# Title 89 — Water Commission

## Article 89-02 — Drainage of Water

## Chapter 89-02-04 — Drainage Complaint Appeals

### § 89-02-04-01. Scope of chapter.

This chapter contains the procedure for appealing the decision of a water resource board on a
complaint of drainage constructed without proper approval.
History: Effective October 1, 1988; amended effective January 1, 2015.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
### § 89-02-04-02. Definitions.

Unless the context otherwise provides, the following definitions apply:
1. "Affected landowner" means a person with any property interest, including a lease in land
where the drain complained of is located or land that is affected by the drain complained of.
2. "Aggrieved party" means any individual or entity who participated in the department's or
board's consideration of an appeal and who is actually damaged by the board's or director's
decision.
3. "Appeal" means an appeal from the decision of a board concerning a drain constructed.
4. "Board" means the board of the water resource district in which the complaint is brought.
5. "Complaint" is a document which alleges drainage has been conducted without proper
authorization. It is filed on a form supplied to the water resource board by the department.
6. "Party" includes the petitioner and any respondent, the board from which the decision is
appealed, and any entity or individual that participated in the complaint process in front of the

board. The designation as a party does not bestow standing to appeal a decision of the board
to the department or the decision of the director to a court of law.
7. "Petitioner" means any aggrieved party who files a timely and proper appeal, or an affected
landowner who files a timely and proper demand for hearing with the department.
8. "Respondent" is a person who, within twenty days of notice of an appeal of a board's decision
on a drainage complaint, files a notice with the department of the person's intent to participate
in the appeal. The person who filed the complaint, and the person against whom the complaint
was filed, must be either a respondent or a petitioner. These persons and the board must be
allowed to participate whether or not any notice of participation is filed with the department. A
person may not be a respondent to an appeal of a board's decision unless the person
participated by providing information to the board for its consideration.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
### § 89-02-04-03. Filing of complaint.

All complaints are filed with the water resource board in the county where the drainage is located.
Complaints filed with the department will be forwarded to the appropriate board, unless the complaint is
filed because of the board's inaction on a complaint under section 89-02-04-04.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
### § 89-02-04-04. Complaint to department - Director's action when board fails to act.

If a board does not make a decision upon a drainage complaint within one hundred twenty days of
its filing with the board, the person filing the complaint with the board may file a request for director
action with the department. The request must include a copy of the complaint filed with the board and
any documentation the landowner wishes the department to consider. The director must then determine
whether to commence action against the board or conduct an investigation.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
### § 89-02-04-05. Form of appeal.

If a board makes a decision on a drainage complaint, any appeal to the department by an
aggrieved party must be made within thirty days from the date notice of the board's decision was
received in writing on the form prescribed by the department, and must include:
1. The identity of all parties to the complaint.
2. Petitioner's interest in the water resource board's decision, including a statement of the impact
the decision will have upon the petitioner.
3. The relief petitioner seeks.
4. A statement identifying the errors in the water resource board's decision that entitle the
petitioner to the relief sought.
5. All facts presented to the water resource board that support the petitioner's position.

6. A legal description of the drainage area involved.
7. A map depicting the drainage area and identifying the drainage complained of.
8. A cashier's check to cover the cost of preparing a transcript of the proceedings before the
board.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
### § 89-02-04-06. Department's review of board's decision.

Upon receipt of an appeal on a form provided by the department by an aggrieved party from a
decision of a water resource district under North Dakota Century Code section 61-32-07, the
department must review the board's decision. In the review, the department will consider only:
1. Ownership of the land on which the drain is located.
2. Topographic maps and aerial photographs of the area.
3. Any existing surveys of the area.
4. The documentation and testimony given to the board for its consideration.
5. Any pertinent rules of the appropriate board.
6. The board's decision.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
### § 89-02-04-07. Sufficiency of information on appeal.

1. Once the department's review under section 89-02-04-06 is complete, the department will
determine whether the information reviewed is sufficient to make a sound decision.
2. If the information is not sufficient, the department will either conduct further investigations or
return the record to the board for its further investigation.
3. If the information is sufficient, the director must determine whether a drain, lateral drain, or
ditch has been opened or established contrary to North Dakota Century Code title 61 or any
rules adopted by the department or the board. If so, the director will take one of the three
actions set forth in North Dakota Century Code section 61-32-08. If the drain has not been
opened contrary to North Dakota Century Code title 61 or a drainage rule, the complaint will
be dismissed. In either case the department will notify all parties of the director's decision. The
notice of decision will include the names and addresses of all parties.
History: Effective October 1, 1988; amended effective August 1, 1994; January 1, 2015; January 1,
2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
### § 89-02-04-08. Department's independent investigation.

After reviewing the board's decision and the items identified in section 89-02-04-06, the department
may conduct an investigation if the information is insufficient. The investigation may include an onsite

inspection and survey of the property involved and other activities deemed appropriate by the
department. Any investigation the department undertakes in response to a complaint filed with the
department because a board has not acted will be conducted under this rule.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
### § 89-02-04-09. Demand for hearing by affected landowner.

Hearings demanded under North Dakota Century Code section 61-32-08 by an affected landowner
must be made within fifteen days of notice of the director's decision. The affected landowner must also
notify all parties of the landowner's demand for hearing within fifteen days of the director's decision.
Hearings will be conducted as set forth in sections 89-02-04-11 through 89-02-04-23. The demand
must state the issues to be addressed at the hearing.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
### § 89-02-04-10. Request for hearing by others than affected landowners.

Any aggrieved party may request a hearing on the director's decision. A request for a hearing must
specifically state the reason for the request, and a copy of the request must be sent to the department
and to each party within fifteen days after notice of the director's decision. If granted, the hearing must
be conducted as set forth in sections 89-02-04-11 through 89-02-04-23.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-03-22, 61-32-08
### § 89-02-04-11. Appointment of hearing officer.

Upon receipt of an appeal or demand for a hearing, the director will appoint a hearing officer to:
1. Determine if the appeal is timely and proper.
2. Preside over the hearing.
3. Administer the prehearing activities.
4. Prepare a recommended decision.
History: Effective October 1, 1988; amended effective January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-03-22, 61-32-08
### § 89-02-04-12. Purpose of hearing.

If the hearing officer determines a hearing should be held, one will be conducted to:
1. Obtain further testimony from the parties.
2. Allow the department to examine other witnesses and evidence.
3. Provide the parties with an opportunity to cross-examine witnesses called by the department.
4. Allow the parties to call other witnesses to present evidence.

History: Effective October 1, 1988; amended effective January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-03-22, 61-32-08
### § 89-02-04-13. Qualifications of witnesses at department's hearings.

Unless agreed to by both petitioner and respondent and allowed by the hearing officer, people who
failed to participate in the water resource board's determination under North Dakota Century Code
section 61-32-07 may not be called to present evidence or testimony for consideration. However, the
department may call witnesses on the department's own motion without the agreement of any party if
the department feels information known by the person will assist the hearing officer in making a
recommended decision.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-03-22, 61-32-08
### § 89-02-04-14. Notice of hearing.

When the hearing officer determines a date for a hearing, the hearing officer will notify the water
resource board, the petitioner, and the respondent of the time and date of the hearing. In the case of a
demand by an affected landowner under section 89-02-04-09, the hearing officer must give the notice
of the hearing date within fifteen days of the demand. The notice must be given at least forty-five days
before the date set for the hearing. All hearings will be held in Bismarck, North Dakota.
The notice must state that parties may present testimony at the hearing, petitioner and respondent
may call witnesses at the hearing, and of the hearing officer's appointment as hearing officer. The
notice must also state that each party must identify the position it is urging the director to adopt. Those
urging the director's decision should be affirmed must be designated respondents. Those urging
reversal or modification of the director's decision must be designated petitioners.
History: Effective October 1, 1988; amended effective August 1, 1994; January 1, 2015; January 1,
2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-03-22, 61-32-08
### § 89-02-04-15. Issues limited to those contained in notice.

The notice of hearing will identify the issues to be addressed and identified in the demand or the
request for a hearing. Evidence and testimony at the hearing will be limited to the issues set forth in the
notice of hearing.
History: Effective October 1, 1988.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-03-22, 61-32-08
### § 89-02-04-16. Notice of witnesses at hearing - Time frame.

At least thirty days before the date set for the hearing, the petitioner must notify other parties, the
board, the department, and the hearing officer of all witnesses the petitioner will call and the content of
their testimony. At least thirty days before the date set for the hearing, the respondent must notify other
parties, the board, the department, and the hearing officer of witnesses to be called by the respondent
and the content of their testimony. Within twenty days of the date of the hearing, the petitioner must
notify the parties, the board, the department, and the hearing officer of any rebuttal witnesses to be
called and the content of their testimony. At least forty-five days before the date set for the hearing, the
parties may agree to and submit an alternative scheduling order, as approved by the hearing officer.
The department must notify the parties, the board, and the hearing officer of any witnesses the

department intends to call in the notice of hearing. However, if testimony or evidence not provided to
the board and not considered in the director's determination will be presented by others, the failure of
the department to identify a witness should not preclude the department from providing other testimony
and evidence of a technical nature.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-03-22, 61-32-08
### § 89-02-04-17. Subpoena of witnesses.

If any party desires the hearing officer to subpoena any witness for attendance at the hearing, the
hearing officer must be notified of the intent to subpoena the witness at least seven days before the
date of the hearing. The hearing officer may not subpoena a witness unless the request for a
subpoena:
1. Is written.
2. States the subject matter of the testimony to be given.
3. States the time and date that the witness is to appear.
4. Is accompanied by a certified check for the fees allowed by law for one day for the witness.
The fees allowed by law include mileage to and from the hearing, per diem, and in the case of
the department's staff, the salary for that individual.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-05(13), 61-03-13
Law Implemented: NDCC 61-03-05, 61-32-08
### § 89-02-04-18. Prehearing conference.

A prehearing conference to clarify issues, resolve any conflicts, and stipulate to any matter will be
held at least seven days before the date of the hearing. At the conference the parties must provide
sufficient copies of exhibits to be presented to all parties, the board, the department, and the hearing
officer. The hearing officer may allow the prehearing conference to be held by telephone if exhibits are
provided to all parties, the board, the department, and the hearing officer at least three days before the
prehearing conference.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-03-22, 61-32-08
### § 89-02-04-19. Order of presentation at hearing.

At the hearing the petitioner must present the petitioner's case first. The respondent then presents
the respondent's case, followed by the board and the department. After all participants have presented
their case, a participant may present other evidence or testimony to rebut that presented by another
participant.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-03-22, 61-32-08
### § 89-02-04-20. Cross-examination.

Oral cross-examination of adverse witnesses will be allowed by the petitioner and the respondent.
The petitioner and respondent must designate one individual to cross-examine witnesses that side did

not call. In addition, the department and the board may cross-examine any witnesses they did not call.
However, if a party demonstrates to the hearing officer that the party's position is not adequately
represented by any other party it may be allowed to cross-examine witnesses on the party's own.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-03-22, 61-32-08
### § 89-02-04-21. Record of hearing - Consideration by hearing officer.

After the hearing is over the record will be closed. The hearing officer will consider only material
contained in the record and will not accept and consider any information after the hearing unless the
evidence was not provided at the hearing because of circumstances beyond the control of the party
presenting the evidence. Information submitted after the hearing may be considered by the director in
making the director's decision, but only under North Dakota Century Code section 28-32-25.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
### § 89-02-04-22. Recommendation of hearing officer.

After the hearing officer completes the consideration required under section 89-02-04-20, a written
recommendation must be made to the director.
History: Effective October 1, 1988; amended effective January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
### § 89-02-04-23. Decision of director on record of hearing.

The director will review the record, the hearing officer's recommendation, and any additional
evidence received under North Dakota Century Code section 28-32-25, and make a final determination.
If the conclusion is the drain, lateral drain, or ditch was constructed contrary to a board rule or title 61,
the director will take one of the actions prescribed by North Dakota Century Code section 61-32-08.
If the report concludes the drain, lateral drain, or ditch was lawfully constructed, the complaint will
be dismissed.
History: Effective October 1, 1988; amended effective January 1, 2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-32-08
