61-04 Appropriation of Water - North Dakota Statutes

Download pdf

Loading PDF...

CHAPTER 61-04APPROPRIATION OF WATER61-04-01.Petitions, reports, surveys, and other documents filed in office ofcommission. Any petitions, applications, surveys, reports, orders, or other documents provided
for in this chapter shall be filed in the office of the commission in the city of Bismarck, where they
shall be kept on file under the control of the state engineer.61-04-01.1. Definitions. In this chapter, unless the context or subject matter otherwiserequires:1."Beneficial use" means a use of water for a purpose consistent with the best
interests of the people of the state.2."Commission" means the state water commission.3."Domestic use" means the use of water by an individual, or by a family unit, or
household, for personal needs and for household purposes, including heating,
drinking, washing, sanitary, and culinary uses; irrigation of land not exceeding five
acres [2.0 hectares] in area for noncommercial gardens, orchards, lawns, trees, or
shrubbery; and for household pets and domestic animals kept for household
sustenance and not for sale or commercial use, when the water is supplied by the
individual or family unit. Also included within this use are "domestic rural uses"
which must be defined by the state engineer by rule.4."Fish, wildlife, and recreation" means the use of water for the purposes of
propagating and sustaining fish and wildlife resources and for the development and
maintenance of water areas necessary for outdoor recreation activities.5."Industrial use" means the use of water for the furtherance of a commercial
enterprise wherever located, including manufacturing, mining, or processing.6."Irrigation use" means the use of water for application to more than five acres
[2.0 hectares] of land to stimulate the growth of agricultural crops, including gardens,
orchards, lawns, trees, or shrubbery, or the maintenance of recreation areas such as
athletic fields, golf courses, parks, and similar types of areas, except when the water
for the facility is provided by a municipal water system.7."Livestock use" means the use of water for drinking purposes by herds, flocks, or
bands of animals kept for commercial purposes.8."Municipal or public use" means the use of water by the state through its political
subdivisions, institutions, facilities, and properties, and the inhabitants thereof, or by
unincorporated communities, subdivision developments, rural water systems, and
other entities, whether supplied by the government or by a privately owned public
utility or other agency or entity, for primarily domestic purposes, as defined herein.9."Person" includes political subdivisions, corporations, limited liability companies,
partnerships, associations, the United States and its departments or agencies, the
state of North Dakota and its departments or agencies, and any other legal entity.10."Rural water system" means a water supply system designed to serve regional
needs.11."Water of the state" or "waters of the state" means those waters identified in section
61-01-01.Page No. 161-04-01.2. Right to use water - Basis. A right to appropriate water can be acquired forbeneficial use only as provided in this chapter. Beneficial use shall be the basis, the measure,
and the limit of the right to the use of water.61-04-02.Permit for beneficial use of water required.Any person, beforecommencing any construction for the purpose of appropriating waters of the state or before
taking waters of the state from any constructed works, shall first secure a water permit from the
state engineer unless such construction or taking from such constructed works is for domestic or
livestock purposes or for fish, wildlife, and other recreational uses or unless otherwise provided
by law. However, immediately upon completing any constructed works for domestic or livestock
purposes or for fish, wildlife, and other recreational uses, the water user shall notify the state
engineer of the location and acre-feet [1233.48 cubic meters] capacity of such constructed works,
dams, or dugouts. Regardless of proposed use, however, all water users shall secure a water
permit prior to constructing an impoundment capable of retaining more than twelve and one-half
acre-feet [15418.52 cubic meters] of water or the construction of a well from which more than
twelve and one-half acre-feet [15418.52 cubic meters] of water per year will be appropriated. If a
permit is not required of a landowner or the landowner's lessee to appropriate less than twelve
and one-half acre-feet [15418.52 cubic meters] of water from any source for domestic or
livestock purposes or for fish, wildlife, and other recreational uses, those appropriators may apply
for water permits in order to clearly establish a priority date and the state engineer may waive
any fee or hearing for such applications. An applicant for a water permit to irrigate need not be
the owner of the land to be irrigated.61-04-02.1.Emergency or temporary authorization.The state engineer mayauthorize emergency or temporary use of water for periods not to exceed twelve months if the
state engineer determines such use will not be to the detriment of existing rights. The state
engineer shall establish by rule a separate procedure for the processing of applications for
emergency or temporary use.No prescriptive or other rights to the use of water shall beacquired by use of water as authorized herein.61-04-03. Application for water permit - Contents - Information to accompany. Theapplication for a permit to make beneficial use of any waters of the state shall be in the form
required by the rules established by the state engineer. Such rules shall prescribe the form and
contents of, and the procedure for filing, the application. The application, along with all other
information filed with it, shall be retained in the office of the commission after approval or
disapproval of the application.The state engineer may require additional information notprovided for in the general rules if the state engineer deems it to be necessary.61-04-03.1. Limitation on amount of water. An individual may not apply for a permit orpermits for irrigation which, if approved, would enable the individual, at any one time, to hold a
conditional permit or permits for more than seven hundred twenty acre-feet [888106.75 cubic
meters] of water which has not been applied to beneficial use. Applications submitted in violation
of this section shall not be assigned a priority date and shall be returned to the applicant by the
state engineer. This section shall not apply to applications for water permits from the Missouri
River or to applications submitted by irrigation districts organized pursuant to this title. For the
purposes of this section, an individual means any person, including the person's spouse, and
dependents thereof within the meaning of the Internal Revenue Code [26 U.S.C. 152].61-04-04.Filing and correction of application.The date of the receipt of theapplication provided for in section 61-04-03 in the commission office shall be noted thereon. If
the application is defective as to form, incomplete, or otherwise unsatisfactory, it shall be
returned with a statement of the corrections, amendments, or changes required, within thirty days
after its receipt, and sixty days shall be allowed for the refiling thereof. If the application is
corrected as required and is refiled within such time, it, upon being accepted, shall take priority
as of the date of its original filing. Any corrected application filed after the time allowed shall be
treated in all respects as an original application received on the date of its refiling.Theapplication may be amended by the applicant at any time prior to the commencement of
administrative action by the state engineer as provided in sections 61-04-05 through 61-04-07.Page No. 261-04-04.1. Application fees. The following fees must accompany an application andmust be paid by the state engineer into the water use fund of the state treasury:1.For municipal or public use in municipalities
or other entities of 2,500 population or over
according to the latest federal census$5002.For municipal or public use in municipalities
or other entities of less than 2,500 population
according to the latest federal census$2503.For irrigation$2004.For industrial use of one c.f.s. or less, or
seven hundred twenty-four acre-feet
[893039.52 cubic meters] or less$2505.For industrial use in excess of one c.f.s., or
in excess of seven hundred twenty-four
acre-feet [893039.52 cubic meters]$7506.For recreation, livestock, or fish and
wildlife$1007.For commercial recreation$2008.Water permit amendment$ 5061-04-04.2. Refund of water permit application fees. The state engineer may refunda water permit application fee, upon the request of the applicant, if the application is withdrawn
by the applicant, and:1.The state engineer has not published notice of the application; or2.The state engineer determines other good and sufficient cause exists to refund the
application fee.61-04-05. Notice of application - Contents - Proof - Failure to file satisfactory proof.When an application is filed which complies with this chapter and the rules adopted under this
chapter, the state engineer shall instruct the applicant to:1.Give notice of the application by certified mail in the form prescribed by rule, to all
record title owners of real estate within a radius of one mile [1.61 kilometers] from
the location of the proposed water appropriation site, except:a.If the one-mile [1.61-kilometer] radius extends within the geographical boundary
of a city, the notice must be given to the governing body of the city and no
further notice need be given to the record title owners of real estate within the
geographical boundary of the city.b.If the one-mile [1.61-kilometer] radius includes land within the geographical
boundary of a rural subdivision where the lots are of ten acres [4.04 hectares]
or less, the notice must be given to the governing body of the township or other
governing authority for the rural subdivision and no further notice need be given
to the record title owners of real estate within the geographical boundary of the
rural subdivision.c.If the one-mile [1.61-kilometer] radius includes a single tract of rural land which
is owned by more than ten individuals, the notice must be given to thePage No. 3governing body of the township or other governing authority for that tract of land
and no further notice need be given to the record title owners of that tract.2.Give notice of the application by certified mail in the form prescribed by rule to all
persons holding water permits for the appropriation of water from appropriation sites
located within a radius of one mile [1.61 kilometers] from the location of the
proposed water appropriation site.The state engineer shall provide a list of allpersons who must be notified under this subsection to the applicant.3.Give notice of the application by certified mail in the form prescribed by rule to all
municipal or public use water facilities within a twelve-mile [19.32-kilometer] radius
of the proposed water appropriation site. The state engineer shall provide a list of all
municipal or public use water facilities that must be notified under this subsection to
the applicant.4.Provide the state engineer with an affidavit of notice by certified mail within sixty
days from the date of the engineer's instructions to provide notice. If the applicant
fails to file satisfactory proof of notice by certified mail within sixty days and in
compliance with the applicable rules, the state engineer shall treat the application as
an original application filed on the date of receipt of the affidavit of notice by certified
mail in proper form. Upon receipt of a proper affidavit of notice by certified mail, the
state engineer shall publish notice of the application, in a form prescribed by rule, in
the official newspaper of the county in which the proposed appropriation site is
located, once a week for two consecutive weeks.5.The notice must give all essential facts as to the proposed appropriation, including
the places of appropriation and of use, amount of water, the use, the name and
address of the applicant, and the date by which written comments regarding the
proposed appropriation must be filed with the state engineer. The notice must also
state that anyone who files written comments with the state engineer will be mailed a
copy of the state engineer's recommended decision on the application.6.The applicant shall pay all costs of the publication of notice.61-04-05.1. Comments - Hearing.1.Comments regarding a proposed appropriation must be in writing and filed by the
date specified by the state engineer under subsection 5 of section 61-04-05. The
comments must state the name and address of the person filing the comments.2.The state engineer shall consider all written comments received and shall
recommend in writing approval or disapproval of the application or that the
application be held in abeyance. A copy of the recommended decision must be
mailed to the applicant and any person who filed written comments.3.Within thirty days of service of the recommended decision, the applicant and any
person who would be aggrieved by the decision and who filed written comments
may file additional written comments with the state engineer or request a hearing on
the application, or both. A request for a hearing 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 hearing. If a request for a hearing is not
made, the state engineer shall consider the additional comments, if any are
submitted, and issue a final decision. If a request for a hearing is made, or if the
state engineer determines a hearing is necessary to obtain additional information to
evaluate the application or to receive public input, the state engineer shall designate
a time and place for the hearing and serve a copy of the notice of hearing upon 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 at least
twenty days before the hearing.Page No. 44.If two or more municipal or public use water facilities request the hearing to be held
locally, the state engineer shall hold the hearing in the county seat of the county in
which the proposed water appropriation site is located.61-04-06. Criteria for issuance of permit. The state engineer shall issue a permit if thestate engineer finds all of the following:1.The rights of a prior appropriator will not be unduly affected.2.The proposed means of diversion or construction are adequate.3.The proposed use of water is beneficial.4.The proposed appropriation is in the public interest.In determining the publicinterest, the state engineer shall consider all of the following:a.The benefit to the applicant resulting from the proposed appropriation.b.The effect of the economic activity resulting from the proposed appropriation.c.The effect on fish and game resources and public recreational opportunities.d.The effect of loss of alternate uses of water that might be made within a
reasonable time if not precluded or hindered by the proposed appropriation.e.Harm to other persons resulting from the proposed appropriation.f.The intent and ability of the applicant to complete the appropriation.Subsection 1 of section 28-32-38 does not apply to water permit application proceedings unless
a request for a hearing is made. If an application is approved, the state engineer shall issue a
conditional water permit allowing the applicant to appropriate water.Provided, however, thecommission may, by resolution, reserve unto itself final approval authority over any specific water
permit in excess of five thousand acre-feet [6167409.19 cubic meters]. The state engineer may
cause a certified transcript to be prepared for any hearing conducted pursuant to this section.
The costs for the original and up to nine copies of the transcript must be paid by the applicant.61-04-06.1. Preference in granting permits. When there are competing applicationsfor water from the same source, and the source is insufficient to supply all applicants, the state
engineer shall adhere to the following order of priority:1.Domestic use.2.Municipal use.3.Livestock use.4.Irrigation use.5.Industrial use.6.Fish, wildlife, and other outdoor recreational uses.61-04-06.2. Terms of permit. The state engineer may issue a conditional permit for lessthan the amount of water requested, but in no case may the state engineer issue a permit for
more water than can be beneficially used for the purposes stated in the application except that
water permits for incorporated municipalities or rural water systems may contain water in excess
of present needs if based upon reasonable projections of future water needs of the municipality
or the rural water system.The state engineer may require modification of the plans andPage No. 5specifications for the appropriation. The state engineer may issue a permit subject to fees for
water use, terms, conditions, restrictions, limitations, and termination dates the state engineer
considers necessary to protect the rights of others and the public interest.Conditions andlimitations so attached must be related to matters within the jurisdiction of the state engineer;
provided, however, that all conditions attached to any permit issued prior to July 1, 1975, are
binding upon the permittee.61-04-06.3. Priority. Priority in time shall give the superior water right. Priority of awater right acquired under this chapter dates from the filing of an application with the state
engineer, except for water applied to domestic, livestock, or fish, wildlife, and other recreational
uses in which case the priority date shall relate back to the date when the quantity of water in
question was first appropriated, unless otherwise provided by law.Priority of appropriation does not include the right to prevent changes in the condition ofwater occurrence, such as the increase or decrease of streamflow, or the lowering of a water
table, artesian pressure, or water level, by later appropriators, if the prior appropriator can
reasonably acquire the prior appropriator's water under the changed conditions.61-04-07. Rejection of applications - Appeal to district court. If the state engineerdetermines that an application does not meet the criteria prescribed in section 61-04-06, the state
engineer shall reject the application. The state engineer shall decline to order the publication of
notice of any application which does not comply with the requirements of the law and the rules
thereunder. Any applicant, within sixty days from the date of refusal to approve an application,
may appeal to the district court of the county in which the proposed place of diversion or storage
is situated, from any decision of the state engineer which denies a substantial right. In the
absence of such appeal, the decision of the state engineer shall be final.61-04-07.1.Approval of applications with conditions.Repealed by S.L. 1977,ch. 569,