23.0024.03000
Sixty-eighth
Legislative Assembly SENATE BILL NO. 2036
of North Dakota
Introduced by
Legislative Management
(Water Drainage Committee)
1 A BILL for an Act to create and enact thirteen new sections to chapter 61-16.1 of the North
2 Dakota Century Code, relating to water resource boards; to amend and reenact sections
3 61-01-06, 61-01-23, 61-05-02.1, 61-16.1-02, 61-16.1-09, 61-16.1-09.1, 61-16.1-15, 61-16.1-17,
4 61-16.1-18, 61-16.1-19, 61-16.1-20, 61-16.1-21, 61-16.1-22, 61-16.1-23, 61-16.1-24,
5 61-16.1-26, 61-16.1-27, 61-16.1-28, 61-16.1-42, 61-16.1-43, 61-16.1-51, and 61-16.1-54,
6 subdivision g of subsection 4 of section 61-32-03.1, and subsection 3 of section 61-32-03.2 of
7 the North Dakota Century Code, relating to water resource boards and procedures for
8 assessment projects undertaken by water resource boards; and to repeal section 61-16.1-01
9 and chapter 61-21 of the North Dakota Century Code, relating to water resource districts, water
10 resource boards, assessment procedures and requirements, and drains.
11 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
12 SECTION 1. AMENDMENT. Section 61-01-06 of the North Dakota Century Code is
13 amended and reenacted as follows:
14 61-01-06. Watercourse and waterway - DefinitionDefinitions.
15 1. A watercourse entitled to the protection of the law is constituted if there is a sufficient
16 natural and accustomed flow of water to form and maintain a distinct and a defined
17 channel. The supply of water is not required to be continuous or from a perennial living
18 source. The criteria for constituting a watercourse are satisfied if the flow arises
19 periodically from natural causes and reaches a plainly defined channel of a permanent
20 character. If requested by a water resource board, the department of water resources
21 shall determine whether a watercourse is constituted.
22 2. For purposes of this title, unless the context otherwise requires, "waterway" means a
23 natural, geologic feature that conveys surface water over land.
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1 SECTION 2. AMENDMENT. Section 61-01-23 of the North Dakota Century Code is
2 amended and reenacted as follows:
3 61-01-23. Investigation or removal of obstructions in channelwaterway.
4 In order to investigate or remove obstructions from the channel or bed of any watercourse
5 and thus prevent ice from gorging therein and to prevent flooding or pollution of such
6 watercourse
7 1. Upon a request from a landowner affected by a natural or artificial obstruction to a
8 waterway, the state water commission, any water resource district, any municipality,
9 any board of county commissioners, and any federal agency authorized to construct
10 works for prevention ofto prevent damage by floods or for abatement ofabate stream
11 pollution, mayshall notify, and upon the entity's own volition, may notify, the owner of
12 lands lying adjacent to the obstructed waterway as follows:
13 a. The owner of adjacent lands shall remove the obstruction within thirty days of
14 receiving the notice; and
15 b. If the obstruction is not removed within the thirty days, the entity that sent the
16 notice may enter uponthe owner's lands lying adjacent to such watercoursethe
17 waterway to investigate or remove, or cause to be removed from the bed,
18 channel, or banks of such watercoursethe waterway any obstructions whichthat
19 prevent or hinder the free flow of water or passage of ice therein, at the owner's
20 expense. However, such entry
21 2. Entry upon adjacent lands under this section must be by the most accessible route
22 and the entering agencyentity is responsible to the landowner for any damage.
23 SECTION 3. AMENDMENT. Section 61-05-02.1 of the North Dakota Century Code is
24 amended and reenacted as follows:
25 61-05-02.1. Creation and jurisdiction of irrigation district - Limitations.
26 Notwithstanding section 61-05-02, an irrigation district may not be created if the primary
27 purpose of the district is to provide drainage benefits to residents of the district. A drainage
28 project proposed, undertaken, approved, or subject to assessment by an irrigation district also
29 is subject to the permit requirements under chapter 61-32. Drainage benefits provided by an
30 irrigation district may not impact the authority of a water resource board to assess for drainage
31 projects under chapter 61-16.1 or 61-21.
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1 SECTION 4. AMENDMENT. Section 61-16.1-02 of the North Dakota Century Code is
2 amended and reenacted as follows:
3 61-16.1-02. Definitions.
4 InFor purposes of this chapter, unless the context or subject matter otherwise
5 providesrequires:
6 1. "Affected landowners" means landowners whose land is subject to special
7 assessment or condemnation for a project.
8 2. "Assessment drain" means any natural watercourse opened, or proposed to be
9 opened, and improved for the purpose of drainage, and any artificial drain of any
10 nature or description constructed for the purpose of drainage, including dikes and
11 appurtenant works, which area drain financed in whole or in part by special
12 assessment. This definition may include more than one watercourse or artificial
13 channel constructed for the purpose of drainage when the watercourses or channels
14 drain land within a practical drainage area.
15 3. "Cleaning out and repairing a drain" means deepening and widening a drain and
16 removing obstructions or sediment, and any repair necessary to return the drain to a
17 satisfactory and useful condition.
18 4. "Commission" means the state water commission.
19 4.5. "Conservation" means planned management of water resources to prevent
20 exploitation, destruction, neglect, or waste.
21 5.6. "Costs of the frivolous complaint" means all reasonable costs associated with the
22 requisite proceedings regarding the removal of obstructions to a drain, removal of a
23 noncomplying dike or dam, or closing a noncomplying drain, including all reasonable
24 construction costs; all reasonable attorney's fees and legal expenses; all reasonable
25 engineering fees, including investigation and determination costs; compliance
26 inspections; and necessary technical memorandum and deficiency review; and all
27 costs associated with any hearing conducted by a district, including preparation and
28 issuance of any findings of fact and any final closure order.
29 6.7. "District" means a water resource district.
30 7.8. "Drain" means any natural watercourse opened, or proposed to be opened, and
31 improved for drainage, and any artificial channel constructed for drainage. The term
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1 includes dikes and appurtenant works and may include more than one watercourse or
2 artificial channel when the watercourses or channels drain land within a practical
3 drainage area.
4 9. "Frivolous" means allegations and denials in any complaint filed with a district made
5 without reasonable cause and not in good faith.
6 8.10. "Lateral drain" means a drain constructed after the establishment of an original drain
7 or drainage system and which flows into the original drain or drainage system from
8 outside the limits of the original drain.
9 11. "Practical drainage area" means, for assessment drains, the practical drainage area
10 determined by the survey and examination required under section 61-16.1-17.
11 12. "Project" means any undertaking for water conservation,; flood control,; water supply,;
12 water delivery,; erosion control and watershed improvement,; drainage of surface
13 waters,; collection, processing, and treatment of sewage, or; discharge of sewage
14 effluent,; or any combination thereof, includingof purposes in this subsection, and
15 includes incidental features of any suchthe undertaking.
16 9.13. "Water resource board" or "board" means the water resource district's board of
17 managers.
18 SECTION 5. AMENDMENT. Section 61-16.1-09 of the North Dakota Century Code is
19 amended and reenacted as follows:
20 61-16.1-09. Powers of water resource board.
21 Each water resource board shall have the power and authority to:
22 1. Sue and be sued in the name of the district.
23 2. Exercise the power of eminent domain as follows:
24 a. Except as permitted under subdivision b, the board shall comply with title 32 for
25 the purpose of acquiring and securing by eminent domain any rights, titles,
26 interests, estates, or easements necessary or proper to carry out the duties
27 imposed by this chapter, and particularly to acquire the necessary rights in land
28 for the construction of dams, flood control projects, and other water conservation,
29 distribution, and supply works of any nature and to permit the flooding of lands,
30 and to secure the right of access to such dams and other devices and the right of
31 public access to any waters impounded thereby.
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1 b. (1) If the interest sought to be acquired is an easement for a right of way for any
2 project authorized in this chapter for which federal or state funds have been
3 made available, the district may acquire the right of way by quick take
4 eminent domain as authorized by section 16 of article I of the Constitution of
5 North Dakota, after the district attempts to purchase the easement for the
6 right of way by:
7 (a) Conducting informal negotiations for not less than sixty days.
8 (b) If informal negotiations fail, the district shall engage in formal
9 negotiations by:
10 [1] Sending the landowner an appraisal and written offer for just
11 compensation, which includes a specific description of the exact
12 location of the right of way, by certified mail or commercial
13 delivery requiring a signed receipt, and receiving the signed
14 receipt or documentation of constructive notice.
15 [2] Sending the landowner a written request for a meeting by
16 certified mail or commercial delivery requiring a signed receipt if
17 there is no agreement regarding compensation or no response to
18 the written offer within fifteen days of receipt, and receiving the
19 signed receipt or documentation of constructive notice.
20 [3] Sending the landowner a written notice, by certified mail or
21 commercial delivery requiring a signed receipt, of intent to take
22 possession of the right of way if there is no agreement regarding
23 compensation or no response to the written request for a
24 meeting within thirty days of receipt, and receiving the signed
25 receipt or documentation of constructive notice.
26 (2) Any written communication to the landowner must include contact
27 information for responding to the board and a description of the required
28 negotiation timeline.
29 (3) A district may not include or utilize any reference to quick take eminent
30 domain during negotiations to acquire the necessary easement for a right of
31 way. If formal negotiation efforts fail, the district shall request approval from
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1 the board of county commissioners of the county in which the right of way is
2 located to take possession of the right of way by quick take eminent domain.
3 After receiving the request, the county commissioners shall hold a public
4 meeting and give the landowner thirty days' notice of the meeting to allow
5 the landowner to attend. After receiving verification from the district that
6 there has been no reference or threat of quick take eminent domain by the
7 district during negotiations, the commissioners shall vote on whether to
8 approve the taking of the easement for a right of way using quick take
9 eminent domain. If the county commissioners approve the use of quick take
10 eminent domain by a majority vote, the district may take immediate
11 possession of the right of way, but not a blanket easement, if the district files
12 an affidavit by the chairman of the water resource board which states the
13 district has fulfilled the required negotiation steps and deposits the amount
14 of the written offer with the clerk of the district court of the county in which
15 the right of way is located.
16 (4) Within thirty days after notice has been given in writing to the landowner by
17 the clerk of the district court that a deposit has been made for the taking of a
18 right of way as authorized in this subsection, the owner of the property taken
19 may appeal to the district court by serving a notice of appeal upon the
20 acquiring agency, and the matter must be tried at the next regular or special
21 term of court with a jury unless a jury be waived, in the manner prescribed
22 for trials under chapter 32-15.
23 (5) If ownership of a right of way has not terminated, ownership of a right of way
24 acquired under this subdivision terminates automatically when the district no
25 longer needs the right of way for the purpose for which it was acquired.
26 3. Accept funds and property or other assistance, financial or otherwise, from federal,
27 state, and other public or private sources for the purposes of aiding the construction or
28 maintenance of water conservation, distribution, and flood control projects; and
29 cooperate and contract with the state or federal government, or any department or
30 agency thereof, or any municipality within the district, in furnishing assurances and
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1 meeting local cooperation requirements of any project involving control, conservation,
2 distribution, and use of water.
3 4. Procure the services of engineers and other technical experts, and employ an attorney
4 or attorneys to assist, advise, and act for it in its proceedings.
5 5. Plan, locate, relocate, construct, reconstruct, modify, maintain, repair, and control all
6 dams and water conservation and management devices of every nature and water
7 channels, and to control and regulate the same and all reservoirs, artificial lakes, and
8 other water storage devices within the district.
9 6. Maintain and control the water levels and the flow of water in the bodies of water and
10 streams involved in water conservation and flood control projects within the district and
11 regulate streams, channels, drains, or watercourses and the flow of water thereinin
12 them by changing, widening, deepening, or straightening the same, or otherwise
13 improving the use and capacity thereofthem; or by cleaning out and repairing a drain.
14 7. Regulate and control water for the prevention of floods and flood damages by
15 deepening, widening, straightening, or diking the channels or floodplains of any stream
16 or watercourse within the district, and construct reservoirs or other structures to
17 impound and regulate such waters.
18 8. Make rules and regulations concerning the management, control, regulation, and
19 conservation of waters and prevent the pollution, contamination, or other misuse of the
20 water resources, streams, or bodies of water included within the district.
21 9. Do all things reasonably necessary and proper to preserve the benefits to be derived
22 from the conservation, control, and regulation of the water resources of this state.
23 10. Construct, operate, and maintain recreational facilities, including beaches, swimming
24 are