N.D. Admin. Code Title 89 — Water Commission

Article 89-01 General Administration

Chapter 89-01-01 Organization of Water Commission and Department of Water Resources

N.D. Admin. Code 89-01-01-01 History

The office of the state engineer was established in 1905. As initially created, the state engineer had many responsibilities, including as an ex-officio state coal mine inspector, as well as the chief engineer and secretary for the newly created highway commission. Eventually the state engineer's focus shifted to water-oriented responsibilities.

The water commission was created as a separate state agency in 1937, as an emergency measure during the prolonged drought. The law originally provided the state engineer was the commission's chief technical adviser, but that such responsibilities would be in addition to the engineer's regular duties as state engineer. In 1941, the law was amended to provide the state engineer would be the commission's secretary and chief engineer.

From 1937 through approximately 1977, the legislative assembly often vested either the water commission or state engineer with particular authority regarding water-related issues without any expressed reason or clear consistency. This commingling of regulatory authority created confusion, and likely led to the convention of referring to both the water commission and the office of the state engineer collectively as the commission. Finally in 1981, the legislative assembly passed a bill amending several sections and chapters of law to clarify the intent that: [w]henever the term "water conservation commission", "water commission", or "commission", or any derivative of those terms, which when used in context, indicates an intention to refer to that commission regarding [regulatory duties, those terms] shall be construed as granting full administrative and enforcement authority to the state engineer. 1981 N.D. Sess. Laws ch. 365 § 6. As such, the office of state engineer, rather than the water commission, was the agency charged with enforcing most water-related regulations.

In August 2021, House Bill No. 1353 of the sixty-seventh legislative assembly replaced the office of the state engineer with the department of water resources, which is led by a director. The department's primary functions are to promote statewide water management policies, enforce water-related regulations, and provide staff and engineering services for commission initiatives.

December 1, 1989; February 1, 1992; February 1, 1993; April 1, 1994; December 1, 1997; February 1, 2003; April 1, 2014; January 1, 2023.

History

• History: Amended effective August 1, 1983; November 1, 1985; October 1, 1987; November 1, 1989;
• General Authority: NDCC 61-02-11, 61-03-13
• Law Implemented: NDCC 61-02-11, 61-03-13

N.D. Admin. Code 89-01-01-02 Water commission organization and functions

1.North Dakota Century Code section 61-02-04 regulates commission membership. Two commissioners, the governor and the agriculture commissioner, are statewide officials elected for four-year terms. Eight commissioners representing the eight major drainage basins are appointed by the governor for staggered six-year terms. Under North Dakota Century Code

section 61-02-05, the governor is the commission's chairman, and the governor designates a vice chairman.

2.From 1941 through July 2021, the state engineer was the commission's statutory secretary.

On August 1, 2021, the director of the department of water resources became the commission's statutory secretary. The secretary assists the commission by coordinating commission operations and relieving individual commissioners of administrative detail.

3.The commission's primary functions are to review and consider cost-share requests from project sponsors seeking financial assistance, and to foster and promote water resource development throughout the state, including southwest pipeline project construction, northwest area water supply project construction and operation, and operation and maintenance of the Devils Lake outlets.

History

• History: Effective January 1, 2023; amended effective April 1, 2026.
• General Authority: NDCC 61-02-11
• Law Implemented: NDCC 61-02-14

N.D. Admin. Code 89-01-01-03 Department of water resources organization and functions

1.The department is headed by the director, who is a member of the governor's cabinet. The director provides overall leadership and decisionmaking, has hiring responsibilities, and oversees the department staff. The director also acts as a liaison between the department and the legislative and executive branches of state government, as well as a liaison between the governor and the federal government on water-related issues.

2.The state engineer, under North Dakota Century Code section 61-03-01.3, is responsible for associated technical duties related to public safety and property protection, including dam safety, water appropriations, and construction and drainage permits. 3.a.The department consists of several divisions. Some of the divisions are responsible for providing staff support to the commission functions, including management of the costshare assistance program; maintaining a water project inventory and water development plan; representing the commission on regional, national, and international natural resources planning bodies; assisting water resource boards; preparing engineering and feasibility reports and designs for construction, maintenance, and major repair of water resources projects throughout the state; and general accounting, budgeting, information technology, and support services.

b.Other divisions are responsible for assisting and advising the director and the state engineer in state law, administrative rule, and policy enforcement. The responsibilities of these regulatory enforcement divisions include reviewing and making recommendations on permit applications for drains, dikes, dams, and sovereign lands; administering the state's dam safety program; assisting communities with floodplain management; conducting navigability determinations and ordinary high water mark delineations; conducting analysis and providing recommended decisions on water permit applications; monitoring and balancing water use and availability throughout the state; enforcing the water permitting system; licensing water well contractors, water well pump and pitless unit installers, monitoring well contractors, and geothermal system drillers; developing and maintaining permit records; licensing weather modification contractors; permitting cloud seeding operations and research activities; conducting research into atmospheric research and cloud seeding technology; and monitoring, collecting, and disseminating precipitation and climate data.

History

• History: Effective January 1, 2023; amended effective April 1, 2026.
• General Authority: NDCC 61-03-13
• Law Implemented: NDCC 61-03-01.3

Article 89-02 Drainage of Water

Chapter 89-02-01 Drainage of Ponds, Sloughs, Lakes, Sheetwater, or Any Series Thereof

N.D. Admin. Code 89-02-01-01 Intent

Repealed effective January 1, 2015.

N.D. Admin. Code 89-02-01-02 Definitions

Unless the context otherwise requires, the following definitions apply:

1."Assessment drain" is defined in North Dakota Century Code section 61-16.1-02.

2."Board" is defined in North Dakota Century Code section 61-16.1-02.

3."Department" is defined in North Dakota Century Code section 61-03-01.2.

4."Director" is defined in North Dakota Century Code section 61-03-01.2.

5."District" is defined in North Dakota Century Code section 61-16.1-02.

6."Drain" is defined in North Dakota Century Code section 61-16.1-02.

7."Emergency" means a situation that will cause significant damage to people or property if not addressed immediately and that would not occur under normal circumstances. An emergency may exist because of an extremely wet hydrologic cycle. Damages caused by deliberate acts may not constitute an emergency.

8."Lake" means a well-defined basin that characteristically holds water throughout the year.

Lakes go dry only after successive years of below normal runoff and precipitation.

9."Lateral drain" is defined in North Dakota Century Code section 61-16.1-02.

10."Maintenance" means removal of silt and vegetation from a drain. Maintenance does not include deepening or widening a drain.

11."Parties of record" means each person named or admitted as a party or properly seeking and entitled to be admitted as a party.

12."Pond" means a well-defined land depression or basin that holds water in normal years throughout the summer. Ponds generally go dry only in years of below normal runoff and precipitation.

13."Pond, slough, lake, sheetwater, or any series thereof" means ponds, sloughs, lakes, or sheetwater that are hydrologically linked.

14."Sheetwater" is defined in North Dakota Century Code section 61-32-03.

15."Slough" includes two types:

a.Seasonal slough: a depression that holds water in normal years from spring runoff until approximately mid-July. In years of normal runoff and precipitation, a seasonal slough is usually not tilled, but can be used for hayland or pasture. In low runoff, dry years, these areas generally are tilled for crop production, but commonly reflood with frequent or heavy summer or fall rains.

b.Temporary slough: a shallow depression that holds water from spring runoff until approximately early June. In years of normal runoff and precipitation, a temporary slough is usually tilled for crop production. In years of high runoff or heavy spring rain, a temporary slough may not dry out until mid-July and generally would not be tilled, but may be used for hayland or pasture. A temporary slough frequently refloods during heavy summer or fall rains.

16."Watercourse" is defined in North Dakota Century Code section 61-01-06.

17."Watershed area" means the area that drains into a pond, slough, lake, sheetwater, or any series thereof.

January 1, 2015; January 1, 2023; April 1, 2026.

History

• History: Amended effective December 1, 1979; October 1, 1982; February 1, 1997; June 1, 1998;

N.D. Admin. Code 89-02-01-03 Permit required

In addition to North Dakota Century Code section 61-32-03, a permit is required for:

1.An assessment drain.

2.Construction of a lateral drain.

3.Modification of a previous permit, which includes deepening, widening, or extending a drain.

4.Pumping, gravity, or placement of fill.

January 1, 2015.

History

• History: Amended effective December 1, 1979; October 1, 1982; February 1, 1997; June 1, 1998;

N.D. Admin. Code 89-02-01-04 Permits for assessment drains

N.D. Admin. Code 89-02-01-05 Exceptions to the need for a permit

1.A drainage permit under section 89-02-01-03 is not required for maintenance of a drain.

2.The provisions of section 89-02-01-03 do not apply to any drain constructed under the direct and comprehensive supervision of the following federal or state agencies:

a.The state water commission;

b.The department;

c.The army corps of engineers;

d.The natural resources conservation service for projects constructed under the Watershed Protection and Flood Prevention Act [Pub. L. 83-566; 16 U.S.C. 1001];

e.The bureau of reclamation for projects that are part of the originally (1965) authorized Garrison diversion unit authorized;

f.The state department of transportation for federal aid projects; and

g.The public service commission for surface mining projects.

However, these agencies must notify the department of any proposed drainage projects under their direct supervision during the planning stages.

January 1, 2015; January 1, 2023.

History

• History: Amended effective December 1, 1979; October 1, 1982; February 1, 1997; April 1, 2004;

N.D. Admin. Code 89-02-01-06 Determination of watershed area

As a part of a drainage permit application, applicants shall report to the department the watershed area proposed to be drained by the project and how it was determined. This information must be verified by the department through best publicly available information from relevant local, state, or federal agencies. This information may be supplemented by any information obtained from an onsite investigation if the department determines it is necessary.

History

• History: Amended effective December 1, 1979; October 1, 1982; February 1, 1997; January 1, 2015;

N.D. Admin. Code 89-02-01-07 Filing application - Application completeness

1.Any person desiring a drainage permit shall file a complete application form with the department on a form provided by the department.

2.The department shall notify the applicant within fifteen days of application receipt, in writing, whether the application is deemed complete or incomplete.

3.If the application is deemed complete, the department shall begin its review of the application for statewide or interdistrict significance under section 89-02-01-07.4.

4.If the application is deemed incomplete, the department shall detail what information is missing in its notification to the applicant. Applicants are not restricted from submitting a new application for department consideration under this section.

5.Applications are subject to department requirements at the time the application is submitted to the department.

1.If an applicant wishes to make a change to the applicant's application after the application contents have been submitted to the department and without an identified deficiency by the department, the applicant shall withdraw the application and submit a new application.

2.The applicant may amend the application to address deficiencies identified by the department as a part of the department review under section 89-02-01-09.2. The department shall notify the applicant of the deficiency in writing, and the department shall cease its review of the application upon notification to the applicant that a deficiency has been identified. The applicant has up to ninety days from the notification to make any necessary amendments to the application to address the deficiency. This timeline may be extended in consultation with the department. If the department does not receive an application amendment or extension request within ninety days, the application must be denied. The department has up to ninety days to review and approve or deny the application from the receipt of the most recent amendment. All amended applications are subject to department review under section 89-02-01-09.2. 89-02-01-07.2. Department and applicant coordination.

1.If the department needs further information or support materials from the applicant during the department review, the department review shall cease and the applicant must be notified, in writing, of the department's need for information or additional support materials.

2.The applicant has up to ninety days from the notification by the department to provide the requested information or materials. This timeline may be extended in consultation with the department.

3.If the department does not receive the requested information, materials, or extension request within ninety days, the application must be denied.

4.The department has up to ninety days to review and approve or deny the application from the receipt of the most recently requested information or materials from the applicant. 89-02-01-07.3. Extension of department review.

In unique or complex situations, the department and applicant may agree to suspend the ninety-day timeline requirements detailed in this chapter. 89-02-01-07.4. Review for statewide or interdistrict significance - Determination.

1.The department may not begin its review of the application for statewide or interdistrict significance until the application is deemed complete under section 89-02-01-07. The department shall consider the criteria in section 89-02-01-09 in making its determination on whether the drain is of statewide or interdistrict significance.

2.Upon completion of the department's determination, or within ninety days, the department shall refer the application to the district within which is found a majority of the watershed or drainage area of the pond, slough, lake, sheetwater, or any series thereof for consideration, along with any application comments, recommendations, or engineering data.

3.The department shall require applications proposing drainage of statewide or interdistrict significance to be returned to the department if approved by the board. The district is responsible for returning the application to the department for the department's final review and approval.

History

• History: Amended effective December 1, 1979; October 1, 1982; February 1, 1997; January 1, 2015; 89-02-01-07.1. Application amendments.

N.D. Admin. Code 89-02-01-08 Referral of applications to appropriate district

N.D. Admin. Code 89-02-01-09 Criteria for determining whether drainage is of statewide or interdistrict

1.In determining whether the proposed drainage is of statewide or interdistrict significance, the department shall consider the following criteria:

a.Drainage affecting property owned by the state or its political subdivisions.

b.Drainage of sloughs, ponds, or lakes having recognized fish and wildlife values.

c.Drainage having a substantial effect on another district.

d.Drainage converting previously noncontributing areas (based on the National Oceanic and Atmospheric Administration Atlas 14 twenty-five year event - four percent chance) into permanently contributing areas.

2.The review may include a solicitation of comments. For good cause, the department may determine or refuse to determine any proposed drainage as having statewide or interdistrict

1.Upon receipt of the board's approval of a drainage application for drains determined to have statewide or interdistrict significance under section 89-02-01-07.4 and any information received or considered by the board as a part of that permit application, the department shall hold an information-gathering public meeting.

2.The procedure for notice and meeting must be as follows:

a.The department shall publish a notice of meeting thirty days prior to holding the meeting.

b.The meeting must be conducted by the department.

c.The meeting may be held in Bismarck. The meeting may be virtual.

d.The meeting is not an adjudicative proceeding hearing under North Dakota Century Code

chapter 28-32.

1.The department has up to ninety days to review and approve or deny drainage applications for drains determined to have statewide or interdistrict significance under section 89-02-01-07.4 from the time the most recent application amendment detailed under section 89-02-01-07.1 is received and subject to department and applicant coordination detailed under section 89-02-01-07.2. The ninety-day review period begins the day after the information-gathering meeting in section 89-02-01-09.1.

2.The department shall review the board's approval of the application, any information received or considered by the board as a part of the board's review, and information gathered from the department's information-gathering meeting under section 89-02-01-09.1. The department may request additional information, such as plans and specifications of the drain, an operation and maintenance manual, proof of flowage easements, or additional engineering analysis of the downstream impacts as a part of the review.

3.As a part of the department review of applications proposing drainage of statewide or interdistrict significance, the department shall consider the following factors:

a.The water volume proposed to be drained and its impact upon the watercourse into which it will be drained;

b.Adverse effects that may occur to downstream landowners. This factor is limited to the project's hydrologic effects, such as erosion, flood duration, sustained flows impacts, and downstream water control device operation impacts;

c.The engineering design and other physical aspects of the drain;

d.The project's impact on flooding problems in the project watershed;

e.The project's impact on ponds, sloughs, streams, or lakes having recognized fish and wildlife values;

f.The project's impact on agricultural lands;

g.Whether required easements have been obtained; and

h.Other factors unique to the project.

Repealed effective April 1,2026. 89-02-01-09.4. Evaluation of applications by the director of statewide or interdistrict significance - Information to be used. 89-02-01-09.5. Procedure, availability, and contents of notice of director's decision to approve or deny application of statewide or interdistrict significance.

1.The department shall provide a copy of the decision to the parties of record.

2.The notice of decision must include:

a.The name of the drain;

b.The applicant's name;

c.Whether the application was granted or denied;

d.The date of the decision;

e.The availability of the full text of the decision; and

f.That an adjudicative hearing may be requested on the project under North Dakota Century Code 61-03-22.

Unless otherwise specifically stated, the department may attach conditions to permits of statewide or interdistrict significance.

The permit recipient may make a written request to the board for a one-year extension to the time to complete the drain's construction. Only two extensions may be granted. All requests for extensions must be made at least sixty days before the expiration date and must specifically state why construction has not been completed. If the request is for an extension relating to a permit of statewide or interdistrict significance, the extension must be submitted to and approved by both the director and the board.

History

• History: Amended effective December 1, 1979; October 1, 1982; February 1, 1997; January 1, 2015; 89-02-01-09.1. Department information-gathering meeting.
• History: Effective February 1, 1997; amended effective January 1, 2015; January 1, 2023; April 1, 2026. 89-02-01-09.2. Department review - Factors considered - Drains of statewide or interdistrict
• History: Effective February 1, 1997; amended effective April 1, 2000; January 1, 2015; April 1, 2026.
• Law Implemented: NDCC 61-01-26, 61-16.1-10(3), 61-32-03 89-02-01-09.3. Time for determination by board.
• History: Effective February 1, 1997; amended effective January 1, 2015; January 1, 2023; April 1, 2026.
• Law Implemented: NDCC 61-03-22, 61-32-03 89-02-01-09.6. Request for department's hearing. 89-02-01-09.7. Notice of department's hearing. 89-02-01-09.8. Evidence at the department's hearing. 89-02-01-09.9. Time for determination by the director - Copies of decision. 89-02-01-09.10. Consideration of evidence not contained in the department's record. 89-02-01-09.11. Conditions to permits.
• History: Effective February 1, 1997; amended effective April 1, 2000; January 1, 2015; January 1, 2023; April 1, 2026. 89-02-01-09.12. Extending time to complete drain construction.
• History: Effective February 1, 1997; amended effective April 1, 2004; January 1, 2015; January 1, 2023; April 1, 2026.

N.D. Admin. Code 89-02-01-10 District hearing on applications of statewide or interdistrict significance

N.D. Admin. Code 89-02-01-11 Emergency drainage

N.D. Admin. Code 89-02-01-12 Notice of district hearing

N.D. Admin. Code 89-02-01-13 Content of notice of hearing

N.D. Admin. Code 89-02-01-14 Affidavit of mailing and affidavit of notice

N.D. Admin. Code 89-02-01-15 Time for determination by board of managers

N.D. Admin. Code 89-02-01-16 Consideration by the state engineer and districts

N.D. Admin. Code 89-02-01-17 Approval of drainage permit applications by district

N.D. Admin. Code 89-02-01-18 Denial of application by the district. 89-02-01-18.1. Notice by state engineer of public hearing on application of statewide or interdistrict significance. 89-02-01-18.2. Evidence presented at the state engineer's public hearing

N.D. Admin. Code 89-02-01-19 Consideration by state engineer of applications of statewide or interdistrict

N.D. Admin. Code 89-02-01-20 Criteria to determine whether drainage will adversely affect lands of lower landowners. 89-02-01-20.1. Time for determination by the state engineer. 89-02-01-20.2. Consideration of evidence not contained in the record

N.D. Admin. Code 89-02-01-21 Conditions to permits

N.D. Admin. Code 89-02-01-22 Requirements for a valid permit to drain

N.D. Admin. Code 89-02-01-23 Procedure upon complaint of violation

N.D. Admin. Code 89-02-01-24 Enforcement action without receipt of complaint

Repealed effective October 1, 1982.

N.D. Admin. Code 89-02-01-25 Criminal complaint

Repealed effective October 1, 1982.

N.D. Admin. Code 89-02-01-26 Ditches or drains existing for ten years or more

N.D. Admin. Code 89-02-01-27 Notice of drainage application denials to commissioner of agriculture

Repealed effective August 1, 1994.

N.D. Admin. Code 89-02-01-28 Landowner assessment appeal to department

Chapter 89-02-02 Drainage of Wetlands [Repealed]

N.D. Admin. Code 89-02-02 Drainage of Wetlands [Repealed]

CHAPTER 89-02-02

DRAINAGE OF WETLANDS [Repealed effective February 1, 1997]

Chapter 89-02-03 Wetlands Bank [Repealed]

N.D. Admin. Code 89-02-03 Wetlands Bank [Repealed]

CHAPTER 89-02-03

WETLANDS BANK [Repealed effective February 1, 1997]

Chapter 89-02-04 Drainage Complaint Appeals

N.D. Admin. Code 89-02-04-01 Scope of chapter

N.D. Admin. Code 89-02-04-02 Definitions

N.D. Admin. Code 89-02-04-03 Filing of complaint

N.D. Admin. Code 89-02-04-04 Complaint to department - Director's action when board fails to act

N.D. Admin. Code 89-02-04-05 Form and acceptance of appeal

1.Any aggrieved party under subsection 1 of North Dakota Century Code section 61-32-08 may appeal the board's decision to the department of water resources. The following information is required by the department to be considered a complete appeal. Only the information below may be accepted as a part of an appeal.

a.A completed appeal form including the location of the alleged unauthorized drainage and the ownership information of the land on which the alleged drainage is located;

b.A copy of the original complaint to the board and all the materials required as a part of that complaint under North Dakota Century Code section 61-32-07;

c.The board's decision; and

d.A statement specifying the reason why the board's position is erroneous.

2.The department may not begin evaluating the appeal until all necessary documentation is provided to the department by the aggrieved party. If all required documentation is not provided to the department within the statutory submission timeline, the appeal is deemed incomplete and void.

1.A person may file a complaint with the department if the board fails to investigate and make a determination concerning the complaint within a reasonable time as outlined in subsection 2 of North Dakota Century Code section 61-32-08. The following information is required by the department to be considered a complete complaint. Only the information below may be accepted as a part of a complaint.

a.A copy of the original complaint to the board and all the materials required as a part of that complaint under North Dakota Century Code section 61-32-07; and

b.Proof the complaint was submitted to the board, including the date the complaint was submitted to the board.

2.The department may not begin evaluating the complaint until all necessary documentation is provided to the department by the aggrieved party. If all required documentation is not provided to the department within the statutory submission timeline, the complaint is deemed incomplete and void.

History

• History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023; April 1, 2026. 89-02-04-05.1. Form and acceptance of complaint.
• History: Effective April 1, 2026.

N.D. Admin. Code 89-02-04-06 Department's review of board's decision

N.D. Admin. Code 89-02-04-07 Sufficiency of information on appeal

N.D. Admin. Code 89-02-04-08 Department's independent investigation

1.In addition to the information required in section 89-02-04-05 or 89-02-04-05.1, the department may review the following information as a part of its independent investigation of appeals to the department regarding the board's decision and complaints to the department as a result of board inaction:

a.Topographic information and aerial photographs of the area;

b.Any existing surveys of the area;

c.Department records;

d.Laws, rules, and department policies in effect at the time of the alleged unauthorized drainage; or

e.Publicly available information from relevant local, state, or federal agencies.

2.The department may choose to conduct a site visit under North Dakota Century Code section 61-32-08 to obtain additional information.

History

• History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023; April 1, 2026.

N.D. Admin. Code 89-02-04-09 Demand for hearing by affected landowner

N.D. Admin. Code 89-02-04-10 Request for hearing by others than affected landowners

N.D. Admin. Code 89-02-04-11 Appointment of hearing officer

N.D. Admin. Code 89-02-04-12 Purpose of hearing

N.D. Admin. Code 89-02-04-13 Qualifications of witnesses at department's hearings

N.D. Admin. Code 89-02-04-14 Notice of hearing

N.D. Admin. Code 89-02-04-15 Issues limited to those contained in notice

N.D. Admin. Code 89-02-04-16 Notice of witnesses at hearing - Time frame

Repealed Effective April 1, 2026.

N.D. Admin. Code 89-02-04-17 Subpoena of witnesses

N.D. Admin. Code 89-02-04-18 Prehearing conference

N.D. Admin. Code 89-02-04-19 Order of presentation at hearing

N.D. Admin. Code 89-02-04-20 Cross-examination

N.D. Admin. Code 89-02-04-21 Record of hearing - Consideration by hearing officer

N.D. Admin. Code 89-02-04-22 Recommendation of hearing officer

N.D. Admin. Code 89-02-04-23 Decision of director on record of hearing

Chapter 89-02-05 Licenses for Emergency Drainage [Repealed]

N.D. Admin. Code 89-02-05 Licenses for Emergency Drainage [Repealed]

CHAPTER 89-02-05

LICENSES FOR EMERGENCY DRAINAGE [Repealed effective February 1, 1997]

Chapter 89-02-05.1 Licenses for Emergency Drainage

N.D. Admin. Code 89-02-05.1 Licenses for Emergency Drainage

CHAPTER 89-02-05.1

EMERGENCY DRAIN PERMITS

Section 89-02-05.1-01Scope of Chapter [Repealed] 89-02-05.1-02Definitions [Repealed] 89-02-05.1-03Permit to be Temporary 89-02-05.1-04Emergency Defined [Repealed] 89-02-05.1-05Application Form 89-02-05.1-06Consideration of Permit Application 89-02-05.1-07Decision on Permit Application - Conditions 89-02-05.1-08Requirement for Permanent Permit Application 89-02-05.1-09Closure of Drain 89-02-05.1-09.1Extension of Permit 89-02-05.1-10License Does Not Absolve Liability for Damages [Repealed] 89-02-05.1-01. Scope of chapter. 89-02-05.1-02. Definitions. 89-02-05.1-03. Permit to be temporary.

Emergency drain permits received under this chapter are only valid for six months plus any valid extensions.

History: Effective June 1, 1998; amended effective January 1, 2015. 89-02-05.1-04. Emergency defined. 89-02-05.1-05. Application form.

An emergency drain permit application must be written and include:

1.Landowner's name and address.

2.Legal description of land where the emergency drain will be located.

3.A map showing the drain location.

4.An estimate of the surface acreage of the pond, slough, lake, sheetwater, or any series thereof and the volume of water to be drained by the emergency drain.

5.A list of all downstream adjacent landowners for a distance of one mile [1.6 kilometers] from the discharge point, along with the addresses and telephone numbers of these landowners.

6.Copies of any written permission received from downstream landowners.

7.A compilation of any written or oral permission and refusals from downstream landowners.

8.A description of the emergency.

9.Written permission allowing the department and board to inspect the drain.

History: Effective June 1, 1998; amended effective January 1, 2015; January 1, 2023. 89-02-05.1-06. Consideration of permit application.

An emergency drain permit application must be sent simultaneously to the board and the department. The application will be reviewed for completeness by the board and the department. The department must make a preliminary determination as to the existence of an emergency. As soon as possible, a meeting among the board, the department, and other affected parties as determined by the department must be held. The applicant or any other affected party may make a statement concerning the emergency drain permit application during the meeting. Any meeting must be electronically recorded. During the meeting, but after all parties have been given an opportunity to present their views, the board must make a recommendation to the department whether the permit should be granted.

History: Effective June 1, 1998; amended effective January 1, 2015; January 1, 2023. 89-02-05.1-07. Decision on permit application - Conditions.

After completion of the meeting, the director must consider:

1.The written information received;

2.The matters discussed;

3.The board's recommendation; and

4.Whether the emergency permit should be granted.

If the permit is granted, the director may place any condition upon it, including a requirement for a bond and that receipt of an emergency drain permit does not relieve an applicant from liability for damages resulting from any activity conducted under the permit.

History: Effective June 1, 1998; amended effective January 1, 2015; January 1, 2023. 89-02-05.1-08. Requirement for permanent permit application.

If the drain is to be permanent, the applicant must submit a drain permit application to the department under chapter 89-02-01. If the application is submitted at least thirty days before the emergency permit expires and the permanent drain has the same alignment as the emergency drain, the director may extend the term of the emergency permit until final action on the drain permit application has been taken. If the watershed of the permanent drain is the same as the emergency drain, but has a different alignment, the emergency drain permit must only be extended under section 89-02-05.1-09.1.

History: Effective June 1, 1998; amended effective January 1, 2015; January 1, 2023. 89-02-05.1-09. Closure of drain.

If a permanent drain permit application is not submitted thirty days before the emergency permit expires, the applicant must immediately prepare to close the drain unless the applicant has applied for an extension under section 89-02-05.1-09.1. Preparations must include obtaining any permission or authorizations. Closure of the drain must be completed by the emergency permit expiration date. The applicant must keep the board and the department informed of the applicant's progress in closing the drain. The applicant must notify the board and the department in writing when the emergency drain has been completely closed.

History: Effective June 1, 1998; amended effective January 1, 2015; January 1, 2023. 89-02-05.1-09.1. Extension of permit.

The applicant must submit a written request for an extension at least thirty days before the expiration of the emergency permit. If it is determined that an emergency still exists, the director may issue a one-time, six-month extension to the permit's expiration date. If an emergency continues to exist after the one-time extension, an applicant may reapply under chapter 89-02-05.1 for a new emergency drain permit.

History: Effective January 1, 2015; amended effective January 1, 2023. 89-02-05.1-10. License does not absolve liability for damages.

Article 89-03 Water Appropriations

Chapter 89-03-01 Water Permits

N.D. Admin. Code 89-03-01-01 Conditional water permit application submission

A conditional water permit application must be submitted to the department on the form provided by the department. A map containing the information prescribed by the department must accompany the application. Unless the department first approves another type of map, the map must be prepared from a survey, aerial photograph, or topographic map, and must be certified by a North Dakota-licensed surveyor. The department may require information not requested in the application.

The department must note the receipt date of a properly completed application on the application.

Except for water applied to domestic, livestock, or fish, wildlife, and other recreational uses where a water permit is not required, this filing date establishes the application's original priority date, subject to the application's final acceptance and issuance of a perfected water permit by the department. For water applied to domestic, livestock, or fish, wildlife, and other recreational uses where a water permit is not required, the priority date is the date the quantity of water was first used.

A conditional water permit applicant must have a legal interest where the point of diversion and conveyance system will be located. The applicant must demonstrate to the department's satisfaction that the applicant has the capability to put the water to beneficial use. If the applicant is seeking a permit for irrigation, the applicant must also have a legal interest in the land to be irrigated. If the applicant is seeking a permit to impound water, the applicant must have a legal interest in the property inundated by the impounded water. The department may require additional verification of a property interest demonstrating the capability to put the water to beneficial use.

January 1, 2023.

A water permit may authorize water storage for flood control or other reasons deemed necessary by the department. However, authorization to store water for flood control or other reasons does not create a water right. If stored water will be put to beneficial use, a water permit must be obtained before beneficial use.

Unless otherwise authorized by the department, any person authorized to store water, except for flood control, may only fill the reservoir to the amount authorized in the permit once each year. The reservoir will be filled during the first runoff following February first of each year. A consumptive use authorized in the water permit must be taken from the stored water. Unless otherwise authorized by the department and with the exception of water stored for flood control, any inflows to the reservoir after the reservoir has been filled for the year must be allowed to pass through the reservoir.

Any incorporated municipality or rural water system that appropriates water in excess of its current needs under North Dakota Century Code section 61-04-06.2 may sell the excess water provided:

1.The municipality or rural water system is supplying all the demands of its residents or members;

2.The agreement for sale of water is terminable by the incorporated municipality or rural water system upon six months' notice to the purchasing entity; and

3.The agreement for sale is approved by the department.

The excess water may not be sold for any use other than that stated in the conditional or perfected water permit. This section does not apply to agreements for the sale of water entered into before November 1, 1989.

History

• History: Amended effective April 1, 1989; February 1, 1994; July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-03 89-03-01-01.1. Priority date.
• History: Effective April 1, 1989; amended effective August 1, 1994; July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-04, 61-04-06.3 89-03-01-01.2. Land, property, or other interest requirement for conditional water permit.
• History: Effective April 1, 1989; amended effective August 1, 1994; April 1, 2004; July 1, 2014;
• Law Implemented: NDCC 61-04-02.2, 61-04-03, 61-04-06 89-03-01-01.3. When a water permit for stored water must be obtained.
• History: Effective November 1, 1989; amended effective August 1, 1994; July 1, 2014; January 1, 2015; January 1, 2023.
• Law Implemented: NDCC 61-04-01.1, 61-04-01.2, 61-04-02 89-03-01-01.4. Amount of water that may be held in storage under a water permit.
• History: Effective November 1, 1989; amended effective July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-01.2, 61-04-02, 61-04-06.2 89-03-01-01.5. Sale of excess water by an incorporated municipality or rural water system.
• History: Effective November 1, 1989; amended effective June 1, 1998; July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-02-27, 61-04-06.2

N.D. Admin. Code 89-03-01-02 Correction of unsatisfactory application

N.D. Admin. Code 89-03-01-03 Application amendment

1.An applicant may amend a conditional water permit application. If the department determines the amendment is likely to adversely affect another applicant whose application was submitted after the application sought to be amended and before the proposed amendment, the department must change the priority date of the amended application to the date the amendment request was received.

2.A request to amend an application may be by letter or by the submission of an amended application form for a conditional water permit.

3.If any notice of the application has been mailed before the request to amend, the department may require the applicant to mail a corrected notice of the application to all persons who were sent the original notice and submit an affidavit of service of corrected notice to the department.

If the notice of the application has been published, the department may require a corrected notice to be published. The applicant must pay publication costs.

A request to assign a conditional water permit application to another person must be submitted to the department in writing. When title of land for which there is a pending application is transferred, either the transferee or the applicant may apply for application assignment. The assignment request must describe the transferee's interest in the application permit. The department may request additional documentation of the transferee's interest.

When a conditional water permit application involves water stored in a reservoir, a volume of water equal to the mean net evaporative loss over the surface area of the impoundment at the principal spillway elevation must be requested as an annual use that will be taken from the stored water.

History

• History: Amended effective April 1, 1989; April 1, 2000; July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-04 89-03-01-03.1. Transfer of an application to another parcel. 89-03-01-03.2. Application assignment.
• History: Effective April 1, 1989; amended effective April 1, 2000; July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-03, 61-04-04, 61-04-15 89-03-01-03.3. Evaporative losses.
• History: Effective April 1, 1989; amended effective August 1, 1994; July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-03, 61-04-06.2

N.D. Admin. Code 89-03-01-04 Notice of application

1.When a proper conditional water permit application is filed, the department will forward the appropriate number of completed notice of application forms to the applicant. The notice must include the following essential facts:

a.All requested points of diversion;

b.Requested annual appropriation and withdrawal rate;

c.Requested source and purpose of use; and

d.Applicant's name; and

e.Newspaper in which the water permit application notice must be published.

The notice must also state that the notice published in the newspaper will contain a date by which any person having an interest in the application may file written comments regarding the proposed appropriation with the department and that anyone who files written comments will be mailed a copy of the department's recommended decision on the application.

2.Upon receipt of the completed notice of application forms, the applicant must send a notice of application form as provided in North Dakota Century Code section 61-04-05. The determination of title owners at the time of the application must be based on title records on file with the appropriate county recorder. For land subject to a contract for deed, the contract's grantor and grantee must both be notified.

3.After notice of application forms have been mailed to those required by North Dakota Century Code section 61-04-05, the applicant must properly complete an affidavit of notice and return it to the department. The affidavit of notice must state how the applicant determined the record title owners and must list the names and addresses of those who were sent notices.

History

• History: Amended effective April 1, 1989; November 1, 1989; February 1, 1994; April 1, 2000; April 1, 2004; July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-05

N.D. Admin. Code 89-03-01-05 Publication of notice of water permit applications

In addition to the requirements in North Dakota Century Code section 61-04-05, a copy of the notice of the conditional water permit application to be published must be sent to the applicant.

April 1, 2000; July 1, 2014; January 1, 2023.

Repealed effective April 1, 2000.

History

• History: Amended effective April 1, 1989; November 1, 1989; February 1, 1994; August 1, 1994;
• Law Implemented: NDCC 61-04-05 89-03-01-05.1. Notice of decision on water permit application.

N.D. Admin. Code 89-03-01-06 Filing proof of publication and mailing

Repealed effective April 1, 1989. 89-03-01-06.1. Consideration of evidence not contained in the state engineer's record.

Repealed effective April 1, 2000. 89-03-01-06.2. Notice of continuance - Responsibility.

Repealed effective July 1, 2014. 89-03-01-06.3. Record - Official notice.

Unless specifically excluded by the department or the hearing officer, the record in each water permit application proceeding includes, if available, the following reports or records, or portions thereof, relevant to the proposed appropriation:

1.United States department of agriculture natural resources conservation service reports, including the North Dakota hydrology manual, North Dakota irrigation guide, and county soil survey reports.

2.United States geological survey and department streamflow records.

3.United States geological survey and department water quality data.

4.National oceanic and atmospheric administration climatological data.

5.United States geological survey topographic maps.

6.Department water permit files.

7.Department annual water use reports.

8.Department and United States geological survey ground water level data.

9.Water well contractors well completion reports.

10.Department test hole records.

11.Department water resource investigations reports and ground water study reports.

12.Department and United States geological survey county ground water study reports.

13.Information in department and state water commission files, records, and other published reports.

April 1, 2026.

History

• History: Effective February 1, 1994; amended effective April 1, 2000; July 1, 2014; January 1, 2023;
• Law Implemented: NDCC 61-04-05.1

N.D. Admin. Code 89-03-01-07 Necessity of works and construction of works for a conditional water permit

A conditional water permit application may only be considered if works are associated with the proposed appropriation. For any water appropriation that involves the construction of works that require a construction permit from the department, the water permit may be issued before receipt of the construction permit. However, the water permit is not valid until the construction permit is issued.

History

• History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-02

N.D. Admin. Code 89-03-01-08 Point of diversion

The department may not issue a water permit that allows for the appropriation of water from more than one water source. An appropriation from the main channel of a river and from a tributary of the river is an example of an appropriation from more than one water source. The department may issue a water permit that allows for points of diversion from different locations from the same water source, provided the department finds good cause for doing so.

History

• History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-06.2

N.D. Admin. Code 89-03-01-09 Appropriation not requiring water permit

N.D. Admin. Code 89-03-01-10 Emergency or temporary authorization

An application for a temporary water permit must be made on the form provided by the department.

In that request, the applicant must indicate the purpose for which water will be used, water quantity needed, proposed point of diversion, type of use, withdrawal rate, water source, proposed use dates, and applicant's address. The department will evaluate the request and, if it is granted, the department will list on the temporary water permit the conditions that govern the appropriation.

An applicant for emergency water use, if the situation warrants, may call the department requesting immediate water use. Following an oral request and oral approval by the department for authorization, a temporary application form must be submitted.

The applicant for a temporary water permit is responsible for all damages that may be caused to other appropriators or any other individual because of the emergency or temporary water use.

To accommodate annual crop rotation requirements, the holder of a water permit for irrigation may make a request to the department for the temporary transfer of the volume of water appropriated from an approved point of diversion to another tract of land. The transfer must be made for an entire irrigation season and conform to the terms and conditions of the water permit, except that no water right will accrue to the land under temporary irrigation. Irrigation may not take place on the tract of land from which the transfer is made during that irrigation season. The request for a transfer must be made by May fifteenth of the year the transfer is to be in effect.

The following filing fee schedule will be used for temporary water permit applications. The fee must be included with the application. The department may waive the fees for certain emergency uses of a temporary water permit, including firefighting.

Volume of Water Requested:

Less than one acre-foot$75 One to ten acre-feet$125 More than ten acre-feet$200 Filing fees are not required for requests made under section 89-03-01-10.1.

History

• History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-02.1 89-03-01-10.1. Temporary water transfer for irrigation.
• History: Effective August 1, 1994; amended effective January 1, 2023.
• Law Implemented: NDCC 61-04-02.1 89-03-01-10.2. Temporary permit fees.
• History: Effective July 1, 2014; amended effective January 1, 2023.
• Law Implemented: NDCC 61-04-02.1, 61-04-06.2

N.D. Admin. Code 89-03-01-11 Competing applications

Conditional water permit applications from the same source for different uses will be considered competing applications if received by the department within ninety days of each other.

History

• History: Effective April 1, 1989; amended effective January 1, 2023.
• Law Implemented: NDCC 61-04-06.1

N.D. Admin. Code 89-03-01-12 Extensions and cancellation

Where the time has expired to put any portion of the water appropriated under a conditional water permit to the beneficial use named in the permit, the department will notify the permitholder. The department will provide the permitholder with a form to request an extension for applying the water to the beneficial use and to explain why an extension should be granted. Except in overriding circumstances, no extension will be granted when other conditional water permit applications are pending from a limited supply source.

History

• History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-14

N.D. Admin. Code 89-03-01-13 Report of water use

The form for reporting annual water use under North Dakota Century Code section 61-04-27 must include the permit number, water usage amount, pumping rate, if applicable, and any other information the department may require. One form must be filed for each water permit held.

A permitholder who fails to timely submit a complete and accurate annual water use report under North Dakota Century Code section 61-04-27 must be assessed a fine of two hundred fifty dollars for each water permit.

History

• History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023; April 1, 2026.
• Law Implemented: NDCC 61-04-27 89-03-01-13.1. Fines - Water use reporting.
• History: Effective July 1, 2014; amended effective January 1, 2023; April 1, 2026.
• Law Implemented: NDCC 61-03-23, 61-04-27

N.D. Admin. Code 89-03-01-14 Notice

Chapter 89-03-02 Water Permit Modification

N.D. Admin. Code 89-03-02-01 Submission of an application to add a point of diversion or for a change in

purpose of use.

An application to add a point of diversion or for a change in purpose of use must be submitted to the department on the form provided by the department. The department may require additional information not requested in the application. A change in purpose of use may only be granted as specified in North Dakota Century Code section 61-04-15.4.

History

• History: Amended effective April 1, 1989; July 1, 2014; January 1, 2023; April 1, 2026.
• Law Implemented: NDCC 61-04-04, 61-04-06.1, 61-04-15.2, 61-04-15.4

N.D. Admin. Code 89-03-02-02 Return of unsatisfactory application

If the change in purpose of use or to add a point of diversion application is not submitted on the proper form or if the form is improperly completed, it will be returned within thirty days, along with a statement of the required corrections.

History

• History: Amended effective April 1, 1989; July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-04, 61-04-15.2, 61-04-15.4

N.D. Admin. Code 89-03-02-03 Application amendment

An applicant for a change in purpose of use or to add a point of diversion, before being instructed to give notice as required by section 89-03-01-04, may amend an application. An amendment request may be made by letter or by submission of an amended application.

If any notice of an application for a change in the purpose of use or to add a point of diversion has been mailed before the request to amend, the department may require the applicant to mail a corrected notice of the application to all persons who were sent the original notice and must submit an affidavit of service of corrected notice to the department. If the notice of application has been published, the department may require a corrected notice to be published. The applicant must pay publication costs.

History

• History: Amended effective April 1, 1989; April 1, 2000; July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-04, 61-04-15.2, 61-04-15.4

N.D. Admin. Code 89-03-02-04 Fee

Repealed effective April 1, 1989.

N.D. Admin. Code 89-03-02-05 Notice of application

Notification of an application for change in purpose of use or to add a point of diversion must be handled in accordance with section 89-03-01-04.

History

• History: Amended effective April 1, 1989; August 1, 1994; July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-05, 61-04-15.1, 61-04-15.4

N.D. Admin. Code 89-03-02-06 Publication of notice of an application for a change in the purpose of use or to add a point of diversion

Notice of an application or an amendment to an application for a change in the purpose of use or to add a point of diversion must be published in accordance with sections 89-03-01-04 and 89-03-01-05.

History

• History: Amended effective April 1, 1989; April 1, 2000; July 1, 2014; January 1, 2023; April 1, 2026.
• Law Implemented: NDCC 61-04-05, 61-04-15.2, 61-04-15.4

N.D. Admin. Code 89-03-02-07 Filing proof of publication and mailing

Repealed effective April 1, 1989.

N.D. Admin. Code 89-03-02-08 Assignment of a water permit to another person

A request to assign a water permit to another person must be submitted to the department in writing. The transferee or the permitholder may request assignment of the water permit. The application must describe the transferee's interest in the water permit. The department may request additional documentation of the transferee's interest.

January 1, 2023; April 1, 2026.

History

• History: Effective April 1, 1989; amended effective February 1, 1997; April 1, 2000; July 1, 2014;
• Law Implemented: NDCC 61-04-15

N.D. Admin. Code 89-03-02-09 Transfer of a water permit to another parcel

Repealed effective January 1, 2023.

N.D. Admin. Code 89-03-02-10 Change in location of use

No change in location of use of a conditional or perfected water permit will be granted if other appropriators that rely upon the return flows from the permitholder's beneficial use of water would be adversely affected.

History

• History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-01-01(3), 61-04-15

N.D. Admin. Code 89-03-02-11 Increase in pumping rate

A request to increase a permitholder's pumping rate must be made in writing to the department.

The department, before making a decision on the request, will consider what effect the increase has on other appropriators from the water source.

History

• History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-06.2

N.D. Admin. Code 89-03-02-12 Water permit for irrigation - Limitation

The department may increase the number of acres that may be irrigated on the tracts of land specified in a water permit to allow for more efficient operation of an irrigation system. A request for an increase in the number of acres must be evaluated in accordance with subdivisions a through c of subsection 1 of North Dakota Century Code section 61-04-06. Any increase in acreage cannot exceed ten acres or ten percent of the originally approved acreage, whichever is greater.

History

• History: Effective April 1, 1989; amended effective August 1, 1994; July 1, 2014; January 1, 2023.
• Law Implemented: NDCC 61-04-06.2

Chapter 89-03-03 Definitions

N.D. Admin. Code 89-03-03-01 Definitions

The following definitions apply to this article:

1."Department" is defined in North Dakota Century Code section 61-03-01.2.

2."Measuring device" means a flow meter or water meter measuring the quantity and rate of water flowing through a pipe and complying with the flow meter specifications issued by the department.

3."One-mile radius" means the distance of one mile [1.61 kilometers] from a specific point of diversion as listed in a water permit application. Where the point of diversion is listed as a parcel, the one mile [1.61 kilometers] is measured from the exterior boundary of the area contained in the legal description.

4."Point of diversion" is defined in North Dakota Century Code section 61-04-01.1. A point of diversion may be described as a tract of land as described in the public land survey system (PLSS).

5."Reasonably be necessary for the future water requirements of the municipality or the rural water system" means the amount of water estimated to be required thirty years in the future.

The total water quantity a municipality or rural water system may hold under all permits for municipal use may not exceed the quantity the municipality or rural water system can reasonably expect to use thirty years in the future.

6."Return flow" is residual water that is returned to its source or some other source after beneficial use by a permitholder.

7."Stored water" means water temporarily or permanently retained by or in a dam, dike, excavation, or other constructed works.

8."Works" include canals, ditches, pipelines, and other conveyance systems, irrigation facilities, wells, pumps, dams, dikes, reservoirs, and other devices used for the appropriation, storage, and beneficial use of water.

History

• History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
• General Authority: NDCC 61-03-13
• Law Implemented: NDCC 61-04-02, 61-04-05

N.D. Admin. Code 89-03-03-02 Definition of domestic rural use

N.D. Admin. Code 89-03-03-03 Definition of aquaculture

N.D. Admin. Code 89-03-03-04 Definition of reasonably necessary for the future water requirements of a municipality or rural water system . Repealed effective July 1, 2014

N.D. Admin. Code 89-03-03-05 Definition of stored water

Article 89-05 Construction of Dikes

Chapter 89-05-01 Construction of Dikes within the Floodplains of the Red River of the North and the Bois De Sioux Rivers

N.D. Admin. Code 89-05-01-01 Intent

The purpose of this chapter is to provide for the orderly and consistent review of permit applications to construct, relocate, rebuild, or alter agricultural dikes located within the floodplains of the Red River of the North and Bois de Sioux Rivers. The authority to establish this chapter is granted to the department by North Dakota Century Code section 61-16.1-38. Similar rules will be in effect in the state of Minnesota. The two states recognize that establishment of these rules governing the issuance, review, and denial of permits to construct, relocate, rebuild, or alter agricultural dikes along the Red and Bois de Sioux Rivers is but the first step in the exercise of joint control over those activities which could contribute to an increased flood potential of these rivers. The two states further recognize the need to exercise this joint control in a cooperative and coordinated manner because water management decisions which appear logical in a local or statewide context may have negative interstate and international impacts. These rules will also provide a basis for the review of existing unauthorized agricultural dikes along the Red River and Bois de Sioux River.

History

• General Authority: NDCC 61-02-11, 61-03-13
• Law Implemented: NDCC 61-02-24, 61-16.1-38

N.D. Admin. Code 89-05-01-02 Application of chapter

This chapter governs the review, issuance, and denial of permits to construct, relocate, rebuild, or alter agricultural dikes located within the floodplains of the Red River of the North and the Bois de Sioux River. Floodplain areas of the Red River of the North are defined in Appendix 0, Volume 8 of the Souris-Red-Rainy Basins Comprehensive Study of "Red River of the North Main Stem Regional Floodplain Area" and the floodplain of the Bois de Sioux River is defined by the United States geological survey one percent change of recurrence area flood quadrangles. These criteria apply to dikes constructed on tributaries within the floodplains of the Red River or the Bois de Sioux River.

N.D. Admin. Code 89-05-01-03 Definitions

Unless the context otherwise requires, the following definitions apply:

1."Board of commissioners" means the board of commissioners of a water management district.

2."Boundary rivers" means the Red River of the North and the Bois de Sioux River as they form a natural boundary between the states of Minnesota and North Dakota.

3."Department" is defined in North Dakota Century Code section 61-03-01.2.

4."Dike" means an embankment constructed of earth or other suitable materials to protect agricultural lands from floods which result from overflow of watercourses or from diffused surface waters.

5."Director" is defined in North Dakota Century Code section 61-03-01.2.

6."District" means water resource district.

7."Farmstead" means a farm dwelling or associated farm buildings.

8."Flood frequency" means the average frequency, statistically determined, for which it is expected that a specific flood stage or discharge may be equaled or exceeded. This frequency is usually expressed as having a probability of occurring, on the average, once within a specified number of years.

9."Floodwaters" means those waters which temporarily inundate normally dry areas adjoining a watercourse. This inundation results from an overflow of the watercourse caused by excessive amounts of rainfall or snowmelt which exceed its capacity.

10."Person" means a human being, firm, partnership, association, corporation, or any other type of private legal relationship, and any governmental organization, which includes, but is not limited to, any agency of the United States, a state agency, and any political subdivision of the state.

11."Ring dike" means an embankment constructed of earth or other suitable materials for the

purpose of enclosing a farmstead.

12."Watershed" means the area draining into, or contributing water to, the Red River of the North or the Bois de Sioux River.

N.D. Admin. Code 89-05-01-04 Severability

The provisions of this chapter shall be severable, and the invalidity of any section or subsection shall not make void any other section or subsection, or any other part.

N.D. Admin. Code 89-05-01-05 Design criteria

1.Dikes shall be constructed so as not to cause an increase in the elevation of floodwaters which will result in an unreasonable increase in flood damages due to the displacement of floodwaters. However, in no event shall dikes, based on total encroachment, increase the elevation of floodwater of the one hundred year frequency flood of more than one-half foot [15.24 centimeters].

2.Calculation of the effects of proposed dikes shall be based on the dikes being located on both sides of the Red and Bois de Sioux Rivers so as not to cause more than one-half of the maximum allowable stage increase. If mutual agreement has been reached between persons on both sides of the river, dikes on one side of the river may utilize the entire increase in flood stage elevation allowable.

3.Dike dimensions. Dike top widths shall not be less than six feet [1.83 meters]. Side slopes shall not be steeper than 3:1, except whose slope stability analysis and slope erosion control can justify steeper slopes. No organic soil or material shall be allowed in the foundation of the fill of dikes.

4.Vegetative cover and riprap. A protective cover of grasses shall be established on all exposed surfaces of the dike. Riprap shall be used where required for control of erosion.

5.Interior drainage. Dikes shall have provisions for interior drainage. The design shall include plans to handle the discharge from the drainage area based on drainage design requirements for the local area.

N.D. Admin. Code 89-05-01-06 Dike design data

The department shall provide the discharges and corresponding elevations of various frequency floods (and other available flood data), in relation to known historic floods, for use in dike design.

N.D. Admin. Code 89-05-01-07 Dikes across natural waterways and legal drains

Dikes shall not be constructed across tributaries to the Red River and the Bois de Sioux River without proper authorization from the appropriate agency. Dike setbacks along tributary waterways to the Red River and the Bois de Sioux River, within the area defined in section 89-05-01-02, shall meet the criteria as stated in section 89-05-01-04. Dikes constructed across special assessment drains or public ditch systems constructed pursuant to North Dakota Century Code title 61 shall require the approval of the appropriate water resource district.

N.D. Admin. Code 89-05-01-08 Farmstead diking

Within an existing dike system, ring dikes around individual farmsteads shall not require permits if they do not include tiebacks to existing roadways or dikes. Ring dikes with tiebacks shall be considered

part of the overall dike system and will be required to secure diking permits. This waiver of a permit requirement for ring dikes from the director does not relieve the necessity of appropriate authorization for ring dikes from the local water resource district in accordance with the North Dakota Century Code.

N.D. Admin. Code 89-05-01-09 Application for permit

All applications submitted by the owner to construct, to relocate, rebuild, or alter dikes shall be made on forms provided by the department and shall be accompanied by two complete sets of plans or specifications. Such plans and specifications shall include the following:

1.A general location map with a minimum scale of one inch to eight hundred feet [2.54 centimeters to 243.84 meters] showing the following:

a.Location of the dike with respect to the watercourse.

b.Location of field inlets to provide for internal drainage.

c.Location of legal drains and natural channels tributary to the main river channel.

2.Detailed cross sections of the dike showing elevations, in relation to mean sea level, and side slopes.

3.The department may require any other additional information that the department deems necessary.

After review of the information required above and other available data, the department shall determine the location and number of required cross sections of the river channel and overland areas. These locations shall be provided to the applicant who shall then provide the required cross-section data. The applicant shall undertake and agree to pay the expenses incurred in securing these cross sections.

N.D. Admin. Code 89-05-01-10 Joint permit applications

Joint permit applications involving two or more landowners or a permit application on behalf of two or more landowners will be accepted by the department. These permit applications, taken together, must meet the requirements of this chapter.

N.D. Admin. Code 89-05-01-11 Referral to water resource district

Within forty-five days after the receipt of a permit application, the department shall make recommendations and suggestions concerning the propriety and efficiency of the proposal to the water resource district within which the contemplated project is located. The water resource district shall, in accordance with this chapter, review the application and impose any conditions for the orderly management of water resources it deems necessary. The permit application shall then be returned to the director for final approval. Unless an exception is granted pursuant to section 89-05-01-15, the director and the water resource district shall not allow the construction of a dike not in conformance with this chapter nor which is unsafe, improper, or dangerous, and may order such changes as necessary for safety or the protection of property.

N.D. Admin. Code 89-05-01-12 Issuance of permits

Dike permits will be issued only upon concurrent approval of the director and the appropriate water resource district. Approval of the permit will in no way relieve the owner from damages which may be caused or created by construction of the dikes.

N.D. Admin. Code 89-05-01-13 Joint administration

A copy of each application and accompanying information for a permit shall be forwarded by the department to the department of natural resources of Minnesota for comment and recommendation before final approval is granted. If comments are not received within thirty days, the department shall process the permit without such comments.

History

• General Authority: NDCC 61-02-11, 61-03-13
• Law Implemented: NDCC 61-02-24, 61-16.1-38

N.D. Admin. Code 89-05-01-14 Permit revocation

The applicant shall provide certification by a registered land surveyor, engineer, or other qualified person or agency that the finished dike elevations are not higher than those approved by the director.

The permit will be revoked for failure to provide this certification. The permit may be revoked for failure to construct the dike in accordance with the plans and specifications submitted. Structural alteration of the dike without permission of the director and the appropriate water resource district will also result in revocation of the permit.

N.D. Admin. Code 89-05-01-15 Dike reconstruction or rebuilding

Reconstruction or rebuilding of any authorized dikes shall require notification to the department and recertification upon completion in accordance with section 89-05-01-14.

N.D. Admin. Code 89-05-01-16 Exception to the criteria

Under special circumstances, exceptions to the dike criteria may be authorized on an individual

basis but they must have the concurrent approval of the director, local water resource board in North Dakota, Minnesota department of natural resources, and local watershed district in Minnesota. Factors that will be considered, among other things, shall be increase in flood stage, increase of stage at existing city dikes, increase in stream velocity, and environmental effects. In addition, the director will authorize the utilization of farmsteads, property lines, and existing roads for dike construction, consistent with this chapter.

N.D. Admin. Code 89-05-01-17 Application to existing dikes

This chapter applies to all unauthorized dikes constructed in the past for the protection of those agricultural lands located within the floodplains of the Red River of the North and the Bois de Sioux, as defined in section 89-05-01-02. Exceptions are farmstead dikes which meet the provisions of section 89-05-01-08.

Article 89-06 Funding from the Resources Trust Fund

Chapter 89-06-01 Funding from the Resources Trust Fund

N.D. Admin. Code 89-06-01-01 Definitions

The following definitions apply to this article:

1."Applicant" means the party submitting a proposal.

2."Commission" is defined in North Dakota Century Code section 61-02-02.

3."Department" is defined in North Dakota Century Code section 61-03-01.2.

4."Proposal" means an application for a water-related project or a water-related project submitted to the department for financial assistance from the resources trust fund.

History

• History: Effective June 1, 1987; amended effective July 1, 2014; January 1, 2023.
• General Authority: NDCC 61-02-11, 61-02-14
• Law Implemented: NDCC 57-51.1-07.1, 61-02-14

N.D. Admin. Code 89-06-01-02 Initial review

The commission will make an initial review of a proposal to decide whether the project or study is eligible for funding from the resources trust fund.

1.Information required for the review of the project or study. An applicant must submit, as applicable:

a.A description of the purpose and goals.

b.The area where the proposed project is to be physically located or the study is to be undertaken.

c.The area to be served.

d.Maps, diagrams, and any engineering plans or specifications already completed.

e.The approximate cost of carrying out the proposal.

f.An estimate of any revenue the project is expected to generate.

g.The amount of funding sought from the resources trust fund and the amount the applicant intends to contribute to carry out the proposal.

h.The results of all efforts made to secure funds from sources other than the resources trust fund.

i.An explanation why assistance from the resources trust fund is necessary.

j.An explanation how the project or study relates to any master plans of water resource districts affected.

k.A preliminary report on the engineering feasibility of the project.

l.A general discussion of any objections to the proposal.

m.Other information the applicant believes pertinent or the commission requests.

n.A general explanation of all alternatives considered and whether an alternative project or study can satisfy the objectives.

2.The commission's decision upon initial review. After initial review, the commission may decide:

a.To provide cost-share assistance in consideration of the commission's cost-share policy.

b.The information provided is inadequate to review the proposal and may request additional information from the applicant or obtain more information itself.

c.A study of the proposal should be undertaken and may order the applicant to conduct the study or may conduct the study itself.

History

• History: Effective June 1, 1987; amended effective July 1, 2014.
• General Authority: NDCC 61-02-14
• Law Implemented: NDCC 57-51.1-07.1

N.D. Admin. Code 89-06-01-03 Study of the proposal

Repealed effective July 1, 2014.

Article 89-07 Atmospheric Resource Board

Chapter 89-07-01 Practice and Procedure [Repealed]

N.D. Admin. Code 89-07-01 Practice and Procedure [Repealed]

ARTICLE 89-07

ATMOSPHERIC RESOURCE BOARD

Chapter 89-07-01Practice and Procedure [Repealed] 89-07-02Weather Modification Operations

CHAPTER 89-07-01

PRACTICE AND PROCEDURE [Repealed effective October 1, 1994]

Chapter 89-07-02 Weather Modification Operations

N.D. Admin. Code 89-07-02-01 General provisions

This chapter applies to any weather modification operations conducted in North Dakota. This

chapter must be applied in conjunction with North Dakota Century Code chapter 61-04.1.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.
• Law Implemented: NDCC 61-04.1-02, 61-04.1-08

N.D. Admin. Code 89-07-02-02 Definitions

The following definitions apply to this chapter and North Dakota Century Code chapter 61-04.1:

1."Applicant" means any person who applies for a professional weather modification license or permit.

2."Department" is defined in North Dakota Century Code section 61-03-01.2.

3."License" means a weather modification license.

4."Licensee" means a person to whom a weather modification license has been issued.

5."Operations area" means a geographic area where weather modification operations are conducted.

6."Permit" means a weather modification permit.

7."Permittee" means a person to whom a weather modification permit has been issued.

8."Target area" means an area where the effects of weather modification are desired.

9."Weather modification apparatus" means any device used to dispense any chemical material used to modify any weather condition.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.
• Law Implemented: NDCC 61-04.1-03

N.D. Admin. Code 89-07-02-03 Administration

Repealed effective April 1, 2026.

N.D. Admin. Code 89-07-02-04 Exempt activities

A person intending to conduct exempt activities under North Dakota Century Code section 61-04.1-12 shall furnish notice of such intention to the department at least thirty days before the time such activities are to begin. Notice must consist of the following information and such other information as the department deems necessary:

1.The name and address of the person giving notice.

2.The name and address of the person who will conduct the activity.

3.A description of the procedures to be used in the operation or the research and development.

4.A description of the object of the activity.

5.The legal description and a map showing the operations area and target area, if any.

6.The approximate starting date of the activity and its anticipated duration.

7.A description of the equipment to be used in conducting the activity.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.
• General Authority: NDCC 61-03-13, 61-04.1-08, 61-04.1-12
• Law Implemented: NDCC 61-04.1-12

N.D. Admin. Code 89-07-02-05 Approval of exempt activities

Weather modification activity intended to be conducted under North Dakota Century Code section 61-04.1-12 may not begin without approval of the department, if the activity is to be conducted outside with weather modification apparatus. The department may only approve activities that provide for the protection of the health, safety, and welfare of people who may be affected by such activities and that otherwise comply with North Dakota Century Code section 61-04.1-12.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.
• Law Implemented: NDCC 61-04.1-12

N.D. Admin. Code 89-07-02-06 Field presence required

A person intending to conduct operations in the state shall designate to the department, on forms furnished by the department, at least one natural person who must at all times be physically present during all operations for which a permit is required and who is the contractor's immediate point of contact in the field. The designated individual must be fully apprised of the status of the contractor's project equipment and personnel at all times and must coordinate the contractor's field activities.

History

• History: Effective November 1, 1988; amended effective February 1, 1999; July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-07-02-07 Criteria for issuance of license

1.The competence of any applicant to engage in weather modification operations must be demonstrated to the department under North Dakota Century Code section 61-04.1-14.

Applicants shall show that any natural person designated by the applicant who will be in the full-time employment of the applicant during the project period and who will oversee the applicant's actions during the project has:

a.A minimum of one year of field experience in the management and control of weather modification operations or research; and

b.One of the following requirements:

(1)Four additional years' experience in weather modification operations or research;

(2)A degree in mathematics, engineering, or the physical sciences, plus two years' additional experience in weather modification operations or research;

(3)A degree in meteorology; or (4)A degree in mathematics, engineering, or the physical sciences, which includes at least twenty-five semester hours of coursework in meteorology.

2.In determining competency, the department may also consider any other items set forth in a license application under section 89-07-02-08.

3.At least one such natural person designated by the applicant and licensed by the department must be available for immediate consultation by the department, at a location made known to the department by the applicant, at all times while the project is ongoing.

History

• History: Effective November 1, 1988; amended effective February 1, 1999; July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-07-02-08 Application procedure

An applicant for a license shall apply to the department on forms furnished by the department. The forms may require relevant information about the knowledge and experience of the applicant and the natural person designated under section 89-07-02-06 and must include:

1.Educational background, at the college and graduate level, of both the natural person designated by the applicant and the other employees of the applicant, including the dates of attendance and graduation; the major and minor subjects studied, including the number of semester hours of meteorological coursework; the degrees received; and the titles of any thesis or dissertation.

2.Experience in weather modification or related activities of both the natural person designated by the applicant and the other employees of the applicant. Attention must be given to experience with reference to meteorological conditions typical of North Dakota. The applicant shall list the dates of each position held by the natural person designated under section 89-07-02-06, the title of position (indicate whether it was of subprofessional or professional level), the name and address of the employer, a description of the work done (indicate both the magnitude and complexity of the work and the duties and degree of responsibility for the work), and the name and address of the supervisor.

3.Scientific or engineering society affiliations of the natural person designated by the applicant and the grade of membership in and certification by each society.

4.Publications, patents, and reports of the natural person designated by the applicant.

5.Three references who will attest to the natural person's character, knowledge, and experience.

6.A list of all jurisdictions where the applicant has previously filed an application for a professional weather modification license. The result of the applications must be indicated.

7.Indication whether a professional weather modification license issued to the applicant in any jurisdiction has ever been suspended or revoked or whether there has been refusal to renew such a license by any jurisdiction. The circumstances must be explained in detail.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-07-02-09 Procedure for issuance

The department shall evaluate the applications, including responses from any references given by the applicant. On the basis of all information the department, within thirty days of receipt of an application, shall determine whether the natural person designated by the license applicant under

section 89-07-02-06 meets the education and experience criteria established by section 89-07-02-07 and whether the natural person and the applicant possess the knowledge and experience necessary to engage in weather modification operations. The department shall issue a license to the applicant who satisfies the requirements of this chapter and North Dakota Century Code section 61-04.1-14. If an applicant for a license or the natural person designated by the applicant does not satisfy the requirements, the department shall deny the license.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-07-02-10 Renewal of license

Forty-five days before expiration of licenses, the department shall provide license application forms to all licensees and request each licensee to complete the form and file the original with the department. The department shall evaluate the available data about the licensee and the natural person, designated by the license applicant under section 89-07-02-06, and shall issue a renewal license within thirty days of receipt of the application to each applicant who pays the license fee established by subsection 1 of North Dakota Century Code section 61-04.1-14 and who has the qualifications necessary for issuance of an original license. The department shall deny a renewal license within thirty days of receipt of the application of each applicant who does not pay the renewal fee, who does not possess the qualifications necessary for issuance of an original license, or who does not designate a natural person, under section 89-07-02-06, who satisfies the requirements of section 89-07-02-07.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-07-02-11 Responsibility of controller

The natural person designated by the license applicant under section 89-07-02-06 is deemed by the department to be in control of and primarily responsible for operations conducted under the terms of any permit. However, nothing in this section may be construed to prevent appropriate enforcement of any regulation, limitation, permit condition, or order against either the permittee or licensee, whether or not such licensee is a natural person.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.
• Law Implemented: NDCC 61-04.1-18, 61-04.1-37

N.D. Admin. Code 89-07-02-12 Suspension, revocation, refusal to renew a license

In addition to the reasons cited in North Dakota Century Code section 61-04.1-15, the department may suspend, revoke, or refuse to renew a license for violation of any permit.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.
• Law Implemented: NDCC 61-04.1-14, 61-04.1-15

N.D. Admin. Code 89-07-02-13 Restoration of license

At any time after the suspension or revocation of a license or after refusal to renew a license, the department may restore the license to the licensee or renew it upon a finding that the licensee has met the requirements for issuance of an original license.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-07-02-14 Application for permit

Application for a weather modification permit must be made on forms furnished by the department.

Every applicant must submit a properly executed application to the department. The application may contain information the department deems necessary, and must include the following information:

1.Name and address of the applicant.

2.Whether a weather modification operational permit issued to the applicant in any jurisdiction has ever been suspended or revoked or whether there has been refusal to renew a permit by any jurisdiction. The circumstances must be explained in detail.

3.If the applicant is a corporation, whether it is licensed to do business in North Dakota.

4.Whether a license has been issued under North Dakota Century Code section 61-04.1-14, and if so, the names, addresses, and professional license numbers of the controllers.

5.Whether professional weather modification licenses issued to the license applicant in any jurisdiction have ever been suspended or revoked or whether there has been refusal to renew a license by any jurisdiction. The circumstances must be explained in detail.

6.Whether proof of financial responsibility has been furnished under section 89-07-02-22 and North Dakota Century Code section 61-04.1-19.

7.If the operation will be conducted under a contract, the value of the contract.

8.If the operation will not be conducted under a contract, an estimate of the costs of the operation and information as to how the estimate was made.

9.Whether the applicant has paid the application fee.

10.Whether the applicant has North Dakota workforce safety and insurance coverage.

11.A copy of any promotional and advertising material used in connection with negotiations for the contract, if any.

12.Whether the applicant has furnished a performance bond, as required by subsection 3 of

section 89-07-02-26.

13.Whether the applicant has furnished the bid bond.

14.Whether the applicant has registered with the North Dakota aeronautics commission all aircraft to be used in the operation for which the permit is sought.

15.A complete and detailed operational plan for the operation that includes:

a.The nature and object of the operation.

b.The legal description and a map showing the operations area and the target area.

c.The approximate starting date of the operation and its anticipated duration.

d.The kind of seeding agents intended for use and the anticipated rate of their use.

e.A list of equipment that will be used and the methods of seeding for which they will be used.

f.An emergency shutdown procedure that states conditions under which operations will be suspended because of possible danger to the public health, safety, and welfare or to the environment.

g.The means by which the operation plans will be implemented and carried out such as:

(1)The location of the main operational office and any other offices used in connection with the operation;

(2)The location of such ground equipment as seeding generators, radar, and evaluation instrumentation;

(3)The number and kinds of aircraft that will be used;

(4)The extent to which weather data will be made available to the licensees; and (5)Other personnel carrying out the project.

h.How conduct of the operation will interact with or affect other weather modification operations.

16.Additional information that will assist the department in deciding whether to issue the permit.

April 1, 2026.

History

• History: Effective November 1, 1988; amended effective July 1, 2006; July 1, 2014; July 1, 2024;

N.D. Admin. Code 89-07-02-15 Procedure for issuance

1.The department shall give notice of its consideration of an application under North Dakota Century Code section 61-04.1-17. Notice must be given once a week for two consecutive weeks. The notice must:

a.Describe the primary target area.

b.Describe the operations area.

c.Specify the period of operation, including starting and ending dates.

d.Describe the general method of operation.

e.Describe the intended effect of the operation.

f.State the name of the proposed permittee.

2.The department shall allow twenty days for public comment, under North Dakota Century Code section 61-04.1-17, from the date of the last publication of the notice. Any hearing held upon objection received by the department must be held upon at least ten days' notice in the county newspaper where notice of consideration of the application was published. At the hearing, the department shall make a brief record of testimony received, and shall consider all such testimony in its decision on the permit application.

3.The department shall take final action on all applications for permits for which notice of consideration was published within forty-five days of the close of the public comment period.

The department shall consider all testimony received at any hearing under North Dakota Century Code section 61-04.1-17. The department may issue a permit only if it determines that the requirements of subsection 2 of North Dakota Century Code section 61-04.1-16 have been met.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.
• Law Implemented: NDCC 61-04.1-16, 61-04.1-17

N.D. Admin. Code 89-07-02-16 Permit form

A permit must set forth the permit number, effective period of the permit, name of the permittee, name of the licensee and the license number, location of the operation, and other information, terms, or conditions the department deems appropriate.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-07-02-17 Permit conditions

The department may attach conditions to any permit as it deems appropriate, including any conditions concerning method and time of operation, target and operation areas, safety precautions, and recordkeeping. Permittee shall submit an operations plan that includes the types of seeding agents to be used, the methods and equipment to be employed in seeding operations, and the emergency shutdown procedures, including the conditions under which operations will be suspended. Violation of any permit may result in permit revocation, suspension, or other appropriate enforcement action by the department.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-07-02-18 Permit expiration

Permits that have expired under North Dakota Century Code section 61-04.1-16 are nonrenewable.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.
• Law Implemented: NDCC 61-04.1-11, 61-04.1-16

N.D. Admin. Code 89-07-02-19 Suspension - Revocation - Modification

In addition to the reasons cited in North Dakota Century Code section 61-04.1-18, the department may suspend, revoke, or modify any permit or any provision or condition of a permit if it appears to the department the permittee has violated the North Dakota Century Code or the terms or conditions of any permit held by the permittee.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-07-02-20 Automatic suspension of permit

A permit issued under this chapter is automatically suspended if the person's weather modification license expires or is suspended, revoked, or not renewed by the department. In the case of a permit issued to a corporation, partnership, or other business association, if the natural person designated as being in control of the operation in the business association's application for a weather modification license becomes incapacitated, leaves the business association's employment, or is in any way unable to continue in control of the operation, automatic suspension of the permit must result. A permit of a business association suspended under such circumstances may be reinstated by the nomination of replacement personnel under section 89-07-02-08.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-07-02-21 Restoration of permit

At any time after the suspension, revocation, or modification of a permit, the department may restore it to the permittee or delete any modification of the permit upon a finding that the requirements for issuance of an original permit have been met by the permittee or that the conditions requiring modification no longer exist.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-07-02-22 Proof of financial responsibility

Proof of financial responsibility is made by showing to the satisfaction of the department that the permittee has the ability to respond to liability that might reasonably result from the operation for which the permit is sought. Proof of financial responsibility may be shown by any of the following:

1.Presentation to the department or proof of purchase of a prepaid noncancelable insurance policy or a corporate surety bond, issued by a company against whom service of legal process may be made in North Dakota, against liabilities in an amount five times the value of an operation conducted under contract or in an amount five times the estimated costs of an operation not conducted under contract.

2.Depositing with the department cash or negotiable securities in an amount five times the value of an operation conducted under contract or in an amount five times the estimated costs of an operation not conducted under contract.

3.Any other manner approved by the department.

History

• History: Effective November 1, 1988; amended effective July 1, 2014; April 1, 2026.
• Law Implemented: NDCC 61-04.1-16, 61-04.1-19

N.D. Admin. Code 89-07-02-23 Records

1.A permittee shall retain a daily log of weather modification activities for each unit of weather modification apparatus used during an operation, including:

a.Date of the weather modification activity.

b.Each aircraft flight track and location of each radar unit during each modification mission.

Maps may be used.

c.Local time when modification activity began and ended. For intermittent operations, the beginning and ending time of the total sequence are acceptable.

d.Duration of operation of each unit of weather modification apparatus, in hours and minutes.

e.Description of type of modification agents used.

f.Rate of dispersal of agent during the period of actual operation of weather modification apparatus, by hour or other appropriate time period.

g.Total amount of modification agent used. If more than one agent was used, report total for each type separately.

h.Local time when any radar monitoring operations were turned on and turned off.

i.Type of clouds modified, that is, whether they were stratiform, isolated cumuliform, organized cumuliform, or other types of clouds.

j.Remarks indicating operational problems, including equipment failure, weather conditions not conducive to successful performance of the operation, or personnel problems.

2.Monthly totals must be kept on the basis of the daily logs, listing the total:

a.Days during month in which operation conducted.

b.Time of operation.

c.Amount of each kind of agent used.

d.Average rate of dispersal of each kind of agent used.

e.Days of each type of operation.

f.Duration of operation of each unit of weather modification apparatus, in hours and minutes.

3.A permittee shall keep a roster of the names and North Dakota addresses of all employees participating in the state on an operation.

4.Duly authorized agents of the department have the authority to enter and inspect any equipment and to inspect or copy any records required by this section.

5.People conducting weather modification activities exempted by the department under North Dakota Century Code section 61-04.1-12 shall record and maintain all of the records required of any permittee by this section.

History

• History: Effective November 1, 1988; amended effective July 1, 2006; July 1, 2014; April 1, 2026.
• Law Implemented: NDCC 61-04.1-08, 61-04.1-16

N.D. Admin. Code 89-07-02-24 Reports

1.Within sixty days after final completion of any operation, each permittee shall file with the department a final report on the operation that must include:

a.Copies of the daily logs prepared under subsection 1 of section 89-07-02-23, copies of the monthly totals for the entire operational period from the monthly summary records prepared under subsection 2 of section 89-07-02-23, and a narrative summary of permittee activities during the operational period.

b.A copy of the federal final activity report form filed with the national oceanic and atmospheric administration under the rules adopted under Public Law 92-205 [85 Stat. 735].

c.A narrative account of the manner in which the operation did not conform to the operational plan filed under subsections 1 through 16 of section 89-07-02-14.

2.The department may require people operating weather modification activities exempted under sections 89-07-02-04 and 89-07-02-05, who have been required to keep records under subsection 5 of section 89-07-02-23, to file any part of the records with the department.

History

• History: Effective November 1, 1988; amended effective July 1, 2006; July 1, 2014; April 1, 2026.
• Law Implemented: NDCC 61-04.1-12, 61-04.1-16

N.D. Admin. Code 89-07-02-25 Bid procedure

Repealed effective July 1, 2014.

N.D. Admin. Code 89-07-02-26 Award of contracts

1.A bid may be rejected by the department on the basis of technical inadequacy or other failure to comply with the specifications included in the request for bids.

2.Before the department awards any contract, it shall require the contractor to furnish a surety bond for the faithful performance of the contract in an amount up to twenty-five percent of the contract price, conditioned that the contractor and the contractor's agents shall in all respects faithfully perform all weather modification contracts undertaken with the department and shall comply with North Dakota Century Code chapter 61-04.1, this chapter, and the contract between the department and the contractor. If the contract involves the erection, repair, or alteration of any public improvement, the surety bond must be in the full amount of the contract price.

History

• History: Effective November 1, 1988; amended effective July 1, 2006; July 1, 2014; April 1, 2026.
• Law Implemented: NDCC 44-08-01, 61-04.1-33, 61-04.1-34

Article 89-08 Dams, Dikes, and Other Devices

Chapter 89-08-01 Definitions

N.D. Admin. Code 89-08-01-01 Definitions

The following definitions apply in this article:

1."Agricultural dike" means a dike capable of protecting land used for agriculture or similar purposes.

2."Appurtenant works" means all works incident or attached to a dam, dike, or other device, including:

a.A spillway, either in the dam or separate from it;

b.The reservoir and its rim;

c.A low-level outlet; and

d.A water conduit, such as a tunnel, pipeline, or penstock, either through the dam, dike, or other device or their abutments.

3."Capable of protecting" means flood-risk reduction to land, structures, or public infrastructure as the result of a dike.

4."Construction" or "construct" means any activity for which a permit is required by North Dakota Century Code section 61-16.1-38, including construction, alteration, enlargement, or modification of a dam, dike, or other device.

5."Dam" means any barrier, including any appurtenant works, constructed across a watercourse or an area that drains naturally to impound or attenuate the flow of water. All structures necessary to impound a single body of water are considered a single dam.

6."Department" is defined in North Dakota Century Code section 61-03-01.2.

7."Dike" means any artificial structures, including an embankment, floodwall, levee, or any appurtenant works, constructed with the primary intent to divert surface water for real or personal property protection or to otherwise provide storm or flood-risk reduction resulting from flooding due to seasonally high water or precipitation.

8."Director" is defined in North Dakota Century Code section 61-03-01.2.

9."Diversion" means any open channel, culvert, or ditch constructed to reroute a watercourse as defined by North Dakota Century Code section 61-01-06.

10."Embankment" means a structure created by an artificial deposit of material upon the natural surface of the land that is designed to act as a water control device, support roads or railways, or for other similar purposes.

11."Engineer" means a person who has been duly registered and licensed as an engineer by the North Dakota state board of registration for professional engineers and land surveyors.

12."Farmstead" means an individual rural or farm property including a single dwelling or associated buildings, and up to ten acres [4.05 hectares] of land.

13."Farmstead ring dike" means a dike capable of protecting only a farmstead.

14."Height" means the maximum vertical distance from the stream channel bottom or lowest elevation of a naturally draining area to the top of dam.

15."High-hazard dam" means a dam with high-hazard potential where failure or misoperation will probably cause loss of human life.

16."Holding pond, lagoon, or dugout" means any artificial, hydraulically disconnected structure, including any appurtenant works, constructed to store water.

17."Inspection" means a visual or mechanical check, a measurement, a boring, or any other method necessary for determination of the adequacy of construction techniques, conformity of work with approved plans and specifications, or the safety and operating performance of a dam, dike, or other device.

18."Low-hazard dam" means a dam with low-hazard potential where failure or misoperation results in no probable loss of human life and low economic losses.

19."Medium-hazard dam" means a dam with medium-hazard potential where failure or misoperation results in no probable loss of human life but can cause economic loss, disruption of lifeline facilities, or can impact other concerns.

20."Other device" means a water control structure, other than a dam or dike, including diversions and holding ponds, lagoons, or dugouts.

21."Owner" means any person who owns, controls, operates, maintains, manages, or proposes to construct a dam, dike, or other device. For the purpose of a construction permit application, "owner" means the person who owns the property or interest in property where the dam, dike, or other device will be built.

22."Significant-hazard dam" means the same as "medium-hazard dam" and may be used interchangeably.

23."Top of dam" means the top of the settled embankment or the elevation of the uppermost surface of a nonembankment dam, excluding accessory features, such as railings.

24."Unsafe dam, dike, or other device" means any such structure that threatens harm to life or property or is improperly maintained.

History

• History: Effective November 1, 1989; amended effective January 1, 2015; January 1, 2023; July 1, 2024.
• General Authority: NDCC 61-03-13
• Law Implemented: NDCC 61-16.1-38

N.D. Admin. Code 89-08-01-02 Definition of unsafe dam, dike, or other device

Repealed effective January 1, 2015.

Chapter 89-08-02 Construction Permits

N.D. Admin. Code 89-08-02-01 Determining if a permit is required

1.The impounding capacity of a dam is calculated based upon the elevation at the top of dam.

Storage below the existing adjacent ground surface is generally excluded from the capacity of a holding pond, lagoon, or dugout.

2.The area protected by a dike is calculated based upon the area protected as measured from the effective top of dike.

3.The diverting capacity of a diversion is calculated based upon the runoff from the National Oceanic and Atmospheric Administration Atlas 14 twenty-five year, twenty-four hour, precipitation event.

4.No construction can begin until a construction permit is obtained.

The provisions of North Dakota Century Code section 61-16.1-38 do not apply to the following works with the sole intent to provide an opening to permit water flow:

1.Highway, street, or road stream-crossings;

2.Private driveway culverts;

3.Approach-crossing culverts or bridges; and

4.Railroad-crossing culverts or bridges.

History

• History: Effective November 1, 1989; amended effective April 1, 2004; January 1, 2015; January 1, 2023; July 1, 2024. 89-08-02-01.1. Exceptions to the need for a permit.
• History: Effective July 1, 2024.

N.D. Admin. Code 89-08-02-02 Initial review - Contents of application

1.The department has up to forty-five days to complete an initial review of the application and its contents. The initial review must determine what type of construction permit is required and if the application is complete.

2.The following information is required by the department in order for a construction permit application to be deemed complete:

a.A completed application form;

b.Plans and specifications as stipulated by the department;

c.Evidence establishing a property right or easement for the properties that will be affected by the construction of the dam, dike, or other device; and

d.Any additional information required by the department.

3.If the application is deemed complete, the department shall forward the application to the water resource district's board within which the contemplated project is located within the forty-five day initial review period. If the water resource district is the applicant, the application must be processed under section 89-08-02-02.1 without soliciting water resource board changes, conditions, or modifications. If the applicant submits a statement of support of the project design from the board to the department with its application, the requirement to receive approval from the water resource board is considered met, and the department shall begin its review under section 89-08-02-02.1.

4.If the application is deemed incomplete, the department shall notify the applicant in writing that the application is deemed incomplete and detail what information is missing. Applicants are not restricted from submitting a new application for department consideration under this

section.

5.Applications are subject to department requirements at the time the application is submitted to the department.

January 1, 2023; July 1, 2024; April 1, 2026. 89-08-02-02.1. Department review.

1.The department shall begin its department review upon receipt of the board's suggested changes, conditions, or modifications to the application. If the board fails to send suggested changes, conditions, or modifications to the department within forty-five days, the board is deemed to have no changes, conditions, or modifications to make, and the department shall begin its department review.

2.The department has up to ninety days to review and approve or deny the application from the time the most recent application amendment detailed under section 89-08-02-02.2 is received and subject to department and applicant coordination detailed in section 89-08-02-02.3. 89-08-02-02.2. Application amendments.

1.If an applicant wishes to make a change to the applicant's application after the application has been submitted to the department and without an identified deficiency by the department, the applicant shall withdraw the application and submit a new application.

2.The applicant may amend the application to address deficiencies identified by the department as a part of the department review under section 89-08-02-02.1. The department shall notify the applicant of the deficiency in writing, and the department shall cease its review of the application upon notification to the applicant that a deficiency has been identified. The applicant has up to ninety days from the notification to make any necessary amendments to the application to address the deficiency. This timeline may be extended in consultation with the department. If the department does not receive an application amendment or extension request within ninety days, the application is denied. The department has up to ninety days to review and approve or deny the application from the receipt of the most recent amendment.

All amended applications are subject to department review under section 89-08-02-02.1. 89-08-02-02.3. Department and applicant coordination.

1.If the department needs further information or support materials from the applicant during the department review, the department review shall cease and the applicant must be notified in writing of the department's need for information or additional support materials.

2.The applicant has up to ninety days from the notification by the department to provide the requested information or materials. This timeline may be extended in consultation with the department.

3.If the department does not receive the requested information, materials, or extension request within ninety days, the application is denied.

4.The department has up to ninety days to review and approve or deny the application from the receipt of the most recently requested information or materials from the applicant. 89-08-02-02.4. Extension of department review.

In unique or complex situations, the department and applicant may agree to suspend the ninety-day timeline requirements detailed in this chapter.

History

• History: Effective November 1, 1989; amended effective June 1, 1998; April 1, 2004; January 1, 2015;

N.D. Admin. Code 89-08-02-03 Permit does not absolve liability for damages

The receipt of a permit, including a permit for emergency construction, does not relieve an applicant from liability resulting from any activity conducted under the permit.

Construction may not begin until a construction permit is obtained. Construction must be completed and the department must be notified of completion in writing within the period specified by the department on the permit, beginning from the date of final permit approval. The completion period does not begin until any appeal is complete.

If the completion period expires before construction is complete, the permit recipient may make a written request to the department for a one-year extension. Only two extensions may be granted. All requests for extensions must be made at least sixty days before the permit expiration date and must specifically state why construction has not been completed.

History

• History: Effective June 1, 1998; amended effective January 1, 2015. 89-08-02-03.1. Time to complete construction of structure.
• History: Effective January 1, 2015, amended effective January 1, 2023. 89-08-02-03.2. Extending time to complete construction of structure.

N.D. Admin. Code 89-08-02-04 Emergency construction permits

A completed application for an emergency construction permit must be submitted to the department along with any additional information required by the department. If the director determines an emergency exists, the director may issue an emergency construction permit to construct a dam, dike, or other device capable of impounding, obstructing, or diverting more than fifty acre-feet [61674 cubic meters] of water. An emergency construction permit will expire in twelve months unless extended by the director under section 89-08-02-05.

History

• History: Effective April 1, 2004; amended effective January 1, 2015; January 1, 2023; July 1, 2024.

N.D. Admin. Code 89-08-02-05 Extension of emergency construction permits

The applicant must submit a written request for an extension at least thirty days before the expiration of the emergency construction permit. If it is determined that an emergency still exists, the director may issue a one-time, six-month extension to the permit's expiration date. If an emergency continues to exist after the one-time extension, an applicant may reapply under section 89-08-02-04 for a new emergency construction permit.

N.D. Admin. Code 89-08-02-06 Removal of emergency structures

Once the emergency has ended or upon permit expiration, whichever occurs first, all structures constructed under section 89-08-02-04 must be removed in their entirety and the disturbed area restored to preproject conditions. The applicant must notify the department in writing when the emergency structure has been completely removed.

N.D. Admin. Code 89-08-02-07 As built plans

As a condition on all construction permits, the owner of the dam, dike, or other device will provide the department with "as built" plans within six months after the dam, dike, or other device has been constructed to provide details of the modifications that occurred during construction.

N.D. Admin. Code 89-08-02-08 Operation and maintenance manual

A medium-hazard or high-hazard dam owner shall submit an operation and maintenance manual for the dam and the appurtenant works to the department. The manual must be maintained and updated on a regular basis, and copies of all updates must be submitted to the department. Dam owners shall maintain their structures in an adequate manner.

History

• Law Implemented: NDCC 61-03-21.2

Chapter 89-08-03 Inspections

N.D. Admin. Code 89-08-03-01 Inspections and reports during construction of dams over ten feet [3.05 meters] in height

To protect property and assure safety, the following are conditions to all construction permits for dams over ten feet [3.05 meters] in height:

1.An engineer must be in charge of and responsible for inspections during construction.

2.Inspections during construction must be performed at intervals necessary to ensure conformity with the construction permit and the plans and specifications.

3.The information obtained during each inspection must be documented in a written report. The report will specify any changes necessary under section 89-08-03-03. The inspection reports must be provided to the department upon request.

History

• History: Effective November 1, 1989; amended effective April 1, 2004; January 1, 2015; January 1, 2023.
• Law Implemented: NDCC 61-16.1-38

N.D. Admin. Code 89-08-03-02 Monitoring during construction by the department

The department may monitor any dam, dike, or other device during construction to ensure conformity with the construction permit and the plans and specifications.

History

• History: Effective November 1, 1989; amended effective January 1, 2023.
• Law Implemented: NDCC 61-04-11

N.D. Admin. Code 89-08-03-03 Changes in construction

If the director determines changes in construction are necessary to ensure safety, the director may order the appropriate changes and may order construction be stopped until the changes are made.

History

• History: Effective November 1, 1989; amended effective January 1, 2015; January 1, 2023.
• Law Implemented: NDCC 61-04-11

N.D. Admin. Code 89-08-03-04 Requested inspections

1.Upon receipt of a written complaint that a dam, dike, or other device is unsafe because of its construction, maintenance, or operation, the department will examine the available information and determine if the complaint is justified.

2.If the department determines the complaint is unjustified, the department must notify the complainant in writing of that fact.

3.If the department determines the complaint is justified, the department will complete the necessary inspection and make a determination regarding the structure's safety. If construction is ongoing, all construction activities must cease until the department completes the inspection.

History

• History: Effective November 1, 1989; amended effective January 1, 2015; January 1, 2023.
• Law Implemented: NDCC 61-03-21.1, 61-03-21.2, 61-04-11

N.D. Admin. Code 89-08-03-05 Periodic inspections after construction

The department may require inspection of a dam, dike, or other device as often as necessary after construction to protect property and assure safety.

History

• History: Effective November 1, 1989; amended effective January 1, 2015; January 1, 2023.
• Law Implemented: NDCC 61-04-11, 61-16.1-38

N.D. Admin. Code 89-08-03-06 As built plans

Repealed effective January 1, 2015.

N.D. Admin. Code 89-08-03-07 Access to dams for inspection

The department has authority to enter upon land to inspect a dam during construction, conduct periodic dam inspections after construction, or conduct a dam inspection in response to a complaint that the dam is unsafe. Except in emergency situations as determined by the director, the department will request permission from the landowner to enter the property. If the landowner refuses to give permission or fails to respond within five days of the request, the department may request a district court order for authorization to enter the property to inspect the dam.

History

• History: Effective January 1, 2015; amended effective January 1, 2023.
• Law Implemented: NDCC 61-03-21.1

Chapter 89-08-04 Operation and Maintenance [Repealed]

N.D. Admin. Code 89-08-04 Operation and Maintenance [Repealed]

CHAPTER 89-08-04

OPERATION AND MAINTENANCE [Repealed effective April 1, 2026]

Article 89-10 Sovereign Lands

Chapter 89-10-01 Sovereign Lands

N.D. Admin. Code 89-10-01-01 Authority

These rules are adopted and promulgated by the department under North Dakota Century Code

chapter 61-33 to provide consistency in the administration and management of sovereign lands. These rules do not apply to the state of North Dakota's interests in oil, gas, and related hydrocarbons on sovereign lands.

January 1, 2023.

History

• History: Effective November 1, 1989; amended effective April 1, 2008; April 1, 2009; July 1, 2014;

N.D. Admin. Code 89-10-01-02 Prohibition on permanent relinquishment

Sovereign lands may not be permanently relinquished, but must be held in perpetual trust for the benefit of the citizens of the state of North Dakota. All structures permitted or otherwise allowed for private use on sovereign lands are subordinate to public use and values.

History

• History: Effective November 1, 1989; amended effective April 1, 2009; July 1, 2014.

N.D. Admin. Code 89-10-01-03 Definitions

The following definitions apply to this article:

1."Authorization" means a permit, easement, lease, or management agreement approved and granted by the department after application; and the authority granted in sections 89-10-01-10 and 89-10-01-19.

2."Boardwalk" means a walk constructed of planking.

3."Department" is defined in North Dakota Century Code section 61-03-01.2.

4."Director" is defined in North Dakota Century Code section 61-03-01.2.

5."Domestic use" means the use of water as defined by subsection 4 of North Dakota Century Code section 61-04-01.1.

6."Grantee" means the person, including that person's assigns, successors, and agents who has authorization.

7."Livestock" means bison, cattle, horses, mules, goats, sheep, and swine.

8."Navigable waters" is defined in North Dakota Century Code section 61-33-01.

9."Ordinary high water mark" is defined in North Dakota Century Code section 61-33-01.

10."Project" means any activity that occurs either partially or wholly on sovereign lands.

11."Riparian owner" means a person who owns land adjacent to navigable waters or the person's authorized agent.

12."Snagging and clearing" means the removal and disposal of fallen trees and associated debris encountered within and along the channel.

13."Structure" means something that is formed from parts, including equipment, boat docks, boat ramps, and water intakes.

14."Watercraft" means any device capable of being used as a means of transportation on waters.

April 1, 2010; July 1, 2014; January 1, 2023.

History

• History: Effective November 1, 1989; amended effective August 1, 1994; April 1, 2008; April 1, 2009;

N.D. Admin. Code 89-10-01-04 Authorization

Each project requires an authorization from the department before construction or operation, except as otherwise provided by these rules. Any department authorization may be modified at the department's discretion.

July 1, 2014; January 1, 2023; July 1, 2024.

History

• History: Effective November 1, 1989; amended effective August 1, 1994; April 1, 2008; April 1, 2009;

N.D. Admin. Code 89-10-01-05 Application for permit, easement, lease, or management agreement

Applications for authorization must be on forms prescribed by the department.

History

• History: Effective November 1, 1989; amended effective July 1, 2014; January 1, 2023.

N.D. Admin. Code 89-10-01-06 Application review

Upon receipt of a completed application, the department shall initiate a review as follows:

1.Comments must be requested from the following entities:

a.The state game and fish department;

b.The department of environmental quality;

c.The state historical society;

d.The state department of trust lands;

e.The state parks and recreation department;

f.The United States fish and wildlife service;

g.The park district and planning commission of any city or county where the proposed project will be located;

h.Any water resource district where the proposed project will be located; and

i.Other agencies, private entities, or landowner associations as appropriate or required by law.

2.Each entity shall submit all comments in writing to the department. The department is not bound by any comment submitted. The department shall receive comments by the deadline stated in the comment request in subsection 1.

3.Upon completion of the review and any public meeting held under section 89-10-01-07, the department may grant, deny, or condition the application.

January 1, 2023; April 1, 2026. 89-10-01-06.1. Record - Official notice.

Unless specifically excluded by the director or the hearing officer, the record in each sovereign land permit application proceeding or adjudicative proceeding under North Dakota Century Code chapter 28-32 includes the following:

1.United States department of agriculture natural resources conservation service reports, including the North Dakota hydrology manual, North Dakota irrigation guide, and county soil survey reports.

2.United States geological survey and department streamflow records.

3.National oceanic and atmospheric administration climatological data.

4.Topographic maps.

5.Department sovereign land permit files.

6.Information in department and state water commission files, records, and other published reports.

7.North Dakota sovereign land management plan.

8.Ordinary high water mark delineation guidelines.

9.Aerial photos.

History

• History: Effective November 1, 1989; amended effective August 1, 1994; April 1, 2008; July 1, 2014;
• History: Effective July 1, 2014; amended effective January 1, 2023.

N.D. Admin. Code 89-10-01-07 Public meeting

An information-gathering public meeting may be held by the department before final action on a project. The procedure for notice and meeting must be as follows:

1.The department must publish a notice of meeting in the official newspaper for each county where the project is located. The notice must be published once each week for two consecutive weeks.

2.The meeting date must be at least twenty days after the date of last publication.

3.The meeting must be conducted by the department and the meeting may be held in Bismarck.

4.The meeting is not an adjudicative proceeding hearing under North Dakota Century Code

chapter 28-32.

History

• History: Effective November 1, 1989; amended effective August 1, 1994; July 1, 2014; January 1, 2023.

N.D. Admin. Code 89-10-01-08 General permit standards

The department may grant, deny, or condition any permit application. In deciding what action to take on a permit application, the department shall consider the potential effects of the proposed project on the following:

1.Riparian owner's correlative rights of use;

2.Recreation;

3.Navigation;

4.Aesthetics;

5.Environment;

6.Erosion;

7.Maintenance of existing water flows;

8.Fish and wildlife;

9.Water quality;

10.Cultural and historical resources; and

11.Alternative uses.

July 1, 2024; April 1, 2026. 89-10-01-08.1. Temporary sovereign lands permits - Removal.

1.The department may issue temporary sovereign lands permits for proposed projects less than twelve months in duration, which do not include permanent ground disturbing activities.

Temporary sovereign lands permits may not be subject to section 89-10-01-06 or 89-10-01-07.

Temporary sovereign lands permits are subject to section 89-10-01-08.

2.A completed application for temporary sovereign lands permit must be submitted to the department on a form prescribed by the department along with any additional information required by the department.

3.Upon temporary sovereign lands permit expiration, all permitted works under this section must be removed in their entirety and the disturbed area restored to preproject conditions within thirty days. The applicant shall notify the department in writing when the temporary use has been completely removed.

History

• History: Effective November 1, 1989; amended effective April 1, 2008; July 1, 2014; January 1, 2023;
• History: Effective April 1, 2026.

N.D. Admin. Code 89-10-01-09 Specific project requirements

Repealed effective July 1, 2014.

N.D. Admin. Code 89-10-01-10 Projects not requiring a permit

The following projects do not require a permit:

1.Boat docks, if all of the following conditions are satisfied:

a.They are constructed, operated, and maintained by the riparian owner for personal use;

b.The dock is used only for embarkation, debarkation, moorage of watercraft, water intakes, or recreation;

c.Only clean, nonpolluting materials are used;

d.The total length of the dock over the surface of the water does not exceed twenty-five feet [7.6 meters] on a river or fifty feet [15.24 meters] on a lake, and there is no unreasonable interference with navigation or access to an adjacent riparian owner's property;

e.The dock is connected to a point above the ordinary high watermark by a boardwalk that does not exceed twenty-five feet [7.6 meters] in length and is removed from below the ordinary high watermark each fall; and

f.Upon abandonment, the grantee dock owner shall restore the bank as closely as practicable to its original condition.

2.Water intakes, if all of the following conditions are satisfied:

a.They are constructed, operated, and maintained by the riparian owner for domestic use; and

b.The intake is removed from below the ordinary high watermark each fall.

3.Watercraft that are temporarily moored.

4.Snagging and clearing, if performed by a federal or state entity or political subdivision.

July 1, 2014; April 1, 2026. 89-10-01-10.1. Boat docks and water intakes.

Boat docks and water intakes not meeting the criteria in section 89-10-01-10 require a permit from the department. Any person who violates this section shall pay a fee not to exceed three hundred fifty dollars per day. The dock is subject to removal at the dock owner's expense.

Boat docks that do not require a permit under this chapter and that are located on the Missouri River between the Oliver and Morton County line (river mile 1328.28) and Lake Oahe wildlife management area (river mile 1303.5) must be registered with the department before placement of any such dock. The department shall provide registration forms. A person who violates this section shall pay a fee not to exceed three hundred fifty dollars per occurrence. The dock is subject to removal at the dock owner's expense.

History

• History: Effective November 1, 1989; amended effective August 1, 1994; April 1, 2009; April 1, 2010;
• History: Effective April 1, 2009; amended effective April 1, 2010; July 1, 2014; January 1, 2023; April 1,
• Law Implemented: NDCC 61-03-21.3, 61-33-02, 61-33-05, 61-33-10 89-10-01-10.2. Boat dock registration.
• History: Effective April 1, 2010; amended effective July 1, 2014; January 1, 2023; April 1, 2026.

N.D. Admin. Code 89-10-01-11 Structures

1.Except as otherwise provided in this chapter, the construction or moorage of a structure is prohibited on sovereign lands. If a structure is prohibited, the department:

a.Shall issue an order to the structure owner identifying the action required to modify or remove the structure and a date by which the ordered action must be taken. Unless an emergency exists, the date by which the ordered action must be taken must be at least twenty days after the order is issued.

b.If the ordered action is not taken by the date specified in the order, the department may modify or remove the structure at the structure owner's expense.

c.May commence a civil proceeding to enforce its order, or, if the department modifies or removes the structure, the department may assess the costs of such action against any property of the structure's owner or may commence a civil proceeding to recover the costs incurred in such action. If the department chooses to recover costs by assessing the costs against property of the structure's owner and the property is insufficient to pay for the costs incurred, the department may commence a civil proceeding to recover any costs not recovered through the assessment process. Any assessment levied under this

section must be collected in the same manner as other real estate taxes are collected and paid.

2.A person who receives an order from the department under this section may send a written request to the department for a hearing. The department must receive the request within ten days of the date the order is issued. The request for a hearing must state with particularity the issues, facts, and points of law to be presented at the hearing. If the director determines the issues, facts, and points of 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 must set a hearing date without undue delay.

3.Any person aggrieved by the action of the director may appeal the decision to the district court of the county where the sovereign lands at issue are located under North Dakota Century Code chapter 28-32. A request for a hearing as provided in subsection 2 is a prerequisite to any appeal to the district court.

April 1, 2010; July 1, 2014; January 1, 2023.

History

• History: Effective November 1, 1989; amended effective August 1, 1994; April 1, 2008; April 1, 2009;
• Law Implemented: NDCC 61-03-21.3, 61-03-22, 61-33-02, 61-33-05, 61-33-10

N.D. Admin. Code 89-10-01-12 Public recreational use

The public may use sovereign lands for recreational purposes except as otherwise provided by these rules or by signage posted by the department.

History

• History: Effective November 1, 1989; amended effective April 1, 2008; April 1, 2009; January 1, 2023.

N.D. Admin. Code 89-10-01-13 Vehicular access

1.The use of motorized vehicles on sovereign lands is prohibited, except:

a.If on government-established trails that have been permitted by the department;

b.If on sovereign lands immediately adjacent to the Kimball Bottoms off-road riding area located in the south half of sections 23 and 24 and the north half of sections 25 and 26, all in township 137 north, range 80 west, Burleigh County;

c.If on state-designated off-road use areas, provided the area is managed and supervised by a government entity, the government entity has developed a management plan for the off-road area that has been submitted to the department, and the managing government entity has obtained a sovereign lands permit for off-road use in the designated area;

d.To cross a stream by use of a ford, bridge, culvert, or similar structure provided the crossing is in the most direct manner possible;

e.To launch or load watercraft in the most direct manner possible;

f.To access and operate on the frozen surfaces of any navigable water, provided the crossing of sovereign lands is in the most direct manner possible;

g.To access private land that has no other reasonable access point, provided that access across sovereign lands is in the most direct manner possible;

h.By disabled people who possess a mobility-impaired parking permit under North Dakota Century Code section 39-01-15 or shoot from a stationary motor vehicle permit under subsection 10 of North Dakota Century Code section 20.1-02-05;

i.If operation is necessary as part of a permitted activity or project;

j.By the riparian owner on sovereign lands that are adjacent to the riparian owner's property when moving or tending to livestock; installing or maintaining a livestock fence; installing, maintaining, or moving an authorized agricultural irrigation structure; or when engaged in other ordinary agricultural practices, provided the listed activities do not negatively affect public use or values; or

k.If being used by government personnel in the performance of their duties.

2.A person who violates this section shall pay a fee not to exceed two hundred fifty dollars per occurrence.

July 1, 2014; January 1, 2023; April 1, 2026.

History

• History: Effective November 1, 1989; amended effective August 1, 1994; April 1, 2008; April 1, 2009;

N.D. Admin. Code 89-10-01-14 Cancellation by the director

The director may cancel any authorization granted under these rules. Cancellation does not release the grantee from any liability. If an applicant is named in an active enforcement action ordered by the department, the department may hold any application submitted by the applicant in abeyance until the order has been satisfied.

July 1, 2014; January 1, 2023.

History

• History: Effective November 1, 1989; amended effective August 1, 1994; April 1, 2008; April 1, 2009;

N.D. Admin. Code 89-10-01-15 Termination by applicant

The grantee may terminate any authorization by notifying the department in writing, paying all fees or other money owed to the state, and reclaiming the site under section 89-10-01-18.

History

• History: Effective November 1, 1989; amended effective July 1, 2014; January 1, 2023.

N.D. Admin. Code 89-10-01-16 Assignments

Any authorization granted under these regulations may only be assigned with the written consent of the department.

History

• History: Effective November 1, 1989; amended effective July 1, 2014; January 1, 2023.

N.D. Admin. Code 89-10-01-17 Inspections

The department may inspect all projects on sovereign lands and enter upon a grantee's land during normal working hours to carry out the inspection.

History

• History: Effective November 1, 1989; amended effective August 1, 1994; April 1, 2009; January 1, 2023.

N.D. Admin. Code 89-10-01-18 Reclamation

After cancellation, termination, abandonment, or expiration of an authorization, grantee must reclaim the project location within one hundred twenty days. If the permit is for mining, reclamation must be within sixty days after the lease expires or the mining is complete. Upon written request, the department may extend the time period if good cause is shown. If grantee fails to reclaim the site to the specifications in the authorization within the required time frame, the department may enter and restore the project location. The grantee is liable for all reclamation costs.

History

• History: Effective November 1, 1989; amended effective July 1, 2014; January 1, 2023.

N.D. Admin. Code 89-10-01-19 Maintenance and repair

Maintenance or repair of authorized projects does not require additional authorization provided the work is in conformance with the original authorization, standards, and specifications provided in this

article and the work does not alter the use or size of the project.

History

• History: Effective November 1, 1989; amended effective August 1, 1994; July 1, 2014.

N.D. Admin. Code 89-10-01-20 Areas of special interest

The department may enter agreements for management of areas of high public value. Examples include parks, beaches, public access points, nondevelopment areas, and wildlife management areas.

History

• History: Effective November 1, 1989; amended effective July 1, 2014; January 1, 2023.

N.D. Admin. Code 89-10-01-21 Organized group activities

Organized group activities that are publicly advertised or are attended by more than twenty-five people are prohibited on sovereign lands without a permit. A person who violates this section is guilty of a noncriminal offense and shall pay a fee not to exceed three hundred fifty dollars per occurrence.

History

• History: Effective April 1, 2008; amended effective April 1, 2009; July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-10-01-22 Pets

Pets are not allowed to run unattended on sovereign lands. A person who violates this section is guilty of a noncriminal offense and shall pay a fee not to exceed seventy five dollars per occurrence.

History

• History: Effective April 1, 2008; amended effective April 1, 2009; July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-10-01-23 Camping

Camping for longer than ten consecutive days within a thirty-day period in the same vicinity or leaving a campsite unattended for more than twenty-four hours is prohibited on sovereign lands. A person who violates this section is guilty of a noncriminal offense and shall pay a fee not to exceed one hundred dollars per occurrence.

History

• History: Effective April 1, 2008; amended effective April 1, 2009; July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-10-01-24 Hunting, fishing, and trapping

Sovereign lands are open for public hunting, fishing, and trapping, except as provided in other rules, regulations, or laws or as posted at public entry points. Posting sovereign lands with signage by anyone other than the department is prohibited without a sovereign lands permit. A person who violates this section shall pay a fee not to exceed one hundred fifty dollars per occurrence.

History

• History: Effective April 1, 2008; amended effective April 1, 2009; July 1, 2014; January 1, 2023; April 1,

N.D. Admin. Code 89-10-01-25 Unattended watercraft

1.Watercraft may not be left unattended on or moored to sovereign lands for more than twenty-four hours except:

a.If moored to authorized docks; or

b.If moored to private property above the ordinary high watermark with a restraint that does not cause unreasonable interference with navigation or the public's use of land below the ordinary high watermark.

2.A person who violates this section is guilty of a noncriminal offense and shall pay a fee not to exceed seventy five dollars per day.

History

• History: Effective April 1, 2008; amended effective April 1, 2009; July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-10-01-26 Removal or destruction of public property

Public property, including archaeological artifacts or cultural resources, trees, shrubs, vines, plants, soil, gravel, fill, rocks, fossils, sod, firewood, posts, poles or other property, may not be mowed, clipped, cut, or removed from sovereign lands without a permit. Firewood may be removed under certain stated conditions from designated firewood cutting plots. Commercial cutting of firewood is prohibited on sovereign lands. Gathering of downed wood for campfires is allowed. A riparian owner may hay or graze sovereign lands adjacent to the riparian owner's property, unless prohibited in writing by the department. Berries and fruit may be picked for noncommercial use, unless prohibited by posted notice.

Property may not be destroyed or defaced. A person who violates this section shall pay a fee not to exceed three hundred fifty dollars per occurrence.

History

• History: Effective April 1, 2008; amended effective April 1, 2009; July 1, 2014; January 1, 2023; April 1,

N.D. Admin. Code 89-10-01-27 Cultural or historical resources

Artifacts or any other cultural or historical resources found on sovereign lands may not be disturbed or destroyed without formal written approval from the state historical society and a permit from the department.

History

• History: Effective April 1, 2008; amended effective April 1, 2009; July 1, 2014; January 1, 2023.

N.D. Admin. Code 89-10-01-28 Disposal of waste

The disposal of refuse, rubbish, bottles, cans, or other waste materials is prohibited on sovereign lands except in garbage containers where provided. Holding tanks of campers or watercraft may not be dumped on sovereign lands. A person who violates this section is guilty of a noncriminal offense and shall pay a fee not to exceed three hundred fifty dollars per occurrence.

History

• History: Effective April 1, 2008; amended effective April 1, 2009; July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-10-01-29 Glass containers

Glass containers are prohibited on sovereign lands. A person who violates this section is guilty of a noncriminal offense and shall pay a fee not to exceed one hundred fifty dollars per occurrence.

History

• History: Effective April 1, 2009; amended effective July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-10-01-30 Abandoned property

Abandonment of vehicles or other personal property is prohibited on sovereign lands. If applicable, the department shall facilitate removal of any such property. The property owner shall pay a fee not to exceed three hundred fifty dollars, and the department may assess removal costs to the property owner.

History

• History: Effective April 1, 2009; amended effective April 1, 2026.

N.D. Admin. Code 89-10-01-31 Firearms

Use of firearms on sovereign lands is allowed except in a reckless and indiscriminate manner or as otherwise posted by the state at public entry points. Tracer rounds or exploding targets are prohibited. A person who violates this section is guilty of a noncriminal offense and shall pay a fee not to exceed one hundred fifty dollars per occurrence.

History

• History: Effective April 1, 2009; amended effective July 1, 2014; April 1, 2026.

N.D. Admin. Code 89-10-01-32 Tree stands

Construction of a permanent tree stand or permanent steps to a tree stand is prohibited on sovereign lands. Portable tree stands, portable steps, screw-in steps, natural tree stands, and portable ground blinds may be used. Portable tree stands, blinds, game cameras, or traps are required to have the owner's name, city, and phone number on the items and be visible at all times while present on state sovereign lands. Portable tree stands and portable steps are defined as those that are held to the tree with ropes, straps, cables, chains, or bars. Screw-in steps are those that are screwed into the tree by hand without the aid of tools. Ladder-type stands that lean against the tree are portable stands.

Natural stands are those crotches, trunks, down trees, etc., where no platform is used. Tree stands do not preempt hunting rights of others in the vicinity of the tree stand. Tree stands and steps may not be put up before August twentieth and must be removed within three days of the close of the archery deer season. Stands and steps not removed within three days of the close of the archery deer season are considered abandoned property and are subject to removal and confiscation by the department. A person who violates this section is guilty of a noncriminal offense and shall pay a fee not to exceed one hundred fifty dollars per tree stand.

History

• History: Effective April 1, 2009; amended effective July 1, 2014; January 1, 2023; April 1, 2026.

N.D. Admin. Code 89-10-01-33 Baiting

Except as otherwise provided in this chapter, placing or using bait to attract, lure, feed, or habituate wildlife to a bait location for any purpose is prohibited on sovereign lands. Bait includes grains, minerals, salt, fruits, vegetables, hay, or any other natural or manufactured feeds. Bait does not include the use of lures, scents, or liquid attractants for hunting or management activities conducted by the department. Bait may be used to lure and take furbearers if engaged in lawful trapping activities. A person who violates this section is guilty of a noncriminal offense and shall pay a fee not to exceed one hundred fifty dollars per occurrence.

History

• History: Effective April 1, 2009; amended effective July 1, 2014; January 1, 2023; April 1, 2026.

N.D. Admin. Code 89-10-01-34 Dredging or filling

1.Unless permitted by the department, dredging or filling on sovereign lands is prohibited. If prohibited dredging or filling occurs, the department:

a.Shall issue an order to the violator identifying the action required to restore the sovereign lands and a date by which the ordered action must be taken. Unless an emergency exists, the date by which the ordered action must be taken must be at least twenty days after the order is issued.

b.If the ordered action is not taken by the date specified in the order, the department may take any action to restore the sovereign lands at the violator's expense.

c.May commence a civil proceeding to enforce its order if the department takes action to restore sovereign lands, the department may assess the costs of such action against the riparian owner's property where the dredging or filling occurred or may commence a civil proceeding to recover the costs incurred in such action. If the department chooses to recover costs by assessing the costs against the riparian owner's property where the dredging or filling occurred and the property is insufficient to pay for the costs incurred, or if the riparian owner was not the party responsible for the dredging or filling, the department may commence a civil proceeding to recover any costs not recovered through the assessment process. Any assessment levied under this section must be collected in the same manner as other real estate taxes are collected and paid.

2.A person who receives an order from the department under this section may send a written request to the department for a hearing. The department must receive the request within ten days of the date the order is issued. The request for a hearing must state with particularity the issues, facts, and points of law to be presented at the hearing. If the director determines the issues, facts, and points of 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 must set a hearing date without undue delay.

3.Any person aggrieved by the action of the director may appeal the decision to the district court of the county where the sovereign lands at issue are located under North Dakota Century Code chapter 28-32. A request for a hearing as provided in subsection 2 is a prerequisite to any appeal to the district court.

History

• History: Effective April 1, 2010; amended effective July 1, 2014; January 1, 2023.

Article 89-11 Drought Disaster Livestock Water Assistance Program

Chapter 89-11-01 Drought Disaster Livestock Water Assistance Program

N.D. Admin. Code 89-11-01-01 Definitions

1."Commission" is defined in North Dakota Century Code section 61-02-02.

2."Department" is defined in North Dakota Century Code section 61-03-01.2.

3."Livestock producer" means an individual who breeds or raises livestock or operates a dairy farm, who normally devotes the major portion of the individual's time to farming or ranching activities, and who normally receives at least fifty percent of the individual's annual gross income from farming or ranching.

4."Water supply project" includes the components and installation necessary to transfer and provide water from a water source to drought-affected livestock.

History

• History: Effective July 1, 1992; amended effective April 1, 2008; July 1, 2014; April 1, 2018; January 1, 2023.
• Law Implemented: NDCC 61-34-01, 61-34-02, 61-34-03

N.D. Admin. Code 89-11-01-02 Drought declaration required

Funds will only be disbursed for water supply projects in counties that the governor has declared to be a drought disaster area for purposes of this program.

The commission will determine the program's beginning and end dates.

History

• History: Effective July 1, 1992; amended effective April 1, 2008; July 1, 2014; April 1, 2018.
• Law Implemented: NDCC 61-34-01, 61-34-02, 61-34-03

N.D. Admin. Code 89-11-01-03 Applicant eligibility

1.The applicant must be a livestock producer with livestock water supply problems caused by drought.

2.The applicant must receive department approval for a water supply project. A water supply project completed before the program activation date is not eligible.

January 1, 2023; April 1, 2026.

History

• History: Effective July 1, 1992; amended effective August 27, 2002; April 1, 2008; April 1, 2018;

N.D. Admin. Code 89-11-01-04 Funding - Priority - Eligible items

1.The commission shall provide funds for the program to the extent funding is available. Priority must be based on earliest completed application date.

2.Cost-share assistance may only be used for water supply projects that will provide a solution to a drought-related water supply shortage.

3.All wells drilled with funds provided under this program must be drilled by a North Dakota licensed water well contractor licensed under title 90 and North Dakota Century Code section 61-03-01.3.

4.Eligible items include new water wells, rural water system connections, pipeline extensions, pasture taps, and associated works, labor, materials, and equipment rentals for work completed by the producer to develop new water supply projects.

July 1, 2014; April 1, 2018; January 1, 2023; April 1, 2026.

History

• History: Effective July 1, 1992; amended effective January 1, 1993; August 27, 2002; April 1, 2008;

N.D. Admin. Code 89-11-01-05 Noneligible items

The following projects are not eligible for program funding:

1.Existing well rehabilitation.

2.A water supply project on federal land, state land, or land outside North Dakota.

3.A dry hole drilled in an attempt to construct a water well or locate a water source.

4.Stock dam or dugout construction dependent upon runoff, or projects dependent on surface water sources that may be unreliable during drought conditions.

5.Projects that require repair due to damage or failure to provide maintenance to an existing water source.

6.Hours billed for work completed by the applicant, the applicant's family, or their employees.

April 1, 2008; July 1, 2014; April 1, 2018.

History

• History: Effective July 1, 1992; amended effective January 1, 1993; August 27, 2002; July 21, 2006;
• Law Implemented: NDCC 61-34-02, 61-34-03

N.D. Admin. Code 89-11-01-06 Application procedure

1.Requests for assistance must be on a commission form and include:

a.An area map indicating the proposed water supply project location.

b.A proposed water supply project cost estimate.

c.Verification the applicant is a livestock producer.

2.The department shall review applications and acknowledge their receipt. The department shall, within available funding limits, provide assistance to those livestock producers whose applications are approved. The applicant shall agree to:

a.Complete the project within one hundred eighty days of receiving funding approval notification. The department may grant a time extension if a written request providing just cause is submitted.

b.Provide actual expenditure receipts.

c.Grant the department or its agent the right to enter the land to inspect the completed water supply project after giving reasonable notice to the applicant.

d.Indemnify and hold harmless the state of North Dakota, the commission, the department, and their agents from all claims resulting from or arising out of the activities of the applicant or applicant's agents.

3.Application forms may be obtained by contacting the department.

July 1, 2014; April 1, 2018; January 1, 2023; April 1, 2026.

History

• History: Effective July 1, 1992; amended effective August 27, 2002; July 21, 2006; April 1, 2008;

Article 89-12 Municipal, Rural, and Industrial Water Supply Program

Chapter 89-12-01 Municipal, Rural, and Industrial Water Supply Program

N.D. Admin. Code 89-12-01-01 Definitions

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

1."Commission" is defined in North Dakota Century Code section 61-02-02.

2."Department" is defined in North Dakota Century Code section 61-03-01.2.

3."Design and construction" means preparation of the final design plans and the construction of a project.

4."Feasibility study" means a report of sufficient detail to provide a sound estimate of capital costs, water costs to users, and operation, maintenance, and replacement costs.

5."Garrison Diversion" means Garrison Diversion Conservancy District.

6."Preliminary engineering report" means a reconnaissance level report containing sufficient information to determine whether additional detailed studies are merited.

7."Program funds" means money available for municipal, rural, and industrial projects through the Garrison Diversion Reformulation Act of 1986, as amended by the Water Resources Development Act of 2000, Pub. L. 106-541, 114 Stat. 2572 (2000), administered by the bureau of reclamation.

8."Public water system" means a piped potable water system with at least fifteen service connections or regularly serving at least twenty-five individuals.

9."Regional water system" is a system that provides water to at least four public water systems and may also include rural water users.

10."Rural water users" means all users, excluding incorporated cities.

History

• History: Effective June 1, 1994; amended effective January 1, 2015; January 1, 2023.
• Law Implemented: NDCC 54-40-01, 57-51.1-07.1, 61-02-14, 61-02-24.1, 61-02-64, 61-24-08

N.D. Admin. Code 89-12-01-02 Eligible projects

1.Design and construction activities for the following types of projects are eligible for financial assistance from program funds:

a.New ground water wells including mechanical and electrical components.

b.Pipelines from water sources to public water systems and principal supply works for rural water systems.

c.Booster pumping plants for supply lines.

d.Intake works and pumping plants for new surface water sources.

e.New or enlarged storage facilities.

f.New rural water systems or enlargements or extensions of existing rural water systems.

g.New regional water systems or enlargements or extensions of existing regional water systems.

h.New water treatment plants.

i.Modifications to and upgrades of existing water treatment plants.

2.Program funds may be used for engineering and legal, costs, costs incurred in conducting environmental reviews or cultural resources investigations, right-of-way costs, excluding the purchase of easements, and costs associated with the planning, design, and construction of eligible projects listed in subsection 1.

3.Program funds are not available for costs associated with operation, maintenance, and replacement of water supply or treatment systems or the costs associated with the preparation of the preliminary engineering report.

History

• History: Effective June 1, 1994; amended effective January 1, 2015.
• Law Implemented: NDCC 54-40-01, 57-51.1-07.1, 61-02-14, 61-02-24.1, 61-02-64, 61-24-08

N.D. Admin. Code 89-12-01-03 Application for feasibility study funding

1.To be considered for program funds, the project sponsor must submit an application to the department and Garrison Diversion that includes:

a.Information explaining the need for the project, including its objectives and benefits.

b.The area to be served by the project.

c.A preliminary engineering report.

d.The approximate cost of the project.

e.The amount of funding sought from program funds and the amount the project sponsor intends to contribute to the feasibility study.

f.The results of all efforts made to secure funds from sources other than program funds.

Provide the current rate schedule for the water supply and treatment systems.

g.Other information the project sponsor believes pertinent or that the department requests.

2.During review of the application, the department, in consultation with Garrison Diversion, may decide which parts of the project are eligible for funding from program funds.

3.After review of the application, the department may prepare a report setting forth the recommendations regarding the project feasibility study funding. If a report is prepared, it must address whether the project is consistent with statewide plans and programs, and the department will provide a copy to the commission and Garrison Diversion.

4.The commission and Garrison Diversion will jointly approve program funds within the district.

History

• History: Effective June 1, 1994; amended effective January 1, 2015; January 1, 2023.
• General Authority: NDCC 61-02-11, 61-02-14(2)
• Law Implemented: NDCC 54-40-01, 57-51.1-07.1, 61-02-14, 61-02-24.1, 61-02-64, 61-24-08

N.D. Admin. Code 89-12-01-04 Application to determine eligibility - Initial review by the state engineer

N.D. Admin. Code 89-12-01-05 Preliminary engineering reports - Initial review by state engineer - Bureau requirements

N.D. Admin. Code 89-12-01-06 Application for design and construction funding

1.A project sponsor requesting design or construction funding must submit a feasibility study to the department.

2.For projects that deliver Missouri River water to the Hudson Bay drainage area, a determination must be made that treatment will be provided to meet requirements of the Boundary Waters Treaty Act of 1909.

3.The project sponsor must submit two copies of the feasibility study to Garrison Diversion and one copy to the department.

4.After review of the feasibility study, the department, in consultation with Garrison Diversion, may prepare a report setting forth the recommendations regarding the project design or construction funding. If a report is prepared, it must address whether the project is consistent with statewide plans and programs. The department will provide a copy to the commission and Garrison Diversion.

5.The commission and Garrison Diversion will jointly approve program funds within the district.

History

• History: Effective June 1, 1994; amended effective January 1, 2015; January 1, 2023.
• General Authority: NDCC 61-02-11, 61-02-14(2)
• Law Implemented: NDCC 54-40-01, 57-51.1-07.1, 61-02-14, 61-02-24.1, 61-02-64, 61-24-08

N.D. Admin. Code 89-12-01-07 Design and construction requirements

N.D. Admin. Code 89-12-01-08 Funding - Priority

1.The commission may evaluate each eligible project based on the following criteria:

a.Need for improving water supply quantity or quality problems.

b.Local contribution to project funding.

c.Location of project.

d.Ability to pay.

e.Economic development.

f.Water conservation plan and drought management plan.

g.Other criteria determined to be relevant by the commission.

Based upon these evaluations, the commission, after consultation with Garrison Diversion, may rank the eligible projects in priority order.

2.Program funds may be approved for eligible projects to the extent funding is available as determined by the commission, after consultation with Garrison Diversion. Program funds may be in the form of grants or loans for feasibility, design, or construction.

History

• History: Effective June 1, 1994; amended effective January 1, 2015.
• Law Implemented: NDCC 54-40-01, 57-51.1-07.1, 61-02-14, 61-02-24.1, 61-02-64, 61-24-08

N.D. Admin. Code 89-12-01-09 Reports to commission and c-district

N.D. Admin. Code 89-12-01-10 Contract awards

Article 89-13 Northwest Area Water Supply Project

Chapter 89-13-01 Northwest Area Water Supply Project

N.D. Admin. Code 89-13-01-01 Definitions

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

1."Agreement of intent" means an agreement between the entity operating or desiring to operate a distribution system and the state water commission, whereby the entity agrees to consider entering into a water service agreement for delivery of water from the northwest area water supply project and the state water commission agrees to include the water requirements of the distribution system in the prefinal design of the project.

2."Distribution system" means a system for the provision to users of potable water, if such system has at least fifteen service connections or regularly serves at least twenty-five users.

3."Prefinal design" means the engineering analysis of the project layout incorporating distribution systems of all entities that have entered into an agreement of intent.

4."Project" means the northwest area water supply project authorized by North Dakota Century Code chapter 61-24.6.

5."User" means a household, business, or farmstead that uses water.

6."Water service agreement" means an agreement to purchase water from the northwest area water supply project based upon the results of the prefinal design and projected development of the project.

N.D. Admin. Code 89-13-01-02 Statement of project purpose and intent

The purpose of the project is to ensure a dependable, long-term supply of good water to users of existing and planned distribution systems in northwestern North Dakota that have entered into a water service agreement with the state water commission.

The support of existing rural water associations and cities that are supplying water to other distribution systems in the project area is very important to the success of the project. Therefore, it is the intent of the project advisory committee to preserve existing water supply relationships in the project area.

N.D. Admin. Code 89-13-01-03 Eligibility

1.Any distribution system or portion of a distribution system may enter into an agreement of intent or a water service agreement except for:

a.A distribution system, or portion thereof, that received water from a rural water association, city, or other distribution system in the project area at any time before March 1, 1995, if the distribution system that supplied the water has entered into an agreement of intent or a water service agreement; or

b.A distribution system, or portion thereof, that enters into an agreement to receive water from a rural water association, city, or other distribution system after March 1, 1995, if the distribution system that supplied or is supplying water has entered into an agreement of intent or a water service agreement.

2.Any receiving distribution system, or portion thereof, that was receiving water from a supplying distribution system may enter into an agreement of intent or a water service agreement if the supplying distribution system terminates the agreement to provide water to the receiving distribution system.

3.A receiving distribution system purchasing water from a supplying distribution system that has entered into an agreement of intent or a water service agreement is eligible to enter into an agreement of intent or a water service agreement for expansion into areas not served by project water from the supplying distribution system.

Article 89-14 Public Highway Stream Crossings

Chapter 89-14-01 Stream Crossing Design

N.D. Admin. Code 89-14-01-01 Standards

Except as provided in section 89-14-01-06, all highways constructed or reconstructed by the department of transportation, board of county commissioners, board of township supervisors, their contractors, subcontractors, or agents, or by any individual, firm, corporation, or limited liability company must be designed to meet the standards contained in this chapter. The department of transportation, board of county commissioners, board of township supervisors, their contractors, subcontractors, or agents, or any individual, firm, corporation, or limited liability company that fails to comply with these standards is not entitled to the immunity provided in North Dakota Century Code sections 24-03-06, 24-03-08, or 24-06-26.1.

History

• History: Effective May 1, 2001; amended effective July 27, 2001; January 1, 2015.

N.D. Admin. Code 89-14-01-02 Definitions

1."Constructed" means to construct a new highway on a new location or corridor.

2."Highway, street, or road" is defined in North Dakota Century Code section 24-01-01.1.

3."Reconstructed" means to regrade, add a lane adjacent to the existing alignment, or do full depth road surface replacement on an existing highway location. For purposes of this chapter, reconstructed also includes replacing or installing a stream crossing.

4."Stream crossing" means an opening to permit the flow of water under, adjacent to, or because of a highway.

History

• History: Effective May 1, 2001; January 1, 2015.

N.D. Admin. Code 89-14-01-03 Design flood frequency

The following table provides the minimum design standard recurrence interval of the event for which each type of stream crossing must be designed. Nothing contained in this chapter is intended to restrict an entity from providing greater capacity.

Type of Crossing State Highway SystemCounty Urban SystemRural SystemRural System Regional Urban Roads Principal Arterial Minor Arterial Major Collector Major Collector Off SystemInterstateOther Bridges & Reinforced Concrete Boxes 15 year Roadway Culverts 15 year 2, 3, 5 Storm Drains10 year 5 year Underpass Storm Drains Discharges must be computed using the rational method or other recognized hydrologic methods.

Discharges must be computed using United States geological survey report 2015-5096 or other recognized hydrologic methods.

If an overflow section is provided, the pipes and the overflow section, in combination, must pass the appropriate design event within the headwater limitations provided in this chapter.

Off system roads include all nonmajor collector public roads open for public travel.

For public roads open for public travel under the jurisdiction of a board of township supervisors of a civil township, the recurrence interval is 10 years.

July 1, 2024.

History

• History: Effective May 1, 2001; amended effective July 27, 2001; January 1, 2015; January 1, 2023;

N.D. Admin. Code 89-14-01-04 Floodplain consideration - Upstream development

All stream crossings must comply with applicable floodplain regulations and regulatory floodway requirements per North Dakota Century Code chapter 61-16.2. If a stream crossing is being replaced and buildings or structures are located upstream from the crossing, the stream crossing must not be reconstructed in a manner that increases the likelihood of impacts to those upstream buildings or structures, even if the capacity of the crossing being replaced was greater than the capacity otherwise required by this chapter. Any stream crossing constructed as part of a newly constructed roadway must be constructed to pass the federal emergency management agency identified one-percent annualchance flood event flow without the resulting increase in headwater impacting any existing buildings or structures. Structures, for the purposes of this section, include grain bins, silos, feedlots, and corrals.

Structures do not include pasture fencing.

History

• History: Effective May 1, 2001; amended effective January 1, 2015; January 1, 2023.

N.D. Admin. Code 89-14-01-05 Allowable headwater

The allowable maximum headwater when passing the design discharge must be measured from the bottom of the channel. For arch pipes, the maximum allowable headwater must be based on the rise of the pipe, and the pipe size category must be the equivalent round pipe size. For multiple pipe installations, the pipe diameter used to calculate the allowable headwater must be the diameter of the largest pipe. Tailwater resulting from downstream conditions, either natural or manmade, must be accounted for in the determination of the crossing's capacity and the resulting headwater. Additional guidance is provided in the North Dakota department of transportation design manual. If a crossing results in less than one-half foot [15.24 centimeters] of headloss when passing the appropriate design discharge, this section does not apply.

Streambed Slope (feet/mile)Pipe SizeAllowable Headwater <524" - 54"pipe diameter + 2 feet ≥ 60"1.5 pipe diameters 5 to 1024" - 36"pipe diameter + 2 feet 42" - 54"1.5 pipe diameters ≥ 60"2 pipe diameters >10≥ 24"2 pipe diameters

History

• History: Effective May 1, 2001; amended effective January 1, 2015.

N.D. Admin. Code 89-14-01-06 Deviations

The board of county commissioners, board of township supervisors, their contractors, subcontractors, or agents, or any individual, firm, corporation, or limited liability company may deviate from the standards contained in this chapter if the deviation is approved in writing by the department of water resources and the department of transportation. A request to deviate from the standards must be made in writing and must set forth the reasons for the proposed deviation. The department of water resources and department of transportation may grant a deviation for good and sufficient cause after considering public safety, upstream and downstream impacts, and other relevant matters.

The department of transportation may deviate from these standards if the department determines it is appropriate to do so and the crossings are designed under scientific highway construction and engineering standards. The basis for the department's decision must be documented in writing.

Roads constructed as part of a surface coal mining operation for use solely as part of the mining operation are not subject to the requirements of this chapter. Roads constructed because of a surface coal mining operation for use by the public are bound by the requirements of this chapter, but deviations may be requested under this section.

History

• History: Effective May 1, 2001; amended effective January 1, 2015; January 1, 2023.

Article 89-15 Watercourses

Chapter 89-15-01 Watercourse Determination Review

N.D. Admin. Code 89-15-01-01 Definitions

Unless the context otherwise requires, the following definitions apply:

1."Artificial watercourse" means a watercourse that was formed by artificial construction but maintained by natural causes, such as a natural watercourse that is straightened but still receives the same contributing runoff prior to its straightening.

2."Natural watercourse", except as used in North Dakota Century Code section 61-32-03.1, means a watercourse that was formed and maintained by natural causes. 3"Watercourse" is defined in North Dakota Century Code section 61-01-06. Other terms that are synonymous with watercourse are river, stream, creek, or channel. Watercourses may be natural or artificial.

N.D. Admin. Code 89-15-01-02 Identifying a watercourse

The department shall use the following criteria if reviewing a watercourse determination. No one criteria alone may constitute a watercourse, but rather a comprehensive review of the criteria provides the information necessary for a watercourse determination.

1.Sufficient natural and accustomed flow must be present or possible. This means the flow must be from a natural source, such as precipitation, snowmelt, or a natural spring, and must regularly or frequently occur during normal hydrology years.

2.A distinct and defined channel must be maintained by natural and accustomed flows. It is not necessary that the channel be natural or created by natural causes, but the flow in the channel must be sufficient enough to maintain the channel without routine artificial maintenance, including removal of silt, sediment, and vegetation.

3.A distinct and defined channel must have a definite bed and banks. It is not necessary that the banks be well defined or sharply cut, but they must be easily discernable in times of little vegetative cover and have some capacity to carry flowing water.

4.A plainly defined channel must be present and easily discernable.

5.A channel of permanent character must be present and evident upon site inspection and review of aerial photography. The channel must have existed in that location for several years or have the high likelihood of existing there for several years in the case of a recently constructed artificial watercourse.

6.The land use of the site in question may play a role, including whether the land is routinely used for agricultural purposes and if agricultural crops would be injured by any received waters.

N.D. Admin. Code 89-15-01-03 Information to use if reviewing a watercourse determination

Data or information to be utilized includes the following:

1.Relevant and readily available aerial photography.

2.Mapping products including United States geological survey quads, LiDAR data, general land office notes, and existing surveys.

3.Information collected or observed during a site visit, including notes, photos, and simple surveying exercises, if warranted.

4.Any other information that may assist in a determination, including:

a.A hydrology analysis of the watershed that provides the watershed area contributing to the site and flow quantity and flow frequency to expect at the site.

b.Any court case history involving watercourse determinations.

c.Any further scientific justification necessary, including analyzing channel forming velocities, soil types, sediment transport, and geomorphology.

N.D. Admin. Code 89-15-01-04 Watercourse determination review request

Requests to review a watercourse determination must be received by the department within thirty days after the determination was made by the state agency or political subdivision of the state. The department's decision is final and subject to appeal under North Dakota Century Code section 61-03-22.

Chapter 89-04

N.D. Admin. Code 89-04

ARTICLE 89-04

WATER MANAGEMENT PLANS FOR SURFACE COAL MINING OPERATIONS [Repealed effective January 1, 2015]

Chapter 89-09

N.D. Admin. Code 89-09

ARTICLE 89-09

WETLAND RESTORATION PERMITS [Repealed effective April 1, 2000]