23.8116.01000
Sixty-eighth
Legislative Assembly HOUSE BILL NO. 1074
of North Dakota
Introduced by
Energy and Natural Resources Committee
(At the request of the Department of Water Resources)
1 A BILL for an Act to amend and reenact section 61-04-01.1, subsection 5 of section 61-04-05,
2 and section 61-04-05.1 of the North Dakota Century Code, relating to informational hearings for
3 water permit applications.
4 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
5 SECTION 1. AMENDMENT. Section 61-04-01.1 of the North Dakota Century Code is
6 amended and reenacted as follows:
7 61-04-01.1. Definitions.
8 In this chapter, unless the context or subject matter otherwise requires:
9 1. "Adjudicative proceeding" means an appeal under chapter 28-32 of a recommended
10 decision prepared by the director of the department of water resources for a water
11 permit application.
12 2. "Assignment" means the change of a water permit from one permitholder to another
13 permitholder.
14 3. "Beneficial use" means a use of water for a purpose consistent with the best interests
15 of the people of the state.
16 4. "Commission" means the state water commission.
17 5. "Conditional water permit" means a water permit that has not been perfected.
18 6. "Domestic use" means the use of water by at least one family unit or household
19 obtaining water from the same system for personal needs and for household
20 purposes, including heating, drinking, washing, sanitary, and culinary uses; irrigation of
21 land not exceeding five acres [2.0 hectares] in area for each family unit or household
22 for noncommercial gardens, orchards, lawns, trees, or shrubbery; and for household
23 pets and domestic animals kept for household sustenance and not for sale or
24 commercial use.
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1 7. "Fish, wildlife, and other recreational uses" means the use of water for the purposes of
2 propagating and sustaining fish and wildlife resources and for the development and
3 maintenance of water areas necessary for outdoor recreation activities.
4 8. "Fossil byproduct water" means water obtained as a byproduct of extraction and
5 separation from oil, gas, and other hydrocarbons, from a formation that is both not a
6 potable aquifer at the extraction location and is situated below the deepest potable
7 aquifer by the practically impermeable layer.
8 9. "Industrial use" means the use of water for the furtherance of a commercial enterprise
9 wherever located, including manufacturing, mining, or processing.
10 10. "Informational hearing" means an administrative proceeding, not an adjudicative
11 proceeding, which provides all interested persons an opportunity to present oral or
12 written comments on a water permit application.
13 11. "Irrigation use" means the use of water for application to more than five acres
14 [2.0 hectares] of land to stimulate the growth of agricultural crops, including gardens,
15 orchards, lawns, trees, or shrubbery, or the maintenance of recreation areas such as
16 athletic fields, golf courses, parks, and similar types of areas, except when the water
17 for the facility is provided by a municipal water system.
18 12.11. "Livestock use" means the use of water for drinking purposes by herds, flocks, or
19 bands of animals kept for commercial purposes.
20 13.12. "Municipal or public use" means the use of water by the state through its political
21 subdivisions, institutions, facilities, and properties, and the inhabitants thereof, or by
22 unincorporated communities, subdivision developments, rural water systems, and
23 other entities, whether supplied by the government or by a privately owned public
24 utility or other agency or entity, for primarily domestic purposes, as defined herein.
25 14.13. "Party of record" means a person who filed written comments by the date specified
26 under subsection 5 of section 61-04-05.
27 15.14. "Perfected water permit" means a water permit where the water appropriated under a
28 conditional water permit has been applied to a beneficial use and the department of
29 water resources has inspected the works to verify all conditions have been met.
30 16.15. "Permitholder" means the name of the entity holding a water permit.
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1 17.16. "Point of diversion" means the tract of land where the waters of the state are
2 withdrawn or diverted.
3 18.17. "Priority date" means the date assigned to an application or water right.
4 18. "Public hearing" means an administrative proceeding, not an adjudicative proceeding,
5 which provides all interested persons an opportunity to present oral or written
6 comments on a water permit application.
7 19. "Rural water system" means a water supply system designed to serve regional needs.
8 20. "Water of the state" or "waters of the state" means those waters identified in section
9 61-01-01.
10 21. "Water right" means the right established under this title to appropriate or store waters
11 of the state.
12 SECTION 2. AMENDMENT. Subsection 5 of section 61-04-05 of the North Dakota Century
13 Code is amended and reenacted as follows:
14 5. The notice must give all essential facts as to the proposed appropriation, including the
15 places of appropriation and of use, amount of water, the use, the name and address of
16 the applicant, and the date by which written comments and requests for an
17 informationalpublic hearing regarding the proposed appropriation must be filed with
18 the department of water resources. The notice also must state anyone who files
19 written comments with the department will be mailed the department's recommended
20 decision on the application. Persons filing written comments will become a party of
21 record to the application. The comment deadline is five p.m. on the first business day
22 thirty days after the first published notice in the official county newspaper as specified
23 in subsection 4.
24 SECTION 3. AMENDMENT. Section 61-04-05.1 of the North Dakota Century Code is
25 amended and reenacted as follows:
26 61-04-05.1. Comments - Hearing.
27 1. Comments regarding a proposed appropriation must be in writing and filed by the date
28 specified by the department of water resources under subsection 5 of section
29 61-04-05. The comments must state the name and mailing address of the person filing
30 the comments. Comment letters submitted electronically must state the name and
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1 mailing address of the person filing the comments, and must be signed by the
2 submitter to be considered valid and part of the official record.
3 2. A person filing written comments also may request an informationala public hearing on
4 the applicationfor the department to obtain additional information to evaluate the
5 application or to receive public input by the date specified by the department of water
6 resources under subsection 5 of section 61-04-05. If a request for an informationala
7 public hearing is made and the department determines an informationala public
8 hearing is necessary to obtain additional information to evaluate the application or to
9 receive public input, the department shall designate a time and place for the
10 informationalpublic hearing and serve a notice of hearing upon the applicant and any
11 person who filed written comments. Service must be made in the manner allowed for
12 service under the North Dakota Rules of Civil Procedure at least twenty days before
13 the hearing.
14 3. If two or more municipal or public use permitholders request the informationalpublic
15 hearing to be held locally, the department of water resources shall hold the hearing in
16 the county seat of the county in which the proposed water appropriation site is located.
17 4. The department of water resources shall consider all written comments received and
18 testimony presented at an informationala public hearing, if held, and shall make a
19 recommended decision in writing. The recommended decision must be mailed to the
20 applicant and any party of record and may constitute:
21 a. Approval of all or a portion of the application, with the remainder held in
22 abeyance or denied;
23 b. Denial of the application; or
24 c. Deferral of the application.
25 5. Within thirty days of service of the recommended decision, the applicant and any party
26 of record who would be aggrieved by the decision may file additional written
27 comments with the department of water resources or request an adjudicative
28 proceeding on the application, or both. A request for an adjudicative proceeding must
29 be made in writing and must state with particularity how the person would be
30 aggrieved by the decision and the issues and facts to be presented at the proceeding.
31 If a request for an adjudicative proceeding is not made, the department shall consider
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1 the additional comments, if any are submitted, and issue a final decision. If a request
2 for an adjudicative proceeding is made and the department determines an adjudicative
3 proceeding is necessary, the department shall designate a time and place for the
4 adjudicative proceeding and serve the notice of adjudicative proceeding upon the
5 applicant and any person who filed written comments. Service must be made in the
6 manner allowed for service under the North Dakota Rules of Civil Procedure at least
7 twenty days before the hearing.
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Statutes affected: INTRODUCED: 61-04-01.1, 61-04-05, 61-04-05.1
Enrollment: 61-04-01.1, 61-04-05, 61-04-05.1
PREFILED: 61-04-01.1, 61-04-05, 61-04-05.1