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.

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 [Repealed]

Repealed by S.L. 1977, ch. 569, § 27.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.

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 [Repealed]

Repealed by S.L. 1977, ch. 569, § 27.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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

61-01-26.3. Water projects stabilization fund.

The water projects stabilization fund is a special fund in the state treasury. The fund consists of all money transferred to the fund and all interest and earnings upon moneys in the fund. Moneys in the fund may be used for defraying planning and construction expenses of water-related projects.

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.

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.

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.

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.

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.

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, effective July 1, 2015; 2017, ch. 419, § 2, effective August 1, 2017; 2019, ch. 507, § 1, effective August 1, 2019; 2021, ch. 490, § 1, effective 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, effective July 1, 2015; repealed by 2021, ch. 489, § 2, effective 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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

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.

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.

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.

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.

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.

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

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, effective July 1, 2015; 2017, ch. 19, § 20, effective July 1, 2017; 2019, ch. 45, § 17, effective May 2, 2019; 2021, ch. 20, § 7, effective 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.

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.

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.

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.

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.

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.

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

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.

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

61-03-01.1. Department of water resources established — Appointment and salary of director.

The department of water resources is established and is the primary state water agency. The governor shall appoint a director of the department subject to approval by a majority of the members of the state water commission. The director may not engage in any other occupation or business that may conflict with the statutory duties of the director. The position of director of the department is not a classified position, and the state water commission shall set the salary of the director within the limits of legislative appropriations.

61-03-01.2. Definitions.

For purposes of this chapter, unless the context otherwise requires:

1. “Department” means the department of water resources.
2. “Director” means the director of the department.

61-03-01.3. Director — State engineer — Powers and duties.

For purposes of this chapter, unless the context otherwise requires:

1. The director shall:
   1. Enforce all rules adopted by the department;
   2. Hire a state engineer who is a qualified professional engineer, has appropriate hydrology experience, and will report to the director;
   3. Hire other employees as necessary to carry out the duties of the department and director;
   4. Organize the department in an efficient manner; and
   5. Take any other action necessary and appropriate for administration of the department.
2. The state engineer is responsible for and shall manage the department's oversight of dam safety, water appropriations, and construction and drainage permits, and associated technical duties related to public safety and property protection.

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

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.

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.

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

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.
3. 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.
4. A person who receives an order, within ten days of the date of service of the order, may demand, in writing, a hearing on the matter. The demand for a hearing must state with particularity the issues, facts, and points of law to be presented at the hearing. If the 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.
5. 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.
6. 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.
7. 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.
8. 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.

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.

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.

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 department to forfeit any right to the use of water. The civil penalty for violation of an irrigation appropriation permit may not exceed five thousand dollars for each day the violation occurred and continues to occur. The civil penalty or forfeiture of a right to use water may be adjudicated by the courts or by the department through 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 department for enforcement of the order.

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

If an applicant for any permit processed by the department has 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, effective August 1, 2015; 2021, ch. 488, § 66, effective 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 department for approval.

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

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.

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.

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.

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.

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 department determines the use will not be to the detriment of existing rights. The department shall 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.

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.

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 department deems the information necessary.

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].

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.

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

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 department has not published notice of the application; or
2. The department determines other good and sufficient cause exists to refund the application fee.

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.

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.

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 the department determines an adjudicative proceeding is necessary, the department shall 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.

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

1. The department of water resources shall issue a permit if the department finds all of the following:
   1. The rights of a prior appropriator will not be unduly affected.
   2. The proposed means of diversion or construction are adequate.
   3. The proposed use of water is beneficial.
   4. The proposed appropriation is in the public interest. In determining the public interest, the department shall 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].

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.

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.

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.

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

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.

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.

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.

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.

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 department that 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.

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 department may 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.

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.

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

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.

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.

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.

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]

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]

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 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.

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

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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.

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.

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 the 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

61-06-23. Officers not to be interested in contract — Penalty. [Repealed]

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 •

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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.

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.

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.

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.

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.

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.

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 •

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Spoiled or blank ballots cast at such election shall not be counted either for or against the proposed issue.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 resources by registered or certified mail or express.

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.

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.

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.

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.

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 of 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.
   2. 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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