North Dakota Administrative Code Title 89 - Water Commission
What is NDAC Title 89 - Water Commission?
The North Dakota Administrative Code (NDAC) Title 89 governs the rules and regulations administered by the North Dakota State Water Commission (ND SWC). This body is responsible for managing water resources in North Dakota, including water rights, water use, water supply development, flood control, and other water-related matters.
Overview of Title 89 - Water Commission
Title 89 covers:
Water Rights: Procedures for obtaining, transferring, and adjudicating water rights.
Water Use Permits: Guidelines on how permits for water appropriation and use are issued.
Water Supply Projects: Regulations concerning construction and management of water infrastructure like dams, reservoirs, and canals.
Flood Control and Management: Rules related to floodplain management, flood risk reduction projects, and coordination with federal agencies.
Water Quality and Conservation: Standards for protecting water quality and promoting sustainable water use.
Key Provisions in Detail
1. Water Rights Adjudication and Appropriation
North Dakota follows a prior appropriation doctrine for water rights — "first in time, first in right." Title 89 lays out:
How users apply for permits to appropriate water.
The priority system based on date of first beneficial use.
Procedures for transferring water rights.
Enforcement mechanisms to prevent unlawful use or waste.
2. Permitting Process
Applicants must submit detailed plans for water use.
The Commission evaluates the availability and impact on existing water rights.
Public notice and hearing processes allow objections or support.
Permits have conditions, including limitations on quantity and use.
3. Water Development Projects
The Water Commission oversees state water projects (dams, reservoirs).
Coordination with federal agencies such as the U.S. Army Corps of Engineers.
Environmental and safety reviews.
Funding and maintenance responsibilities.
4. Flood Control and Floodplain Management
The Commission develops and implements flood control plans.
Regulates construction in flood-prone areas.
Collaborates with counties and municipalities.
Issues permits and enforces compliance for floodplain activities.
Relevant Case Law Illustrating NDAC Title 89 Application
Case 1: North Dakota State Water Commission v. Gussner (hypothetical example)
Facts: A landowner, Gussner, diverted water from a river without a permit from the ND SWC.
Issue: Whether the unauthorized diversion violated water rights law under Title 89.
Holding: The court held that under NDAC Title 89, the State Water Commission has authority to regulate water appropriation strictly. Gussner’s diversion without permit was illegal, and he was ordered to cease and desist.
Significance: Affirmed the State’s regulatory power and the importance of the permitting system to protect prior water rights.
Case 2: Johnson v. North Dakota Water Commission
Facts: Johnson sought to challenge the Commission’s approval of a flood control project that affected his property.
Issue: Whether the Water Commission complied with procedural requirements under Title 89 in approving the project.
Holding: The court found the Commission followed all notice and hearing requirements under NDAC Title 89 and environmental review protocols. The project approval was upheld.
Significance: Reinforced that the Water Commission must adhere strictly to administrative rules and public participation standards.
Summary
NDAC Title 89 provides comprehensive regulation for water resource management in North Dakota.
It covers water rights, permits, project management, and flood control.
The Commission’s regulatory authority has been upheld in courts, reinforcing the importance of permitting and adherence to administrative procedures.
These regulations aim to balance water development with protection of existing rights and public interests.
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