Best if printed in landscape.

Environmental protection

Thus 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 1960s).

Common law drainage

• 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.
• Martin v. Weckerly, 364 N.W.2d 93 (N.D. 1985) N.D. Supreme Court
  • The 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.
  • This 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).
  • Therefore, drainage of surface waters complies with the reasonable-use rule if:
    • "(a) There is a reasonable necessity for such drainage;
    • (b) if reasonable care be taken to avoid unnecessary injury to the land receiving the burden;
    • (c) 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
    • (d) 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).
• Nilson v. Markestad, 353 N.W.2d 312 (N.D. 1984) N.D. Supreme Court
• Burlington Northern v. Benson County Water Resource District, 2000 ND 182, 618 N.W.2d 155 N.D. Supreme Court

North Dakota drainage permit

• Purpose is to protect neighbors and adjacent land.
• N.D.C.C. §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.
• N.D.A.C. Chapter 89-02-01 Drainage of Ponds ...
• Young v. Hamilton, 332 N.W.2d 237 (N.D. 1983)
  • The 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:
  • "We 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.
  • Thus, 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.

North 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

National Environmental Policy Act of 1969

• 42 U.S.C. §4321 et seq.
• Purpose is to protect the environment:
  • 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 Nation.
• Requires that an environment impact statement be prepared for each major federal project (42 U.S.C. §4332)
  • 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 -
      • the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented,
      • alternatives to the proposed action,
      • the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
      • any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
    • 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;
• EXAMPLE

Clean Water Act

• Overview of Section 404 and its intent (http://www.epa.gov/owow/wetlands/facts/fact12.html )
• 33 U.S.C. §1344
• 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 U.S.C. 1362
  • 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 seas.
    • Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers (99-1178) 531 U.S. 159 (2001)
• Water pollution is categoried as either point source water pollution or non-point source water pollution 
  • 33 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:
    • Excess fertilizers, herbicides, and insecticides from agricultural lands and residential areas;
    • Oil, grease, and toxic chemicals from urban runoff and energy production;
    • Sediment from improperly managed construction sites, crop and forest lands, and eroding streambanks;
    • Salt from irrigation practices and acid drainage from abandoned mines;
    • Bacteria and nutrients from livestock, pet wastes, and faulty septicsystems;
  • Atmospheric deposition and hydromodification are also sources of nonpoint source pollution.

• Need a permit to discharge a point source pollutant (33 U.S.C. §1342)
  • Nationwide permit
    • Riverside Irrigation District v. Andrews; Tenth Circuit, 1985
    • Plaintiffs 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 effects.
    • Availability 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.
  • Individual permit

• State agency can enforce water quality laws
  • 33 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 statute N.D.C.C. 61-38

• States develop a management plan for non-point source water pollution 33 U.S.C. §1329
  • State management programs
  • 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
  • Animal Feeding Operations
  • League of Wilderness Defenders v. Forsgren (9th Cir., 2002)
    • Although 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.
    • [3] 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 Water Act.
  • definition of wetland --
    • recent US Supreme Court decision (June 2006) -- Rapanos v. United States
  • adjacent wetland and isolated wetland
  • or does the law now address drainage?
    • Definition of discharge has been refined so drainage is now subject to permit requirements. See Burdvick's paper.

Endangered Species Act

• Purpose is to protect endangered species
• Strategy is to protect habitat of endangered species; result can be "protection of wetlands"
• Already read the Riverside Irrigation District case in which endangered species are to be considered in administering the CWA; this act can prevent filling of wetlands.
• Also consider ND pesticide rules; also see N.D.A.C. Art. 60-03

Federal Migratory Bird treaties

• International agreements to protect migratory birds
• A Guide to the Laws and Treaties of the United States for Protecting Migratory Birds -- a U.S. Fish and Wildlife Service web page
• The result of the treaties is protection of wetlands???

Wild and Scenic River Act

• 16 U.S.C. §1271

... 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 conservation purposes.

• 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. 61-29
• "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."

"Swampbuster"

• Farmers who convert wetlands into crop production are no longer eligible for benefits of federal government farm program (16 U.S.C. §§3821-3824).
  • 7 CFR §12.30 et seq
  • USDA web page -- Wetland Conservation Provisions (Swampbuster)
• The purpose of the provision is to protect wetlands
• 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

No-Net Loss Wetlands

ND 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.

Water 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

May I block water from flowing onto my land?

• Regulation of Dikes
• N.D.C.C. 61-15 Water Conservation
• N.D.C.C. §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.
• N.D.C.C. § 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

• Douville 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."

Last updated April 26, 2007

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