Sixty-ninth Legislative Assembly of North Dakota
In Regular Session Commencing Tuesday, January 7, 2025
SENATE BILL NO. 2059
(Energy and Natural Resources Committee)
(At the request of the Department of Water Resources)
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.
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 S. B. NO. 2059 - PAGE 2
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:
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
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 S. B. NO. 2059 - PAGE 3
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 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 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. S. B. NO. 2059 - PAGE 4
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 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 S. B. NO. 2059 - PAGE 5
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. S. B. NO. 2059 - PAGE 6
____________________________ ____________________________
President of the Senate Speaker of the House
____________________________ ____________________________
Secretary of the Senate Chief Clerk of the House
This certifies that the within bill originated in the Senate of the Sixty-ninth Legislative Assembly of North
Dakota and is known on the records of that body as Senate Bill No. 2059.
Senate Vote:Yeas 47 Nays 0 Absent 0
House Vote: Yeas 91 Nays 1 Absent 2
____________________________
Secretary of the Senate
Received by the Governor at ________M. on _____________________________________, 2025.
Approved at ________M. on __________________________________________________, 2025.
____________________________
Governor
Filed in this office this ___________day of _______________________________________, 2025,
at ________ o’clock ________M.
____________________________
Secretary of State