# Title 61 — Waters

## Chapter 61-38 — Dredged and Fill Material Disposal

### § 61-38-01. Definitions.

(Contingent effective date - See note)
The department of water resources shall adopt definitions consistent with federal law for,
among other words: "dredged material", "fill material", "general permit", "person", "waters of the
state", and "wetlands".
### § 61-38-02. Powers.

(Contingent effective date - See note)
The department of water resources has the following powers:
1. To exercise general supervision of the administration and enforcement of this chapter
and all rules and orders adopted pursuant to this chapter.
2. To advise, consult, and cooperate with other agencies of the state, the federal
government, and other states and interstate agencies, and with affected groups,
political subdivisions, and industries in furtherance of the purposes of this chapter.
3. To accept and administer loans and grants from the federal government and from
other sources, public or private, for carrying out any of its functions. The loans and
grants may not be expended for purposes other than those for which the loans and
grants were provided.
4. To enter upon or through a permittee's premises where dredged or fill material is
discharged, after written notice to the permittee.
5. To exercise all incidental powers necessary to carry out the purposes of this chapter.
6. To make rules governing the application, issuance, denial, modification, or revocation
of permits for the discharge of dredged or fill material into waters of the state and for
the administration of this chapter.
7. To hold any hearings necessary for the administration of this chapter.
8. To initiate actions in court for the enforcement of this chapter, including actions to
enjoin any threatened or continuing violation of any requirement.
9. To issue administrative orders to restrain any person from engaging in any
unauthorized activity.
10. To take all action necessary or appropriate to secure to the state the benefits of
section 404 of the Clean Water Act [33 U.S.C. 1344].
### § 61-38-03. Permits - Certification from department of health and human services

required. (Contingent effective date - See note)
The department of water resources may not issue a permit under this chapter without a
certification from the department of health and human services that the permitted activity will not
adversely affect water quality.
### § 61-38-04. Specification of disposal sites.

(Contingent effective date - See note)
The department of water resources shall specify a disposal site for each permit issued.
Each disposal site must be specified for each permit through application of rules adopted by the
department. The rules must be consistent with federal law. The department may prohibit the
specification of any defined area as a disposal site, withdraw any defined area from
specification as a disposal site, or deny or restrict the use of any defined area for specification
as a disposal site when the department determines, after notice and opportunity for public
hearing, the discharge of dredged or fill materials will have an unacceptable adverse effect on
municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas.
### § 61-38-05. Discharge of dredged or fill material - Permit required - Exceptions.

(Contingent effective date - See note)
1. Except as otherwise provided by this chapter, no person may discharge dredged or fill
material into waters of the state unless that person has a permit from the department
of water resources. No person may discharge dredged or fill material in violation of a
permit. A permit is not required for:

a. The discharge of dredged or fill material when an activity is authorized by a
general permit issued pursuant to section 61-38-06;
b. Normal farming, silviculture, and ranching activities such as plowing, seeding,
cultivating, minor drainage, harvesting for the production of food, fiber, and forest
products, or upland soil and water conservation practices;
c. Maintenance, including emergency reconstruction of recently damaged parts, of
currently serviceable structures such as dikes, dams, levies, groins, riprap,
breakwaters, causeways, bridge abutments or approaches, and transportation
structures, which does not change the character, scope, or size of the original fill
design;
d. Construction or maintenance of farm or stock ponds or irrigation ditches or the
maintenance of drainage ditches;
e. Construction of temporary sedimentation basins on a construction site that does
not include placement of fill material into waters of the state;
f. Construction or maintenance of farm roads or forest roads, or temporary roads for
moving mining equipment, where the roads are constructed and maintained, in
accordance with best management practices, to assure flow and circulation
patterns and chemical and biological characteristics of the waters of the state are
not impaired, the reach of the waters of the state is not reduced, and any adverse
effect on the aquatic environment will be otherwise minimized; or
g. The placement of fill material associated with activities the state regulates by
requiring best management practices under chapter 61-28.
2. Any discharge of dredged or fill material into waters of the state incidental to any of the
activities identified in subdivisions a through g of subsection 1 must have a permit if it
is part of an activity with the purpose of converting an area of waters of the state into a
use to which it was not previously subject, where the flow or circulation of waters of the
state may be impaired or the reach of such waters reduced, or if the discharge
contains a toxic pollutant. Where the proposed discharge will result in significant
discernible alterations to flow or circulation, the presumption is flow or circulation may
be impaired by the alteration.
### § 61-38-06. General permits.

(Contingent effective date - See note)
1. In carrying out the functions relating to the discharge of dredged or fill material, the
department of water resources, after notice and opportunity for public hearing, may
issue general permits on a state or regional basis for any category of activities
involving discharges of dredged or fill material if the department determines the
activities in the category are similar in nature, will cause only minimal adverse
environmental effects when performed separately, and will have only minimal
accumulative adverse effects on the environment. Any general permit issued under
this section must set forth the requirements and standards applicable to any activity
authorized by the general permit. General permits must be issued pursuant to rules
adopted by the department which are consistent with federal law.
2. A general permit may be revoked or modified by the department of water resources,
after opportunity for public hearing, if the department determines the activities
authorized by the general permit have an adverse impact on the environment or are
authorized more appropriately by individual permits.
3. The department of water resources may require an individual permit for any proposed
activity under a general permit where the nature or location of the activity makes an
individual permit more appropriate.
### § 61-38-07. Emergency permits.

(Contingent effective date - See note)
The department of water resources may issue a temporary emergency permit for the
discharge of dredged or fill material if unacceptable harm to life or severe loss of physical
property is likely to occur before a permit could be issued or modified under procedures
normally required.

### § 61-38-08. Permit application - Notice - Hearing.

(Contingent effective date - See note)
Any person desiring to discharge dredged or fill material for which a permit is required shall
file an application with the department of water resources. The application must be on a form
prescribed by the department and must include information required by the department. The
department may issue a permit after notice and opportunity for public hearing. Within fifteen
days of receipt of all the information required to complete an application for a permit, the
department shall publish the notice.
### § 61-38-09. Proceedings.

(Contingent effective date - See note)
1. Any proceeding to determine compliance with or violation of the provisions of this
chapter or any rule, order, or condition in a permit issued pursuant to this chapter by
the department of water resources must be conducted in accordance with chapter
28-32.
2. Any person claiming to be aggrieved or adversely affected by actions taken or by any
rule or order issued pursuant to this chapter may request a hearing by the department
of water resources if no hearing on the matter resulting in the action has been held. If
a hearing has been held, the person claiming to be aggrieved or adversely affected
may petition for reconsideration and may appeal in accordance with chapter 28-32.
### § 61-38-10. Penalties.

(Contingent effective date - See note)
The department of water resources may assess or sue to recover civil penalties and seek
criminal remedies as provided in this section.
1. The department may assess or recover civil penalties for discharges of dredged or fill
material without a required permit or in violation of any permit condition of up to five
thousand dollars per day of such violation.
2. The department may seek criminal fines against any person who willfully or with
criminal negligence discharges dredged or fill material without a required permit or
violates any permit condition issued under this chapter of up to ten thousand dollars
per day of the violation.
3. The department of water resources may seek criminal fines against any person who
knowingly makes a false statement, representation, or certification in any application,
record, report, plan, or other document filed or required to be maintained under this
chapter or any rules adopted pursuant to this chapter, or falsifies, tampers with, or
knowingly renders inaccurate any monitoring device or method required to be
maintained under the permit of up to five thousand dollars for each instance of
violation.
### § 61-38-11. Restoration.

(Contingent effective date - See note)
In lieu of or in addition to the penalties authorized under section 61-38-10, the department
of water resources may require restoration of areas in which dredged or fill material has been
discharged illegally. If the department determines any person has discharged dredged or fill
material without a permit or in violation of any permit condition, the department shall notify the
person by registered or certified mail. The notice must specify the nature and extent of
noncompliance and state the area in which the dredged or fill material is located must be
restored to the satisfaction of the department within thirty days of receipt of the notice. If the
area is not restored as required, the department shall cause the restoration of the area and
assess the cost of the restoration against the person responsible for the illegal discharge.
