# Title 89 — Water Commission

## Article 89-15 — Watercourses

## Chapter 89-15-01 — Watercourse Determinations

### § 89-15-01-01. Definitions.

Unless the context otherwise requires, the following definitions apply:
1. "Artificial watercourse" means a watercourse that was formed by artificial construction but
maintained by natural causes, such as a natural watercourse that is straightened but still
receives the same contributing runoff prior to its straightening.
2. "District" means water resource district.
3. "Natural watercourse", except as used in North Dakota Century Code section 61-32-03.1,
means a watercourse that was formed and maintained by natural causes.
4. "Watercourse" is defined in North Dakota Century Code section 61-01-06. Other terms that
are synonymous with watercourse are river, stream, creek, or channel. Watercourses may be
natural or artificial.
History: Effective July 1, 2024.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-01-06
### § 89-15-01-02. Identifying a watercourse.

For a watercourse to be constituted, the following criteria must be considered. No one criteria alone
will constitute a watercourse, but rather a comprehensive review of the criteria provides the information
necessary for a watercourse determination.
1. Sufficient natural and accustomed flow must be present or possible. This means the flow must
be from a natural source, such as precipitation, snowmelt, or a natural spring, and must
regularly or frequently occur during normal hydrology years.
2. A distinct and defined channel must be maintained by natural and accustomed flows. It is not
necessary that the channel be natural or created by natural causes, but the flow in the
channel must be sufficient enough to maintain the channel without routine artificial
maintenance, including removal of silt, sediment, and vegetation.
3. A distinct and defined channel must have a definite bed and banks. It is not necessary that the
banks be well defined or sharply cut, but they must be easily discernable in times of little
vegetative cover and have some capacity to carry flowing water.
4. A plainly defined channel must be present and easily discernable.

5. A channel of permanent character must be present and evident upon site inspection and
review of aerial photography. The channel must have existed in that location for several years
or have the high likelihood of existing there for several years in the case of a recently
constructed artificial watercourse.
6. The land use of the site in question may play a role, including whether the land is routinely
used for agricultural purposes and if agricultural crops would be injured by any received
waters.
History: Effective July 1, 2024.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-01-06
### § 89-15-01-03. Information to use in making a watercourse determination.

1. Data or information to be utilized includes the following:
a. Relevant and readily available aerial photography.
b. Mapping products including United States geological survey quads, LiDAR data, general
land office notes, and existing surveys.
2. Information collected or observed during a site visit, including notes, photos, and simple
surveying exercises, if warranted.
3. Any other information that may assist in a determination, including:
a. A hydrology analysis of the watershed that provides the watershed area contributing to
the site and flow quantity and flow frequency to expect at the site.
b. Any court case history involving watercourse determinations.
c. Any further scientific justification necessary, including analyzing channel forming
velocities, soil types, sediment transport, and geomorphology.
History: Effective July 1, 2024.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-01-06
### § 89-15-01-04. Making a watercourse determination.

Other than the department, only water resource districts may determine if a watercourse is
constituted by definition if the district needs to identify a watercourse as part of its powers, authority, or
responsibilities under North Dakota Century Code title 61. If a district requests a watercourse
determination from the department according to section 61-01-06, the department's decision is final and
subject to appeal under North Dakota Century Code section 61-03-22. Watercourse determinations
need not be formally made if they are made in conjunction with a permitting or complaint or appeal
decision under North Dakota Century Code title 61, unless requested by a district under section
61-01-06. Only the department must provide a formal determination if requested by a district under
section 61-01-06.
History: Effective July 1, 2024.
General Authority: NDCC 61-03-13
Law Implemented: NDCC 61-01-06
