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Peter Welte: Resources available to help with drainage issues

The topic of drainage and drain permitting is so important, and so broad, that it is worth revisiting from time to time. With spring around the corner, farmers will soon be out in their fields and assessing land to clean old drains or establish n...

Peter Welte

The topic of drainage and drain permitting is so important, and so broad, that it is worth revisiting from time to time. With spring around the corner, farmers will soon be out in their fields and assessing land to clean old drains or establish new drainage.

The starting point in North Dakota is North Dakota Century Code Chapter 61-32, “Drainage.” And NDCC Title 61, “Waters,” is generally relevant, as well. But the general starting point for surface and sub-surface drainage is NDCC 61-32.
For surface drains, the general rule is NDCC 61-32-03. Per that statute, any person establishing a surface drain with a watershed area of 80 acres or more must first secure a permit. The permit application is submitted to the state engineer who refers the application to the water resource district where the majority of the drainage area is located, for consideration and approval of the water resource district.
Importantly, the state engineer can retain final authority over the decision by requiring applications with “statewide or interdistrict significance” to be returned to the state engineer for final approval.
Notably, a drainage permit might not be granted until an investigation discloses the quantity of water that will be drained will not flood or adversely affect downstream lands. And if the investigation shows downstream landowners will be adversely affected, the water resource district might not issue a permit until flowage easements are obtained. These flowage easements generally must be filed with the county recorder’s office.
Liability for improper drainage is also established by NDCC 61-32-03. Anyone draining an area of more than 80 acres without a permit is liable for all damage sustained by downstream landowners. Additionally, they are guilty of an infraction. Provided, however, the state engineer has authority to establish rules for temporary permits for emergency drainage.
The process for subsurface drainage - commonly known as drain tile - is similar, but different enough to warrant its own section in the NDCC. Under NDCC 61-32-03.1, a subsurface drainage system comprising 80 acres requires a permit. The application form for this permit is developed by the state engineer. But unlike surface drainage, the permit is submitted directly to the water resource district where the majority of the drained land is located. The local water resource district considers the application and approves it.
Although the water resource district might make the permit a “conditional permit,” and might attach “necessary conditions” to a permit, the water resource district generally might not deny the application. Unless, that is, the water resource district makes a determination the application is either of statewide significance, or the proposed drainage will adversely affect lands of downstream landowners within one mile of the proposed drainage.
After the permit is approved, or conditionally approved, the water resource district must forward copies of approved permits to the state engineer. If the water resource district finds the application proposes drainage of statewide significance, the application must be forwarded to the state engineer for the consideration and approval of the state engineer within 30 days.
Additionally, the permit applicant for such subsurface drainage must provide a 30-day notice to downstream property owners within one mile of the proposed subsurface drainage. If investigation by the water resource district or the downstream landowner shows they will be adversely affected, flowage easements must be required before issuing a drainage permit. As with surface drainage, failure to follow the law results in civil liability, and is also an infraction.
Anyone seeking to perform surface or subsurface drainage would be wise to consult an attorney before beginning such a project.
Editor’s note: Welte is an attorney with the Vogel Law Firm in Grand Forks, N.D., and a small grains farmer in Grand Forks County.

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