other activities promoting the establishment, construction, development, or operation of the authority.
  5. Appoint and fix the compensation and reimbursement of expenses of employees as the board determines necessary to conduct the business and affairs of the authority and to procure the services of engineers and other technical experts, and to retain attorneys to assist, advise, and act for the authority in its proceedings.
  6. Operate and manage the authority to distribute water to authority members and others within or outside the territorial boundaries of the authority and this state.
  7. Hold, own, sell, or exchange any and all property purchased or acquired by the authority. All money received from any sale or exchange of property must be deposited to the credit of the authority and may be used to pay expenses of the authority.
  8. Enter contracts to obtain a supply of bulk water through the purchase of infrastructure, bulk water sale or lease, which contracts may provide for payments to fund some or all of the authority’s costs of acquiring, constructing, or reconstructing one or more water supply or infrastructure.
  9. Acquire, construct, improve, and own water supply infrastructure, office and maintenance space in phases, in any location, and at any time.
  10. Enter contracts to provide for a bulk sale, lease, or other supply of water for beneficial use to persons within or outside the authority. The contracts may provide for payments to fund some or all of the authority’s costs of acquiring, constructing, or reconstructing one or more water system projects, as well as the authority’s costs of operating and maintaining one or more projects, whether the acquisition, construction, or reconstruction of any water supply project actually is completed and whether water actually is delivered pursuant to the contracts. The contracts the cities, water districts, and other entities that are members of the western area water supply authority are authorized to execute are without limitation on the term of years.
  11. Borrow money as provided in this chapter.
  12. Make all contracts, execute all instruments, and do all things necessary or convenient in the exercise of its powers or in the performance of its covenants or duties or in order to secure the payment of its obligations, but an encumbrance, mortgage, or other pledge of property of the authority may not be created by any contract or instrument.
  13. Accept from any authorized state or federal agency loans or grants for the planning, construction, acquisition, lease, or other provision of a project, and enter agreements with the agency respecting the loans or grants. Other than state-guaranteed loans, additional debt that may form the basis of a claim for territorial or franchise protection for industrial water sales for oil and gas exploration and production may be acquired by the authority or member entities only upon approval by the industrial commission and the emergency commission.
  14. Contract debts and borrow money, pledge property of the authority for repayment of indebtedness, and provide for payment of debts and expenses of the authority.
  15. Operate and manage the authority to distribute water to any out-of-state cities or water systems that contract with the authority.
  16. Accept, apply for, and hold water allocation permits.
  17. Adopt rules concerning the planning, management, operation, maintenance, sale, and ratesetting regarding water sold by the authority. The authority may adopt a rate structure with elevated rates set for project industrial water depot and lateral supplies in recognition that a large component of the project expense is being incurred to meet the demands of industrial users. The industrial water depot and lateral rate structure must be approved in accordance with section 61-40-11.
  18. Develop water supply systems; store and transport water; and provide, contract for, and furnish water service for domestic, municipal, and rural water purposes; milling, manufacturing, mining, industrial, metallurgical, and any and all other beneficial uses; and fix the terms and rates therefore. The authority may acquire, construct, operate, and maintain dams, reservoirs, ground water storage areas, canals, conduits, pipelines, tunnels, and any and all treatment plants, works, facilities, improvements, and property necessary the same without any required public vote before taking action.
  19. Contract to purchase or improve water supply infrastructure or to obtain bulk water supplies without requiring any vote of the public on the projects or contracts. In relation to the initial construction of the system and for the purposes of entering a contract with the authority, municipalities are exempt from the public voting requirements or water contract duration limitations otherwise imposed by section 40-33-16.
  20. Accept assignment by member entities of contracts that obligate member entities to provide a water supply, contracts that relate to construction of water system infrastructure, or other member entity contracts that relate to authorities transferred to the authority under this chapter.
  21. Issue revenue bonds to repay its loan obligations to the Bank of North Dakota. For the purpose of issuing such revenue bonds, the provisions of chapters 40-35 and 40-36 apply to the extent necessary and consistent with S.L. 2017, ch. 19, § 12.

Source:

S.L. 2011, ch. 500, § 1; 2013, ch. 490, § 18; 2017, ch. 19, § 23.

61-40-05.1 Revenue bonds and bonds exempt from taxation.

  1. The authority shall have the power and authority to issue revenue bonds, to include refunding bonds, for the purpose of financing construction of projects and incidental facilities authorized by this chapter. Revenue bonds issued under this section must be issued as provided in chapter 61-35, and are not subject to section 61-35-15.
  2. Issuance of revenue bonds must be approved by a majority of the members of the board of directors of the authority.
  3. The authority shall pledge sufficient revenue from any revenue-producing facility or other revenue sources, excluding industrial water sales, for the payment of principal and interest on the bonds and shall establish rates for the facilities at a sufficient level, together with any other available funds, to provide for the operation of the facilities and for the bond payments in the manner provided by section 61-40-11.
  4. Revenue bonds may not be a general obligation of any participating member entity or the state and may not be secured by property taxes.
  5. The revenue bonds may be issued and sold at public or private sale on the terms and conditions determined by the board of directors.
  6. Bonds issued under this section and their income are exempt from taxation by the state.

Source:

S.L. 2021, ch. 20, § 8, eff April 28, 2021.

61-40-06. Oversight of authority projects. [Repealed]

Repealed by S.L. 2013, ch. 490, § 24.

61-40-07. Easement granted for pipelines and appurtenant facilities on any public lands.

In connection with the construction and development of the project, there is granted over all the lands belonging to the state, including lands owned or acquired for highway right-of-way purposes, a right of way for pipelines, connections, valves, and all other appurtenant facilities constructed as part of the project. However, the plans of the authority with respect to the use of right of way of roads must be approved by the director of the department of transportation and the director of the department of water resources before the grant becomes effective.

Source:

S.L. 2011, ch. 500, § 1; 2021, ch. 488, § 224, eff August 1, 2021.

61-40-08. Proceedings to judicially confirm contracts and other acts.

The authority, before making any contract or taking any special action, may commence a special proceeding in district court by which the proceeding leading up to the making of such contract or leading up to any other special action must be examined, approved, and confirmed. The judicial proceedings must comply substantially with the procedure required in the case of judicial confirmation of proceedings, acts, and contracts of an irrigation district.

Source:

S.L. 2011, ch. 500, § 1.

61-40-09. Default.

The industrial commission may review the ability of water depot and lateral sales to meet expenses in subdivisions a through d of subsection 1 of section 61-40-10, and if the industrial commission is uncertain of that ability, the industrial commission shall provide written notification to the state water commission and direct the Bank of North Dakota to consider revision of the terms of the loan repayments. If the authority is in default in the payment of the principal of or interest on the obligation to the Bank of North Dakota for a loan for which the Bank of North Dakota is the source of funds for the loan, the state water commission shall request funding from the legislative assembly to repay the principal and interest due.

Source:

S.L. 2011, ch. 500, § 1; 2013, ch. 490, § 22.

61-40-10. Industrial water depot and lateral sales.

  1. An accounting of industrial water depot and lateral sales collected and distributed by the authority must be reported to the industrial commission on a monthly basis. Participating member entities shall transfer industrial water depot and lateral sales to the authority within thirty days of receipt of the revenues. The boards of the authority and participating member entities must be notified of the sweep of revenues; however, board approval is not required. Upon the receipt of industrial water depot and lateral revenues by the authority, the authority shall apply immediately all revenues each month in the following order:
    1. One hundred fifty thousand dollars per biennium to the industrial commission for one additional full-time equivalent position to implement this section.
    2. Reimburse the authority for industrial water depot capital improvements and the cost for delivery of potable or nonpotable water sold at industrial water depots and lateral lines, at a cost no greater than the participating member, or submember, if applicable, entity rate at the location of the depot or lateral line.
    3. Regular payments on the participating member entity debt as described in the agreements with the authority as of March 31, 2013, and baseline 2010 industrial water sales included in and subject to the terms of the authority and participating member agreements as of March 31, 2013. Baseline 2010 industrial water sales for the city of Tioga in the year 2013 are limited to the lesser of legally permitted industrial water sales or the amount in the member agreement.
    4. Required monthly payments on state-guaranteed loans. The required transfer must occur no later than the twentieth day of the following month.
    5. Additional principal payment on state-guaranteed loans.
    6. Payment to the resources trust fund.
  2. If the state-guaranteed loans have not been repaid, without the written consent of the industrial commission the authority may not sell, lease, abandon, encumber, or otherwise dispose of any part of the property used in a water system of the authority if the property is used to provide revenue. Any requirements on the state-guaranteed loans for establishment of reserve funds for operation and maintenance or debt service are waived.
  3. The state water commission shall approve the planning, location, and water supply contracts of any authority depots, laterals, taps, turnouts, and risers for industrial sales for oil and gas exploration and production after July 1, 2013.

Source:

S.L. 2013, ch. 490, § 19.

61-40-11. Water rates.

The industrial commission may authorize the authority to contract at competitive, floating, market rates for industrial water depot and lateral retail sales. The authority shall provide a report on the rates to the commission and legislative management’s water topics overview committee on a regular basis. The authority shall develop domestic water rates that must include all costs for operation, maintenance, and operating and capital reserves, and debt repayment of all infrastructure managed or constructed by the authority, with the exception of the costs identified in section 61-40-10 which are paid for by industrial water depot and lateral sales.

Source:

S.L. 2013, ch. 490, § 20; 2017, ch. 19, § 24, eff July 1, 2017.

61-40-12. Construction funding.

The authority shall follow the state water commission requirements for funding through the resources trust fund or Bank of North Dakota state-guaranteed loans and shall present the overall plan and project components to the state water commission for funding approval. Priority on project funding first is reserved for state-guaranteed loan payments if not met by industrial water depot and lateral sales, second is for full repayment of existing federal debt if 7 U.S.C. 1926(b) protection for oil and gas exploration and production industrial water sales is asserted, and third for expanding domestic water supply to areas currently not served. In accepting construction funding, the authority and participating member entities agree to not hinder or prevent depot and lateral industrial water sales for oil and gas exploration and production.

Source:

S.L. 2013, ch. 490, § 21.

61-40-13. Franchise protection.

Notwithstanding any other provision of law, neither the authority nor its participating member entities may be required to waive the right to assert franchise protection under state or federal law with regard to water used for purposes other than industrial sales for oil and gas exploration and production.

Source:

S.L. 2013, ch. 490, § 23.

CHAPTER 61-41 Water Policy and Projects

61-41-01. Declaration of policy.

The legislative assembly declares that major water development and water management goals must be set forth and implemented in order to protect the long-term interests, economic vitality, and future benefits of the state and its citizens; that such water development and water management goals are essential for the economic growth and quality of life across the entire state; that rights to the use and enjoyment of waters of the Missouri River flowing through this state cannot be restricted by the federal government; that it is necessary to develop and utilize waters of the Missouri River for municipal, domestic, rural, and industrial purposes in this state; that flood control works are necessary to protect the lives and property of the citizens of this state; that major flood control works in and around major cities and other cities are necessary to address the record and damaging floods that have occurred; that regional water supply and rural water projects must be completed in order to provide a long-term, dependable quality and adequate quantity water supply for municipal, domestic, rural, and industrial uses; that irrigation provides a significant opportunity to further the agricultural opportunities in the state; and that an infrastructure loan fund will enable these goals and policies to be achieved and implemented, and will provide significant economic and financial benefits to the people of this state.

Source:

S.L. 2013, ch. 490, § 4.

61-41-02. Legislative intent — Reports to legislative assembly.

The legislative assembly declares and establishes the following goals and objectives:

  1. That it is necessary for the long-term welfare and economic well-being of the Souris River basin, and the entire state and its citizens, that the planning, design, and construction of the Mouse River enhanced flood control project be completed and implemented.
  2. That the Red River valley water supply project is critical to provide a dependable water supply for current and future generations in eastern North Dakota and is essential to provide for the long-term welfare, economic well-being, and quality of life for the entire state.
  3. That it is necessary for the long-term welfare and economic well-being of the Red River basin, and the entire state and its citizens, that the planning, design, and construction of the Fargo-Moorhead flood control project be completed and implemented.
  4. That regional water supply and rural water systems are necessary to provide a dependable and adequate quantity and quality water supply for municipal, domestic, rural, and industrial uses.
  5. That the state water commission and the southwest water authority shall begin the process of reviewing capital repayment and revenues being returned to the resources trust fund; payments necessary to meet obligations of existing bonds and other loans; mill levies; ownership of land and associated facilities; existing construction documents; liabilities; contracts with cities, bulk users, companies, and other users; and other items, and shall report to the legislative assembly those steps necessary for the transfer of ownership and responsibility of the southwest pipeline project from the state water commission to the southwest water authority.
  6. That the state water commission and the Garrison Diversion Conservancy District shall enter discussions with the bureau of reclamation concerning Garrison diversion unit facilities.
  7. That projects receiving state funds for construction and implementation not assert, claim, or seek to prevent other opportunities, either public or private, to utilize waters of the Missouri River for industrial uses in this state.
  8. That local water management and flood control projects are necessary for the economic well-being and quality of life of citizens in those local areas.
  9. That irrigation development offers significant opportunities for agriculture in this state.
  10. That an infrastructure loan fund for water development and management will provide significant financial benefits to projects and the citizens of this state, and will provide new capabilities to implement necessary water infrastructure projects across the state.

Source:

S.L. 2013, ch. 490, § 5.

61-41-03. Mouse River enhanced flood control project.

  1. The legislative assembly declares its intent to provide state funding for a share of the nonfederal or local cost of constructing the Mouse River enhanced flood control project.
  2. Any funds appropriated for the construction of the Mouse River enhanced flood control project may be carried over to future bienniums.
  3. State funding for the Mouse River enhanced flood control project may be appropriated at the time and in the manner determined by the legislative assembly, either concurrently or separately from federal and local funding for the Mouse River enhanced flood control project.

Source:

S.L. 2013, ch. 490, § 6.

61-41-04. Lower Heart River, Morton County, enhanced flood control project.

The legislative assembly declares its intent to provide state funding for a share of the nonfederal or local cost for construction of the lower Heart River, Morton County, flood control project.

Source:

S.L. 2013, ch. 490, § 7.

61-41-05. Southwest pipeline project — Report to legislative assembly.

The state water commission and the southwest water authority shall begin the process of reviewing capital repayment and revenues being returned to the resources trust fund; payments necessary to meet obligations of existing bonds and other loans; ownership of land and associated facilities; existing construction documents; liabilities; contracts with cities, bulk users, companies, and other users; and other items, and shall report to the legislative assembly those steps necessary for the transfer of ownership and responsibility of the southwest pipeline project from the state water commission to the southwest water authority.

Source:

S.L. 2013, ch. 490, § 8.

61-41-06. Garrison diversion unit.

The Garrison diversion unit has extensive federal facilities that have been constructed. It is the intent of the legislative assembly that the state water commission and Garrison Diversion Conservancy District begin discussions with the bureau of reclamation concerning the Garrison diversion unit facilities.

Source:

S.L. 2013, ch. 490, § 9.

61-41-07. Fargo-Moorhead flood control project.

  1. The sixty-third legislative assembly declares its intent to provide state funding not to exceed four hundred fifty million dollars for one-half of the nonfederal or local cost of constructing a federally authorized Fargo-Moorhead flood control project.
  2. Notwithstanding any other law, any funds appropriated for the construction of the Fargo-Moorhead flood control project may be carried over to future bienniums.
  3. State funding for the Fargo-Moorhead flood control project may be appropriated at the time and in the manner determined by the legislative assembly, either concurrently or separately from federal and local funding for the Fargo-Moorhead flood control project.

Source:

S.L. 2013, ch. 490, § 10.