# Title 89 — Water Commission

## Article 89-03 — Water Appropriations

## Chapter 89-03-01 — Water Permits

### § 89-03-01-01. Conditional water permit application submission.

A conditional water permit application must be submitted to the department on the form provided by
the department. A map containing the information prescribed by the department must accompany the
application. Unless the department first approves another type of map, the map must be prepared from
a survey, aerial photograph, or topographic map, and must be certified by a North Dakota-licensed
surveyor. The department may require information not requested in the application.
History: Amended effective April 1, 1989; February 1, 1994; July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-03

### § 89-03-01-01.1. Priority date.

The department must note the receipt date of a properly completed application on the application.
Except for water applied to domestic, livestock, or fish, wildlife, and other recreational uses where a
water permit is not required, this filing date establishes the application's original priority date, subject to
the application's final acceptance and issuance of a perfected water permit by the department. For
water applied to domestic, livestock, or fish, wildlife, and other recreational uses where a water permit
is not required, the priority date is the date the quantity of water was first used.
History: Effective April 1, 1989; amended effective August 1, 1994; July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-04, 61-04-06.3
### § 89-03-01-01.2. Land, property, or other interest requirement for conditional water permit.

A conditional water permit applicant must have a legal interest where the point of diversion and
conveyance system will be located. The applicant must demonstrate to the department's satisfaction
that the applicant has the capability to put the water to beneficial use. If the applicant is seeking a
permit for irrigation, the applicant must also have a legal interest in the land to be irrigated. If the
applicant is seeking a permit to impound water, the applicant must have a legal interest in the property
inundated by the impounded water. The department may require additional verification of a property
interest demonstrating the capability to put the water to beneficial use.
History: Effective April 1, 1989; amended effective August 1, 1994; April 1, 2004; July 1, 2014;
January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-02.2, 61-04-03, 61-04-06
### § 89-03-01-01.3. When a water permit for stored water must be obtained.

A water permit may authorize water storage for flood control or other reasons deemed necessary
by the department. However, authorization to store water for flood control or other reasons does not
create a water right. If stored water will be put to beneficial use, a water permit must be obtained before
beneficial use.
History: Effective November 1, 1989; amended effective August 1, 1994; July 1, 2014; January 1,
2015; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-01.1, 61-04-01.2, 61-04-02
### § 89-03-01-01.4. Amount of water that may be held in storage under a water permit.

Unless otherwise authorized by the department, any person authorized to store water, except for
flood control, may only fill the reservoir to the amount authorized in the permit once each year. The
reservoir will be filled during the first runoff following February first of each year. A consumptive use
authorized in the water permit must be taken from the stored water. Unless otherwise authorized by the
department and with the exception of water stored for flood control, any inflows to the reservoir after the
reservoir has been filled for the year must be allowed to pass through the reservoir.
History: Effective November 1, 1989; amended effective July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-01.2, 61-04-02, 61-04-06.2
### § 89-03-01-01.5. Sale of excess water by an incorporated municipality or rural water system.

Any incorporated municipality or rural water system that appropriates water in excess of its current
needs under North Dakota Century Code section 61-04-06.2 may sell the excess water provided:

1. The municipality or rural water system is supplying all the demands of its residents or
members;
2. The agreement for sale of water is terminable by the incorporated municipality or rural water
system upon six months' notice to the purchasing entity; and
3. The agreement for sale is approved by the department.
The excess water may not be sold for any use other than that stated in the conditional or perfected
water permit. This section does not apply to agreements for the sale of water entered into before
November 1, 1989.
History: Effective November 1, 1989; amended effective June 1, 1998; July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-02-27, 61-04-06.2
### § 89-03-01-02. Correction of unsatisfactory application.

Repealed effective January 1, 2023.
### § 89-03-01-03. Application amendment.

1. An applicant may amend a conditional water permit application. If the department determines
the amendment is likely to adversely affect another applicant whose application was submitted
after the application sought to be amended and before the proposed amendment, the
department must change the priority date of the amended application to the date the
amendment request was received.
2. A request to amend an application may be by letter or by the submission of an amended
application form for a conditional water permit.
3. If any notice of the application has been mailed before the request to amend, the department
may require the applicant to mail a corrected notice of the application to all persons who were
sent the original notice and submit an affidavit of service of corrected notice to the department.
If the notice of the application has been published, the department may require a corrected
notice to be published. The applicant must pay publication costs.
History: Amended effective April 1, 1989; April 1, 2000; July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-04
### § 89-03-01-03.1. Transfer of an application to another parcel.

Repealed effective January 1, 2023.
### § 89-03-01-03.2. Application assignment.

A request to assign a conditional water permit application to another person must be submitted to
the department in writing. When title of land for which there is a pending application is transferred,
either the transferee or the applicant may apply for application assignment. The assignment request
must describe the transferee's interest in the application permit. The department may request additional
documentation of the transferee's interest.
History: Effective April 1, 1989; amended effective April 1, 2000; July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-03, 61-04-04, 61-04-15

### § 89-03-01-03.3. Evaporative losses.

When a conditional water permit application involves water stored in a reservoir, a volume of water
equal to the mean net evaporative loss over the surface area of the impoundment at the principal
spillway elevation must be requested as an annual use that will be taken from the stored water.
History: Effective April 1, 1989; amended effective August 1, 1994; July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-03, 61-04-06.2
### § 89-03-01-04. Notice of application.

1. When a proper conditional water permit application is filed, the department will forward the
appropriate number of completed notice of application forms to the applicant. The notice must
include the following essential facts:
a. All requested points of diversion;
b. Requested annual appropriation and withdrawal rate;
c. Requested source and purpose of use; and
d. Applicant's name; and
e. Newspaper in which the water permit application notice must be published.
The notice must also state that the notice published in the newspaper will contain a date by
which any person having an interest in the application may file written comments regarding
the proposed appropriation with the department and that anyone who files written comments
will be mailed a copy of the department's recommended decision on the application.
2. Upon receipt of the completed notice of application forms, the applicant must send a notice of
application form as provided in North Dakota Century Code section 61-04-05. The
determination of title owners at the time of the application must be based on title records on
file with the appropriate county recorder. For land subject to a contract for deed, the contract's
grantor and grantee must both be notified.
3. After notice of application forms have been mailed to those required by North Dakota Century
Code section 61-04-05, the applicant must properly complete an affidavit of notice and return
it to the department. The affidavit of notice must state how the applicant determined the record
title owners and must list the names and addresses of those who were sent notices.
History: Amended effective April 1, 1989; November 1, 1989; February 1, 1994; April 1, 2000; April 1,
2004; July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-05
### § 89-03-01-05. Publication of notice of water permit applications.

In addition to the requirements in North Dakota Century Code section 61-04-05, a copy of the
notice of the conditional water permit application to be published must be sent to the applicant.
History: Amended effective April 1, 1989; November 1, 1989; February 1, 1994; August 1, 1994;
April 1, 2000; July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-05

### § 89-03-01-05.1. Notice of decision on water permit application.

Repealed effective April 1, 2000.
### § 89-03-01-06. Filing proof of publication and mailing.

Repealed effective April 1, 1989.
### § 89-03-01-06.1. Consideration of evidence not contained in the state engineer's record.

Repealed effective April 1, 2000.
### § 89-03-01-06.2. Notice of continuance - Responsibility.

Repealed effective July 1, 2014.
### § 89-03-01-06.3. Record - Official notice.

Unless specifically excluded by the department or the hearing officer, the record in each water
permit application proceeding includes, when available, the following reports or records, or portions
thereof, relevant to the proposed appropriation:
1. United States department of agriculture natural resources conservation service reports,
including the North Dakota hydrology manual, North Dakota irrigation guide, and county soil
survey reports.
2. United States geological survey and department streamflow records.
3. United States geological survey and department water quality data.
4. National oceanic and atmospheric administration climatological data.
5. United States geological survey topographic maps.
6. Department water permit files.
7. Department annual water use reports.
8. Department and United States geological survey ground water level data.
9. North Dakota board of water well contractors well completion reports.
10. Department test hole records.
11. Department water resource investigations reports and ground water study reports.
12. Department and United States geological survey county ground water study reports.
13. Information in department and state water commission files, records, and other published
reports.
History: Effective February 1, 1994; amended effective April 1, 2000; July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-05.1

### § 89-03-01-07. Necessity of works and construction of works for a conditional water permit.

A conditional water permit application may only be considered if works are associated with the
proposed appropriation. For any water appropriation that involves the construction of works that require
a construction permit from the department, the water permit may be issued before receipt of the
construction permit. However, the water permit is not valid until the construction permit is issued.
History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-02
### § 89-03-01-08. Point of diversion.

The department may not issue a water permit that allows for the appropriation of water from more
than one water source. An appropriation from the main channel of a river and from a tributary of the
river is an example of an appropriation from more than one water source. The department may issue a
water permit that allows for points of diversion from different locations from the same water source,
provided the department finds good cause for doing so.
History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-06.2
### § 89-03-01-09. Appropriation not requiring water permit.

Repealed effective January 1, 2023.
### § 89-03-01-10. Emergency or temporary authorization.

An application for a temporary water permit must be made on the form provided by the department.
In that request, the applicant must indicate the purpose for which water will be used, water quantity
needed, proposed point of diversion, type of use, withdrawal rate, water source, proposed use dates,
and applicant's address. The department will evaluate the request and, if it is granted, the department
will list on the temporary water permit the conditions that govern the appropriation.
An applicant for emergency water use, if the situation warrants, may call the department requesting
immediate water use. Following an oral request and oral approval by the department for authorization,
a temporary application form must be submitted.
The applicant for a temporary water permit is responsible for all damages that may be caused to
other appropriators or any other individual because of the emergency or temporary water use.
History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-02.1
### § 89-03-01-10.1. Temporary water transfer for irrigation.

To accommodate annual crop rotation requirements, the holder of a water permit for irrigation may
make a request to the department for the temporary transfer of the volume of water appropriated from
an approved point of diversion to another tract of land. The transfer must be made for an entire
irrigation season and conform to the terms and conditions of the water permit, except that no water
right will accrue to the land under temporary irrigation. Irrigation may not take place on the tract of land
from which the transfer is made during that irrigation season. The request for a transfer must be made
by May fifteenth of the year the transfer is to be in effect.
History: Effective August 1, 1994; amended effective January 1, 2023.

General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-02.1
### § 89-03-01-10.2. Temporary permit fees.

The following filing fee schedule will be used for temporary water permit applications. The fee must
be included with the application. The department may waive the fees for certain emergency uses of a
temporary water permit, including firefighting.
Volume of Water Requested:
Less than one acre-foot $75
One to ten acre-feet $125
More than ten acre-feet $200
Filing fees are not required for requests made under section 89-03-01-10.1.
History: Effective July 1, 2014; amended effective January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-02.1, 61-04-06.2
### § 89-03-01-11. Competing applications.

Conditional water permit applications from the same source for different uses will be considered
competing applications if received by the department within ninety days of each other.
History: Effective April 1, 1989; amended effective January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-06.1
### § 89-03-01-12. Extensions and cancellation.

Where the time has expired to put any portion of the water appropriated under a conditional water
permit to the beneficial use named in the permit, the department will notify the permitholder. The
department will provide the permitholder with a form to request an extension for applying the water to
the beneficial use and to explain why an extension should be granted. Except in overriding
circumstances, no extension will be granted when other conditional water permit applications are
pending from a limited supply source.
History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-14
### § 89-03-01-13. Report of water use.

The form for reporting water use under North Dakota Century Code section 61-04-27 must include
the permit number, water usage amount, pumping rate, if applicable, and any other information the
department may require. One form must be filed for each water permit held.
History: Effective April 1, 1989; amended effective July 1, 2014; January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-04-27

### § 89-03-01-13.1. Fines - Water use reporting.

A permitholder who fails to timely submit a complete and accurate water use report under North
Dakota Century Code section 61-04-27 will be assessed a fine of two hundred fifty dollars for each
water permit.
History: Effective July 1, 2014; amended effective January 1, 2023.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-03-23, 61-04-27
### § 89-03-01-14. Notice.

Repealed effective January 1, 2023.
