25.8036.01000
Sixty-ninth
Legislative Assembly
of North Dakota
Introduced by
Energy and Natural Resources Committee
(At the request of the Department of Water Resources)
A BILL for an Act to amend and reenact sections 61-04-05.1, 61-16.1-53.1, and 61-32-08 of
North Dakota Century Code, relating to hearing and appeals processes of the department of
water resources.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. AMENDMENT. Section 61-04-05.1 of the North Dakota Century Code is
amended and reenacted as follows:
61-04-05.1. Comments - Hearing.
1.Comments regarding a proposed appropriation must be in writing and filed by the date
specified by the department of water resources under subsection 5 of section
61-04-05. The comments must state the name and mailing address of the person filing
the comments. Comment letters submitted electronically must state the name and
mailing address of the person filing the comments, and must be signed by the
submitter to be considered valid and part of the official record.
2.A person filing written comments also may request a public hearing for the department
to obtain additional information to evaluate the application or to receive public input by
the date specified by the department of water resources under subsection 5 of section
61-04-05. If a request for a public hearing is made and the department determines a
public hearing is necessary, the department shall designate a time and place for the
public hearing and serve a notice of hearing uponnotify the applicant and any person
who filed written comments. Service must be made in the manner allowed for service
under the North Dakota Rules of Civil Procedure by certified mail at least twenty days
before the hearing.
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SENATE BILL NO. 2059
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3.If two or more municipal or public use permitholders request the public hearing to be
held locally, the department of water resources shall hold the hearing in the county
seat of the county in which the proposed water appropriation site is located.
4.The department of water resources shall consider all written comments received and
testimony presented at a public hearing, if held, and shall make a recommended
decision in writing. The recommended decision must be mailed to the applicant and
any party of record and may constitute:
a.Approval of all or a portion of the application, with the remainder held in
abeyance or denied;
b.Denial of the application; or
c.Deferral of the application.
5.Within thirty days of service of the recommended decision, the applicant and any party
of record who would be aggrieved by the decision may file additional written
comments with the department of water resources or request an adjudicative
proceeding on the application, or both. A request for an adjudicative proceeding must
be made in writing and must state with particularity how the person would be
aggrieved by the decision and the issues and facts to be presented at the proceeding.
If a request for an adjudicative proceeding is not made, the department shall consider
the additional comments, if any are submitted, and issue a final decision. If a request
for an adjudicative proceeding is made and the department determines an adjudicative
proceeding is necessary, the department shall designate a time and place for the
adjudicative proceeding and serve the notice of adjudicative proceeding uponnotify the
applicant and any person who filed written comments. Service must be made in the
manner allowed for service under the North Dakota Rules of Civil Procedure by
certified mail at least twenty days before the hearing.
SECTION 2. AMENDMENT. Section 61-16.1-53.1 of the North Dakota Century Code is
amended and reenacted as follows:
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61-16.1-53.1. Appeal of board decisions - Department of water resources review -
Closing of noncomplying dams, dikes, or other devices for water conservation, flood
control, regulation, and watershed improvement.
1.The board shall make the decision required by section 61-16.1-53 within a reasonable
time, not exceeding one hundred twenty days, after receiving the complaint. The board
shall notify all parties of its decision by certified mail. Any aggrieved party may appeal
the board's decision to the department of water resources. The appeal to the
department must be made within thirty days from the date notice of the board's
decision has been received. The appeal must be made by submitting a written notice
to the department which must state specifically the reason why the board's decision is
erroneous. The appealing party also shall submit copies of the written appeal notice to
the board and to all nonappealing parties. Upon receipt of this notice the board, if it
has ordered removal of a dam, dike, or other device, is relieved of its obligation to
procure the removal of the dam, dike, or other device. The department shall handle
the appeal by conducting an independent investigation and making an independent
determination of the matter. The department may enter property affected by the
complaint to investigate the complaint.
2.If the board fails to investigate and make a determination concerning the complaint
within a reasonable time, not exceeding one hundred twenty days, the person filing the
complaint may file the complaint with the department of water resources within one
hundred fifty days of the submittal date of the original complaint. Without reference to
chapter 28-32, the department shall cause the investigation and determination to be
made, either by action against the board or by conducting the investigation and
making the determination.
3.If the department of water resources determines a dam, dike, or other device has
been constructed or established by a landowner or tenant contrary to title 61 or any
rules adopted by the board, the department shall take one of these three actions:
a.Notify the landowner by certified mail at the landowner's post-office address of
record;
b.Return the matter to the jurisdiction of the board along with the investigation
report; or
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c.Forward the dam, dike, or other device complaint and investigation report to the
state's attorney.
4.If the department of water resources decides to notify the landowner, the notice must
specify the nature and extent of the noncompliance and state that if the dam, dike, or
other device is not removed within a reasonable time as determined by the
department, but not less than thirty days, the department shall procure the removal of
the dam, dike, or other device and assess the cost of removal against the responsible
landowner's property. The notice from the department also must state that, within
fifteen days of the date the notice is mailed, the affected landowner may demand, in
writing, a hearing on the matter. Upon receipt of the demand, the department shall set
a hearing date within fifteen days from the date the demand is received. If, in the
opinion of the department, more than one landowner or tenant has been responsible,
the costs may be assessed on a pro rata basis in proportion to the responsibility of the
landowners. Upon assessment of costs, the department shall certify the assessment
to the county auditor of the county where the noncomplying dam, dike, or other device
is located. The county auditor shall extend the assessment against the property
assessed. Each assessment must be collected and paid as other property taxes are
collected and paid. Assessments collected must be deposited with the state treasurer
and credited to the contract fund established by section 61-02-64.1. Any person
aggrieved by action of the department under this section may appeal the decision of
the department to the district court under chapter 28-32. A hearing by the department
as provided for in this section is a prerequisite to an appeal.
5.If the department of water resources, after completing the investigation required under
this section, decides to return the matter to the board, a complete copy of the
investigation report must be forwarded to the board and must include the nature and
extent of the noncompliance. Upon having the matter returned to its jurisdiction, the
board shall carry out the department's decision under the terms of this section.
6.If the department of water resources, after completing the investigation required under
this section, decides to forward the dam, dike, or other device complaint to the state's
attorney, a complete copy of the investigation report must also be forwarded and must
include the nature and extent of the noncompliance. The state's attorney shall
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prosecute the complaint under the statutory responsibilities prescribed in chapter
11-16.
7.If the department of water resources dismisses the dam, dike, or other device
complaint, the department of water resources shall notify all parties of record to the
appeal and include in its notification the department of water resource's investigation
report, if applicable.
8.In addition to the penalty imposed by the court on conviction under this statute, the
court shall order the dam, dike, or other device removed within a reasonable time
period as the court determines, but not less than thirty days. If the dam, dike, or other
device is not removed within the time prescribed by the court, the court shall procure
the removal of the dam, dike, or other device, and assess the cost against the property
of the landowner responsible, in the same manner as other assessments under
chapter 61-16.1 are levied. If, in the opinion of the court, more than one landowner or
tenant has been responsible, the costs may be assessed on a pro rata basis in
proportion to the responsibility of the landowners.
9.Any party aggrieved by a decision of the department of water resources under this
section may request a hearing under section 61 - 03 - 22 and appeal the decision to
district court under chapter 28 - 32. A hearing by the department of water resources
under this section is a prerequisite to an appeal.
SECTION 3. AMENDMENT. Section 61-32-08 of the North Dakota Century Code is
amended and reenacted as follows:
61-32-08. Appeal of board decisions - Department of water resources review - Closing
of noncomplying drains.
1.The board shall make the decision required by section 61-32-07 within a reasonable
time, but not to exceed one hundred twenty days, after receiving the complaint. The
board shall notify all parties of its decision by certified mail. Any aggrieved party may
appeal the board's decision to the department of water resources. The appeal to the
department must be made within thirty days from the date notice of the board's
decision has been received. The appeal must be made by submitting a written notice
to the department, and the notice must specify the reason why the board's decision is
erroneous. The appealing party also shall submit copies of the written appeal notice to
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the board and to all nonappealing parties. Upon receipt of this notice the board, if it
has ordered closure of a drain, lateral drain, or ditch, is relieved of its obligation to
procure the closing or filling of the drain, lateral drain, or ditch. The department shall
handle the appeal by conducting an independent investigation and making an
independent determination of the matter. The department may enter property affected
by the complaint to investigate the complaint.
2.If the board fails to investigate and make a determination concerning the complaint
within a reasonable time, but not to exceed one hundred twenty days, the person filing
the complaint may file the complaint with the department of water resources within one
hundred fifty days of the submittal date of the original complaint. The department,
without reference to chapter 28-32, shall cause the investigation and determination to
be made, either by action against the board or by conducting the investigation and
making the determination.
3.If the department of water resources determines a drain, lateral drain, or ditch has
been opened or established by a landowner or tenant contrary to title 61 or any rules
adopted by the board, the department shall take one of three actions:
a.Notify the landowner by certified mail at the landowner's post-office address of
record;
b.Return the matter to the jurisdiction of the board along with the investigation
report; or
c.Forward the drainage complaint and investigation report to the state's attorney.
4.If the department of water resources decides to notify the landowner, the notice must
specify the nature and extent of the noncompliance and state if the drain, lateral drain,
or ditch is not closed or filled within a reasonable time as determined by the
department, but not less than thirty days, the department shall procure the closing or
filling of the drain, lateral drain, or ditch and assess the cost, against the responsible
landowner's property. The notice from the department must state the affected
landowner may demand in writing, within fifteen days of the date the notice is mailed,
a hearing on the matter. Upon receipt of the demand, the department shall set a
hearing date within fifteen days from the date the demand is received. If, in the opinion
of the department, more than one landowner or tenant has been responsible, the
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costs may be assessed on a pro rata basis in proportion to the responsibility of the
landowners. Upon assessment of costs, the department shall certify the assessment
to the county auditor of the county where the noncomplying drain, lateral drain, or ditch
is located. The county auditor shall extend the assessment against the property
assessed. Each assessment must be collected and paid as other property taxes are
collected and paid. Assessments collected must be deposited with the state treasurer
and credited to the contract fund established by section 61-02-64.1. Any person
aggrieved by action of the department under this section may appeal the decision of
the department to the district court under chapter 28-32. A hearing by the department
under this section is a prerequisite to an appeal.
5.If the department of water resources, after completing the investigation required under
this section, decides to return the matter to the board, a complete copy of the
investigation report must be forwarded to the board and it must include the nature and
extent of the noncompliance. Upon having the matter returned to its jurisdiction, the
board shall carry out the department's decision under this section.
6.If the department of water resources, after completing the investigation required under
this section, decides to forward the drainage complaint to the state's attorney, a
complete copy of the investigation report must be forwarded and must include the
nature and extent of the noncompliance. The state's attorney shall prosecute the
complaint under the statutory responsibilities prescribed in chapter 11-16.
7.If the department of water resources dismisses the drainage complaint, the
department of water resources shall notify all parties of record to the appeal and
include in its notification the department of water resource's investigation report, if
applicable.
8.In addition to the penalty imposed by the court on conviction under this statute, the
court shall order the drain, lateral drain, or ditch closed or filled within a reasonable
time period as the court determines, but not less than thirty days. If the drain, lateral
drain, or ditch is not closed or filled within the time prescribed by the court, the court
shall procure the closing or filling of the drain, lateral drain, or ditch, and assess the
cost against the property of the landowner responsible, in the same manner as other
assessments under chapter 61-16.1 are levied. If, in the opinion of the court, more
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than one landowner or tenant has been responsible, the costs may be assessed on a
pro rata basis in proportion to the responsibility of the landowners.
9.Any party aggrieved by a decision of the department of water resources under this
section may request a hearing under section 61 - 03 - 22 and appeal the decision to
district court under chapter 28 - 32. A hearing by the department of water resources
under this section is a prerequisite to an appeal.
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