Best if printed in landscape.
far, the discussion has focused on acquiring water. This portion of the
course will briefly introduce laws addressing the question of "can I rid
myself of water that I do not want." The discussion will begin with an
overview of relevant common law. Note that most of the concepts discussed
in this section of the course arose in the past 40 years (since the mid
- Purpose is protect
neighbors and adjacent land.
- Landowner could
not drain all undesired water onto the neighbor; landowners must proceed
reasonably in draining their land so not to imposed an unacceptable
burden on the downstream lands that receive the drained water.
v. Weckerly, 364 N.W.2d 93 (N.D. 1985) N.D. Supreme Court
reasonable-use rule is applied by courts in reconciling conflicting
uses of surface water and the land over which it flows. The reasonable-use
concept is based upon the principle that although every landowner
has the right to the use and enjoyment of his property, such use
must be reasonable so as not to cause unnecessary injury to others.
court has held that in effecting a reasonable use of his land for
a legitimate purpose a landowner, acting in good faith, may drain
his land of surface waters and cast them as a burden upon the land
of another, although such drainage carries with it some waters which
otherwise never would have gone that way but would have remained
on the land until they were absorbed by the soil or evaporated in
the air. Nilson v. Markestad, 353 N.W.2d 312 (N.D. 1984);
Young v. Hamilton, 332 N.W.2d 237 (N.D. 1983).
drainage of surface waters complies with the reasonable-use rule
There is a reasonable necessity for such drainage;
if reasonable care be taken to avoid unnecessary injury to the
land receiving the burden;
If the utility or benefit accruing to the land drained reasonably
outweighs the gravity of the harm resulting to the land receiving
the burden; and
If, where practicable, it is accomplished by reasonably improving
and aiding the normal and natural system of drainage according
to its reasonable carrying capacity, or if, in the absence of
a practicable natural drain, a reasonable and feasible artificial
drainage system is adopted." Young v. Hamilton, supra,
332 N.W.2d at 242, quoting Enderson v. Kelehan, 226 Minn.
163, 166, 32 N.W.2d 286, 289 (1948).
v. Markestad, 353 N.W.2d 312 (N.D. 1984) N.D. Supreme Court
Northern v. Benson County Water Resource District, 2000 ND 182,
618 N.W.2d 155 N.D. Supreme Court
Dakota drainage permit
- Purpose is to protect
neighbors and adjacent land.
§61-32-03 Permit to drain waters required - Penalty. Any person,
before draining a pond, slough, lake, or sheetwater, or any series thereof,
which has a watershed area comprising eighty acres [32.37 hectares]
or more, shall first secure a permit to do so.
Chapter 89-02-01 Drainage of Ponds ...
v. Hamilton, 332 N.W.2d 237 (N.D. 1983)
gravamen of our holding in Jacobsen v. Pedersen, supra,
was that there are two separate concepts of law which may be applicable
in drainage cases, depending upon the factual circumstances of each
case. Specifically, this Court stated:
will reaffirm the reasonable use rule that we adopted in Jones
v. Boeing Company, 153 N.W.2d 897 (N.D. 1967), as this rule
is stated and explained in Armstrong v. Francis Corp., 20
N.J. 320, 120 A.2d 4, and Enderson v. Kelehan, 226 Minn.
163, 32 N.W.2d 286 (1948), in all those factual situations where
the provisions of Section 61-01-22, North Dakota Century Code, do
not apply." Jacobsen v. Pedersen, supra at 7.
our initial consideration in the instant case is whether or not
NDCC § 61-01-22 is applicable. If the facts of the case do not require
the application of that section, then the reasonable use guidelines
must also be considered.
Dakota Water Resource Districts N.D.C.C.
§61-16.1-01 Legislative intent and purpose. . . . The legislative
assembly further recognizes the significant achievements that have been
made in the management, conservation, protection, development, and control
of our water and related land resources, and declares that the most efficient
and economical method of accelerating these achievements is to establish
water resource districts encompassing all of the geographic area of the
state, and emphasizing hydrologic boundaries.
- N.D.C.C. § 61-16.1-02(7) Definition of "Project"
- N.D.C.C. § 61-16.1-09 Powers of Water Resource Board
See North Dakota Surface Water Drainage Law for a more complete overview of ND drainage law
Environmental Policy Act of 1969
U.S.C. §4321 et seq.
- Purpose is to protect
- To declare
a national policy which will encourage productive and enjoyable
harmony between man and his environment; to promote efforts which
will prevent or eliminate damage to the environment and biosphere
and stimulate the health and welfare of man; to enrich the understanding
of the ecological systems and natural resources important to the
- Requires that an
environment impact statement be prepared for each major federal project
- The Congress
authorizes and directs that, to the fullest extent possible:
- all agencies
of the Federal Government shall - include in every recommendation
or report on proposals for legislation and other major Federal
actions significantly affecting the quality of the human environment,
a detailed statement by the responsible official on -
environmental impact of the proposed action, any adverse
environmental effects which cannot be avoided should the
proposal be implemented,
to the proposed action,
relationship between local short-term uses of man's environment
and the maintenance and enhancement of long-term productivity,
irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it
- Prior to
making any detailed statement, the responsible Federal official
shall consult with and obtain the comments of any Federal agency
which has jurisdiction by law or special expertise with respect
to any environmental impact involved. Copies of such statement
and the comments and views of the appropriate Federal, State,
and local agencies, which are authorized to develop and enforce
environmental standards, shall be made available to the President,
the Council on Environmental Quality and to the public as provided
by section 552 of title 5 and shall accompany the proposal through
the existing agency review processes;
of Section 404 and its intent (http://www.epa.gov/owow/wetlands/facts/fact12.html
- Riverside Irrigation
District v. Andrews, p. 582 of text
- Purpose of the
Clean Water Act is to protect quality of water (33 U.S.C. §1251)
- The objective
of this chapter is to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters. In order to achieve
this objective it is hereby declared that, consistent with the provisions
of this chapter -
- The basic strategy
is to manage the discharge of pollutants into waters of the U.S. (note
that this law does not prohibit dredging).
- Definitions 33
- The term ''pollutant''
means dredged spoil, solid waste, incinerator residue, sewage, garbage,
sewage sludge, munitions, chemical wastes, biological materials,
radioactive materials, heat, wrecked or discarded equipment, rock,
sand, cellar dirt and industrial, municipal, and agricultural waste
discharged into water.
- The term ''navigable
waters'' means the waters of the United States, including the territorial
- Water pollution
is categoried as either point source water pollution or non-point source
U.S.C. §1362(14) The term ''point source'' means any discernible,
confined and discrete conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container,
rolling stock, concentrated animal feeding operation, or vessel
or other floating craft, from which pollutants are or may be discharged.
This term does not include agricultural stormwater discharges and
return flows from irrigated agriculture.
- (a US
EPA web site) Nonpoint source (NPS) pollution, unlike pollution
from industrial and sewage treatment plants, comes from many diffuse
sources. NPS pollution is caused by rainfall or snowmelt moving
over and through the ground. As the runoff moves, it picks up and
carries away natural and human-made pollutants, finally depositing
them into lakes, rivers, wetlands, coastal waters, and even our
underground sources of drinking water. These pollutants include:
fertilizers, herbicides, and insecticides from agricultural
lands and residential areas;
- Oil, grease,
and toxic chemicals from urban runoff and energy production;
from improperly managed construction sites, crop and forest
lands, and eroding streambanks;
- Salt from
irrigation practices and acid drainage from abandoned mines;
and nutrients from livestock, pet wastes, and faulty septicsystems;
deposition and hydromodification are also sources of nonpoint source
- Need a permit to
discharge a point source pollutant (33
Irrigation District v. Andrews; Tenth Circuit, 1985
sought to build a dam but this would include the discharge of
materials into the waterway.
- The Corps
of Engineers required the plaintiffs to obtain an individual
permit; the plaintiffs felt their activities were encompassed
by a nationwide permit.
- A nationwide
permit is one covering a category of activities occurring throughout
the country that involve discharge of dredge or fill material
that will cause only minimal adverse effects on the environment
when performed separately and that will have only minimal cumulative
of a nationwide permit also is conditioned on not destroying
a threatened or endangered species, or destroying or modifying
the critical habitat of such a species.
- Thus Corps
is mandated to consider not only the "immediate" impacts of
the discharge, but the total impacts, including downstream impacts. Consider
direct and indirect impacts.
- Total impact
in this case would affect an endangered species and thus the
action could not be permitted under a nationwide permit; the
party would have to apply for an individual permit to discharge
material to build the dam.
- State agency can
enforce water quality laws
U.S.C. §1251(b) Congressional recognition, preservation, and
protection of primary responsibilities and rights of States
- It is the
policy of the Congress to recognize, preserve, and protect the
primary responsibilities and rights of States to prevent, reduce,
and eliminate pollution, to plan the development and use (including
restoration, preservation, and enhancement) of land and water
resources, and to consult with the Administrator in the exercise
of his authority under this chapter. It is the policy of Congress
that the States manage the construction grant program under
this chapter and implement the permit programs under sections
1342 and 1344 of this title. It is further the policy of the
Congress to support and aid research relating to the prevention,
reduction, and elimination of pollution and to provide Federal
technical services and financial aid to State and interstate
agencies and municipalities in connection with the prevention,
reduction, and elimination of pollution.
- North Dakota
- States develop
a management plan for non-point source water pollution 33
- State management
- In general,
the Governor of each State, for that State or in combination with
adjacent States, shall, after notice and opportunity for public
comment, prepare and submit to the Administrator for approval a
management program which such State proposes to implement in the
first four fiscal years beginning after the date of submission of
such management program for controlling pollution added from nonpoint
sources to the navigable waters within the State and improving the
quality of such waters.
- Refining the definitions
of point source and non-point source
of Wilderness Defenders v. Forsgren (9th Cir., 2002)
nonpoint source pollution is not statutorily defined, it is
widely understood to be the type of pollution that arises from
many dispersed activities over large areas, and is not traceable
to any single discrete source. Because it arises in such a diffuse
way, it is very difficult to regulate through individual permits.
In the present case, the insecticides at issue meet
the definition of "pollutant" under the Clean Water Act, and
Forest Service aircraft spray these insecticides directly into
rivers, which are waters covered by the Clean Water Act.
- Filling a wetland
is discharing a pollutant (33
U.S.C. §1344), but draining a wetland is not addressed by the Clean
of wetland --
- adjacent wetland
and isolated wetland
- or does the
law now address drainage?
of discharge has been refined so drainage is now subject to
permit requirements. See Burdvick's paper.
- Purpose is to protect
- Strategy is to
protect habitat of endangered species; result can be "protection of
- Already read the
Riverside Irrigation District case in which endangered species are to
be considered in administering the CWA; this act can prevent filling
- Also consider ND
pesticide rules; also see N.D.A.C. Art. 60-03
Migratory Bird treaties
and Scenic River Act
selected rivers of the Nation which, with their immediate environments,
possess outstandingly remarkable scenic, recreational, geologic, fish
and wildlife, historic, cultural, or other similar values, shall be
preserved in free-flowing condition, and that they and their immediate
environments shall be protected for the benefit and enjoyment of present
and future generations. ... a policy that would preserve other selected
rivers or sections thereof in their free-flowing condition to protect
the water quality of such rivers and to fulfill other vital national
- Also see 36 CFR Part 297
- "Study river means a river and the adjacent area within one quarter mile of the banks of the river which is designated for study as a potential addition to the National Wild and Scenic Rivers System pursuant to section 5(a) of the Act." 36 CFR §297.3.
- North Dakota version
- LITTLE MISSOURI
STATE SCENIC RIVER ACT; N.D.C.C.
- "The purpose
of this chapter shall be to preserve the Little Missouri River as
nearly as possible in its present state, which shall mean that the
river will be maintained in a free-flowing natural condition, and
to establish a Little Missouri River commission."
- Farmers who convert
wetlands into crop production are no longer eligible for benefits of
federal government farm program (16
- The purpose of the provision is to protect
- Many producers
(more than 90% in ND) participate in federal government farm program;
thus the rule impacts most ND producers and most ND wetlands
- The provision does
not prohibit draining a wetland, but it does remove the economic incentive
to destroy a wetland so the area can be used for crop production.
- More recently,Corps and EPA stated that it regards ditching with equipment to result in a discharge even if the dirt was deposited on dry land. They then defined discharge as any activity that destroys an area of waters of the United States. Likewise, they defined discharge as any inconsequential degrading of an area of waters of the United States. By eliminating the incidental fallback exception (not defined here) for ditching and defining discharge to include any degradation of a wetland (regardless of whether it was degraded by fill or drainage), the Corps and EPA brought wetland drainage into the NDPES permitting process.
- EPA Regulatory Requirements
- Corps Recognizing Wetlands
- EPA and Army Corps Issue Wetlands Decision
had a statute that was intended to protect wetlands, but it was repealed
after 10 years. Therefore, ND drainage law focuses on protecting neighbors
and adjacent land.
Management Issues (list prepared by Duane Breitling)
- Handbook for North
Dakota Water Managers: Chapter 7 -- Drainage and Wetlands
- Handbook for North
Dakota Water Managers: Chapter 9 -- Roadways
- Handbook for North
Dakota Water Managers: Chapter 8 -- Dikes, Dams and Other Devices
I block water from flowing onto my land?
61-15 Water Conservation
§61-16.1-39 Dams or other devices constructed within a district
shall come under control of a water resource board. All dams,
dikes, and other water conservation and flood control works or devices
constructed within any district, unless specifically exempted therefrom,
shall, without affecting the commission's or the state engineer's authority
relative to such works, automatically come under the jurisdiction of
the water resource board for the district within which the dam, dike,
works, or device exists or is to be constructed. No changes or modification
of any existing dams, dikes, or other works or devices shall be made
without complying fully with the provisions of this chapter.
§ 61-16.1-38. Permit to construct or modify dam, dike, or other
device required - Penalty - Emergency. No dikes, dams, or other
devices for water conservation, flood control regulation, watershed
improvement, or storage of water which are capable of retaining, obstructing,
or diverting more than twelve and one-half acre-feet [15418.52 cubic
meters] of water may be constructed within any district except in accordance
with the provisions of this chapter.
Also see ND Water Resource Boards
v. Pembina County Water Resource District
- "We conclude
it was the legislature's clearly expressed intent that the provisions
of N.D.C.C. § 61-16-15 apply to dikes. Accordingly, the District
did not err in determining these dikes were unauthorized and subject
to removal because the dikes were constructed without proper authorization
under N.D.C.C. § 61-16-15.
- "... we recognized
a landowner could acquire a flowage easement by prescription.
- "Whether or
not the landowners had acquired a prescriptive right vis-a-vis the
downstream landowners, they cannot acquire a prescriptive right
to prevent the State from exercising its authority to regulate and
control the use of public waters for the benefit of the public.
- "The landowners
cannot defeat the State's authority to protect the health, safety,
and welfare of the public by claiming a prescriptive right to maintain
dikes which were constructed in violation of state law."
April 26, 2007